                                                                                                                         ACCEPTED
                                                                                                                     03-14-00774-CV
                                                                                                                             5993560
                                                                                                          THIRD COURT OF APPEALS
                                                                                                                     AUSTIN, TEXAS
                                                                                                                7/9/2015 10:29:38 AM
                                                                                                                   JEFFREY D. KYLE
                                                                                                                              CLERK
                                          No. 03-14-00774-CV

                                     IN THE COURT OF APPEALS                                     FILED IN
                                                                                         3rd COURT OF APPEALS
                                 FOR THE THIRD DISTRICT OF TEXAS                             AUSTIN, TEXAS
                                            AT AUSTIN                                    7/9/2015 10:29:38 AM
_____________________________________________________________________________________________________________________
                                                                                            JEFFREY D. KYLE
                                                                                                   Clerk
                                       ELLEN JEFFERSON, D.V.M.

                                                                       Appellant,
                                                        v.

            TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS
       AND NICOLE ORIA, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR

                                                                       Appellees.
__________________________________________________________________

              On Appeal from the 250th Judicial District Court
                         of Travis County, Texas
__________________________________________________________________

                      BRIEF OF APPELLANT ELLEN JEFFERSON, D.V.M.


DAVID F. BROWN                                                RYAN CLINTON
State Bar No. 03108700                                        State Bar No. 24027934
dbrown@ebblaw.com                                             rdclinton@dgclaw.com
DAVID P. BLANKE                                               DAVIS, GERALD & CREMER, P.C.
State Bar No. 02453600                                        111 Congress Ave., Suite 1660
dblanke@ebblaw.com                                            Austin, Texas 78701
EWELL, BROWN & BLANKE, LLP                                    Ph: (512) 537-9938
111 Congress Ave., 28th Floor                                 Fax: (432) 687-1735
Austin, TX 78701
Ph: (512) 457-0233


                         Counsel for Appellant Ellen Jefferson, D.V.M.

                                       Oral Argument Requested
                             IDENTITY OF PARTIES


Appellant/Plaintiff:

Ellen Jefferson, D.V.M. (“Dr. Jefferson”)

Counsel for Dr. Jefferson:

Trial & Appellate Counsel:

David F. Brown
State Bar No. 03108700
dbrown@ebblaw.com
David P. Blanke
State Bar No. 02453600
dblanke@ebblaw.com
Ewell, Brown & Blanke, LLP
111 Congress Ave., 28th Floor
Austin, TX 78701
Ph: (512) 457-0233

Appellate Counsel:

Ryan Clinton
State Bar No. 24027934
rdclinton@dgclaw.com
Davis, Gerald & Cremer, P.C.
111 Congress Ave., Suite 1660
Austin, Texas 78701
Ph: (512) 537-9938
Fax: (432) 687-1735




                                        ii
Appellees/Defendants:

Texas State Board of Veterinary Medical Examiners (“TBVME”) and Nicole Oria,
In Her Official Capacity as Executive Director

Counsel for Defendants:

Andrew Lutostanski
State Bar No. 24072217
andrew.lutostanski@texasattorneygeneral.gov
Ted A. Ross
State Bar No. 24008890
ted.ross@texasattorneygeneral.gov
Office of the Attorney General of Texas
Administrative Law Division
P. O. Box 12548
Austin, TX 78711
(512) 475-4200




                                      iii
                                             TABLE OF CONTENTS

Identity of Parties ...................................................................................................... ii

Table of Authorities ................................................................................................ vii
Statement of the Case............................................................................................. xiii

Statement Regarding Oral Argument ......................................................................xv

Issues Presented ..................................................................................................... xvi

Introduction ................................................................................................................1
Statement of Facts ......................................................................................................4

Summary of the Argument.......................................................................................19
Argument..................................................................................................................21
I.       The Trial Court Erred by Dismissing Dr. Jefferson’s Uniform
         Declaratory Judgment Act Claims for Failure to First Exhaust
         Administrative Remedies Because—As a Matter of Law—the
         Doctrine Does Not Apply. .............................................................................21
         A. The Baseline Rules: Texas District Courts Have Subject-Matter
            Jurisdiction Unless It Is Expressly Taken Away, and Texas
            Governmental Agencies Have No Jurisdiction Unless It Is
            Expressly Given........................................................................................22

         B. Dr. Jefferson Was Not Required to Exhaust Administrative
            Remedies Because the Legislature Did Not Confer Upon the
            TBVME Exclusive Jurisdiction Over the Treatment of Animals
            by Their Owners; And Regardless, Several Exceptions to the
            Exhaustion Doctrine Apply Here. ............................................................23
              1. The Legislature did not confer upon the TBVME exclusive
                 jurisdiction over the care and treatment of animals by their
                 owners, owners’ employees, or designated caretakers. ......................24




                                                             iv
           2. Even if the Legislature had granted the TBVME exclusive
              jurisdiction over conduct covered by the “owner exemption,”
              several exceptions to the exhaustion-of-remedies doctrine
              apply to retain the trial court’s jurisdiction over Dr. Jefferson’s
              UDJA claims. ......................................................................................30
                a. The exhaustion doctrine does not divest a district court of
                   jurisdiction to adjudicate claims alleging that a governmental
                   agency is acting outside its authority. ............................................31
                b. The exhaustion doctrine does not divest a district court of
                   jurisdiction if forcing a plaintiff to first exhaust administrative
                   remedies would subject the plaintiff to irreparable harm. .............33
                c. The exhaustion doctrine does not divest a district court of
                   jurisdiction to determine legal questions .......................................36
                d. The exhaustion doctrine does not require a plaintiff to
                   participate in an “exercise in futility.” ...........................................37
       C. The Trial Court’s Dismissal of Dr. Jefferson’s UDJA Claims Is Also Not
          Justified on the Unreached Grounds Presented in Defendants’ Plea to the
          Jurisdiction................................................................................................40
II.    The Trial Court Should Have Declared—and This Court Should Declare—
       That the Board’s Prosecution of Dr. Jefferson for Her Treatment and Care of
       Animals Owned by San Antonio Pets Alive Is Ultra Vires and Unlawful. .. 44

       A. Dr. Jefferson’s Care and Treatment of San Antonio Pets Alive’s Animals
          Was “By the Owner of the Animal, an Employee of the Owner, or a
          Designated Caretaker of the Animal.” .....................................................45
       B. Dr. Jefferson Established San Antonio Pets Alive with the Intent to Save
          Animals’ Lives—Not to Violate a Law. ..................................................50

III.   The Trial Court Also Erred by Denying Dr. Jefferson’s Request for
       Mandamus Relief. ..........................................................................................53
IV.    The Trial Court Erred by Issuing Unrequested, Ambiguous, and Legally
       Incorrect Declarations....................................................................................57




                                                          v
Prayer .......................................................................................................................60

Certificate of Service ...............................................................................................62
Certificate of Compliance ........................................................................................63



                                                       APPENDIX
Exhibit A - Trial Court Judgment (1.CR.855-57)

Exhibit B - Findings of Fact and Conclusions of Law (2.C.R. 36-38)

Exhibit C - Owner Exemption to Veterinary Licensing Act
            (TEX. OCC. CODE 801.0004)

Exhibit D - TBVME 2012 “Board Notes” (3.RR.PX18:EJ000638)

Exhibit E - SOAH Order




                                                              vi
                                     TABLE OF AUTHORITIES

CASES

Abbott Labs. v. Gardner,
 387 U.S. 136 (1967), abrogated on other grounds in
 Califano v. Sanders, 430 U.S. 99 (1977) ....................................................... 41, 42

Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor & Assocs.,
 267 S.W.3d 413 (Tex. App.—Houston [14th Dist.] 2008, no pet.) .....................32

BCY Water Supply Corp. v. Residential Inv. Inc.,
 170 S.W.3d 596 (Tex. App.—Tyler 2005, pet. denied) .......................................26

Butnaru v. Ford Motor Co.,
 84 S.W.3d 198 (Tex. 2002) ..................................................................................26

Cash Am. Int’l Inc. v. Bennett,
 35 S.W.3d 12 (Tex. 2000) ............................................................................. 25, 26

City of Hous. v. Williams,
  99 S.W.3d 709 (Tex. App.—Houston [14th Dist.] 2003, no pet.) .......................34

City of Round Rock v. Whiteaker,
  241 S.W.3d 609 (Tex. App.—Austin 2007, pet. denied) ............ 22, 23, 26, 54, 59

City of Sherman v. Pub. Util. Comm’n of Tex.,
  643 S.W.2d 681 (Tex. 1983) ......................................................................... 24, 29

Cobb v. Harrington,
 144 Tex. 360, 190 S.W.2d 709 (1945) .................................................................54

Dir. of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex.,
 600 S.W.2d 264 (Tex. 1980) ................................................................................54

Dow Chem. v. Francis,
 46 S.W.3d 237 (Tex. 2001) ..................................................................................44

Dubai Petroleum Co. v. Kazi,
 12 S.W.3d 71 (Tex. 2000) .............................................................................. 22, 23

                                                      vii
Fed. Sign v. Tex. S. Univ.,
  951 S.W.2d 401 (Tex. 1997) ................................................................................54

Forest Oil Corp. v. El Rucio Land & Cattle Co.,
 446 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) ......................27

Fort Worth Elevators Co. v. Russell,
 123 Tex. 128, 70 S.W.2d 397 (1934) ...................................................... 46, 47, 48

Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth.,
  96 S.W.3d 519 (Tex. App.—Austin 2002, pet. denied) .......................... 32, 36, 46

G&H Towing Co. v. Magee,
 347 S.W.3d 293 (Tex. 2011) ................................................................................58

Gen. Exch. Ins. Corp. v. Appling,
 144 S.W.2d 699 (Tex. Civ. App.—El Paso 1940, no writ) ........................... 58, 59

Hamilton v. Washington,
 No. 03-11-00594-CV, 2014 WL 7458988 (Tex. App.—Austin Dec. 23, 2014, no
 pet.) (mem. op.) ....................................................................................................56

Hammerly Oaks, Inc. v. Edwards,
 958 S.W.2d 387 (Tex. 1997) ......................................................................... 46, 47

Hexter Title & Abstract Co., Inc. v. Grievance Comm., Fifth Cong. Dist., State Bar
 of Tex.,
 142 Tex. 506, 179 S.W.2d 946 (Tex. 1944) .........................................................46

Holloway v. Skinner,
 898 S.W.2d 793 (Tex. 1995) ................................................................................46

Hous. Fed’n of Teachers, Local 2415 v. Hous. Indep. Sch. Dist.,
 730 S.W.2d 644 (Tex. 1987) ................................................................... 33, 34, 36

Hous. Indep. Sch. Dist. v. Rose,
 No. 01-13-00018-CV, 2013 WL 3354724 (Tex. App.—Houston [1st Dist.] July
 2, 2013, no pet.) (mem. op.) .......................................................................... 37, 38

In re McAllen Med. Ctr, Inc.,
  275 S.W.3d 458 (Tex. 2008) (orig. proceeding) ..................................................55
                                                         viii
In re Prudential Ins. Co. of Am.,
  148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ..................................................55

In re Vesta Ins. Grp., Inc.,
  192 S.W.3d 759 (Tex. 2006) ................................................................................46

Janek v. Harlingen Family Dentistry, P.C.,
  451 S.W.3d 97 (Tex. App.—Austin 2014, no pet.)....................................... 56, 57

Larry Koch, Inc. v. Tex. Natural Res. Conservation Comm’n,
  52 S.W.3d 833 (Tex. App.—Austin 2001, pet. denied) ................................ 32, 33

Mag-T, L.P. v. Travis Cent. Appraisal Dist.,
 161 S.W.3d 617 (Tex. App.—Austin 2005, pet. denied) ........................ 32, 34, 36

Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs,
 278 S.W.3d 17 (Tex. App.—Austin 2008, pet. dism’d) ............................... 41, 42

Mobil Oil Corp. v. Ellender,
 968 S.W.2d 917 (Tex. 1998) ................................................................................49

Onoray Davis Truck Co. v. Ford Motor Credit Co.,
 690 S.W.2d 40 (Tex. App.—Houston [14th Dist.] 1985, no writ).......................58

Perry v. Del Rio,
  66 S.W.3d 239 (Tex. 2001) ..................................................................................41

R.R. Comm’n of Tex. v. CenterPoint Energy Res. Corp.,
  No. 03-13-00533-CV, 2014 WL 4058727 (Tex. App.—Austin Aug. 14, 2014, no
  pet.) (mem. op.) ....................................................................................................42

Rea v. State,
  297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.)..................................... 41, 42

Smith v. Abbott,
 311 S.W.3d 62 (Tex. App.—Austin 2010, pet. denied) .......................................32

Speck v. First Evangelical Lutheran Church of Hous.,
  235 S.W.3d 811 (Tex. App.—Houston [1st Dist.] 2007, no pet.)........................58



                                                           ix
State v. Epperson,
  121 Tex. 80, 42 S.W.2d 228 (1931) .....................................................................54

Strayhorn v. Lexington Ins. Co.,
  128 S.W.3d 772 (Tex. App.—Austin 2004),
   aff’d, 209 S.W.3d 83 (Tex. 2006) ................................................................. 36, 38

Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
  84 S.W.3d 212 (Tex. 2002) ............................................................... 22, 23, 25, 41

Tara Partners, Ltd. v. City of S. Hous.,
  282 S.W.3d 564 (Tex.App.---Houston [14th Dist.] 2009, pet. denied) ........ 28, 29

Tate v. King,
  No. 03-96-00532-CV, 1997 WL 217197, (Tex. App.—Austin May 1, 1997, no
  writ) (mem. op.) ....................................................................................................59

Tex. Dep’t. of Licensing & Regulation v. Roosters MGC, LLC,
  No. 03-09-00253-CV, 2010 WL 2354064 (Tex. App.—Austin June 10, 2010, no
  pet.) (mem. op.) ............................................................................................. 25, 31

Tex. Highway Comm’n v. Tex. Ass’n of Steel Imps., Inc.,
  372 S.W.2d 525 (Tex. 1963) ................................................................................54

Tex. Mun. Power Agency v. Pub. Util. Comm’n,
  100 S.W.3d 510 (Tex. App.—Austin 2003, pet. denied) .....................................31

Tex. Mut. Ins. Co. v. Tex. Dep’t. of Ins., Div. of Workers’ Comp.,
  214 S.W.3d 613 (Tex. App.—Austin 2006, no pet.)................................. 2, 25, 26

Tex. Student Hous. Auth. v. Brazos Cnty. Appraisal Dist.,
  No. 13-0593, 2015 WL 1870013 (Tex. Apr. 24, 2015) ................................ 24, 31

Thomas v. Long,
  207 S.W.3d 334 (Tex. 2006) ................................................................................23

Union Bankers Ins. Co. v. Shelton,
 889 S.W.2d 278 (Tex. 1994)) ...............................................................................25

Walker v. Packer,
 827 S.W.2d 833 (Tex. 1992) ................................................................................55
                                                           x
Westheimer Indep. Sch. Dist. v. Brockette,
 567 S.W.2d 780 (Tex. 1978) ......................................................................... 24, 31


STATUTES AND RULES

22 TEX. ADMIN. CODE § 573.80(2) .......................................................................... ix

22 TEX. ADMIN. CODE § 573.10(a) ..........................................................................35

22 TEX. ADMIN. CODE § 573.72 ............................................................................... ix

22 TEX. ADMIN. CODE § 573.80(13) ........................................................................35

TEX. CONST. Art. V, § 8 ...........................................................................................22

TEX. GOV’T CODE § 2001.038........................................................................... 14, 43

TEX. GOV’T CODE §§ 24.007-.008 ...........................................................................22

TEX. HEALTH & SAFETY CODE § 483 .......................................................................15

TEX. HEALTH & SAFETY CODE § 821 .......................................................................15

TEX. HEALTH & SAFETY CODE § 822 .......................................................................15

TEX. HEALTH & SAFETY CODE § 823 .......................................................................15

TEX. HEALTH & SAFETY CODE § 826 .......................................................................15

TEX. HEALTH & SAFETY CODE § 828 .......................................................................15

TEX. OCC. CODE § 801.001(4) ...................................................................................9

TEX. OCC. CODE § 801.001-.557 ..............................................................................27

TEX. OCC. CODE § 801.004 ................................................................................ ix, 19

TEX. OCC. CODE § 801.004(1) ................................. xi, 28, 30, 30, 45, 46, 48, 50, 59

TEX. OCC. CODE § 801.151(b) .................................................................................27
                                                         xi
TEX. OCC. CODE § 801.351 ......................................................................................11

TEX. R. CIV. P. 301 ...................................................................................................58

U.S. CONTROLLED SUBSTANCES ACT, 21 U.S.C. § 801, et seq. ...............................15


OTHER AUTHORITIES

38 TEX. REG. 5490, 5491 (2013) (to be codified as an amendment to 22 TEX.
  ADMIN CODE Rule § 573.80) ................................................................................11

CITY OF SAN ANTONIO, TEXAS, CODE OF ORDINANCES, ch. 5 ..................................15

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY at 208 (1988)...........................48




                                                          xii
                              STATEMENT OF THE CASE


Nature of the Case:         This is a challenge to the Texas Board of Veterinary
                            Medical Examiners’s ultra vires prosecution of Dr. Ellen
                            Jefferson, an animal-shelter veterinarian whose care and
                            treatment of shelter animals falls squarely outside the
                            agency’s regulatory authority as expressly defined by the
                            Texas Legislature.

Trial Court:                The Honorable Gisela D. Triana, sitting in the 250th
                            Judicial District Court of Travis County, Texas

Trial Court Disposition: Pursuant to the agreement of the parties, the trial court
                         held a combined plea-to-the-jurisdiction hearing and trial
                         on the merits on August 4, 2014. 2.RR.7-226. Following
                         the trial, the trial court issued a letter ruling, 1.CR.852-
                         54, followed by a judgment, 1.CR.855-57 (Ex. A). The
                         trial court also issued findings of fact and conclusions of
                         law. 2.CR.36-38 (Ex. B).1

                            The trial court’s judgment:
                            •      grants Defendants’ plea to the jurisdiction “in part
                                   and dismisses Dr. Jefferson’s claims under the
                                   Uniform Declaratory Judgment Act without
                                   prejudice” on the ground that “Dr. Jefferson must
                                   exhaust her administrative remedies,” 1.CR.855;
                            •      declares that Texas Administrative Code §§ 573.72
                                   and 573.80(2) are “contrary to Section 801.004(1)
                                   of the Veterinary Practice Act and therefore
                                   invalid,” 1.CR.856-57; see also TEX. OCC. CODE §
                                   801.004 (Ex. C);
                            •      issues unrequested declaratory relief apparently
                                   related to the TBVME’s authority to enforce
                                   “other laws,” 1.CR.856;


1
  The trial court clerk issued two volumes of the Clerk’s Record but labeled both “Volume 1 of
1.” This brief will refer to the volume filed on December 17, 2014 as Volume 1, and the volume
filed on January 13, 2015 as Volume 2. Citations to the Clerk’s Record herein will be in the
form [Volume].CR.[Page]. Likewise, citations to the Reporter’s Record will be in the form
[Volume].RR.[Page] or, if the citation is to a page of an exhibit, [Volume].RR.[Exhibit:Page].
                                                xiii
•    remands the case “to the TBVME for further
     actions consistent with this order,” 1.CR.857; and
•    denies “[a]ll relief not expressly granted,”
     1.CR.857.

Defendants and Dr. Jefferson timely filed notices of
appeal. 1.CR.866-67 (Defendants’ Notice); 1.CR.871-72
(Dr. Jefferson’s Notice).




             xiv
                  STATEMENT REGARDING ORAL ARGUMENT

      Because those parts of the trial court’s judgment in favor of Defendants

directly contravene binding precedent from this Court and the Texas Supreme

Court, this Court may deem it unnecessary to hear oral argument before reversing

the trial court’s error.   Nonetheless, the Court may consider oral argument

beneficial given the number of issues involved in this appeal and the

unprecedented nature of the trial court’s jurisdictional holding. Accordingly, to the

extent the Court deems oral argument beneficial, Dr. Jefferson respectfully

requests the opportunity to participate.




                                           xv
                               ISSUES PRESENTED

1.    Did the trial court err by dismissing Dr. Jefferson’s Uniform Declaratory

Judgment Act claims?

      a.    Did the trial court err by dismissing Dr. Jefferson’s UDJA claims for

failure to exhaust administrative remedies given that the Legislature did not confer

upon the TBVME exclusive jurisdiction over the regulation of an animal’s care

and treatment by its owner, owner’s employee, or designated caretaker?

      b.    Even if the Legislature had conferred upon the TBVME exclusive

jurisdiction over the regulation of an animal’s care and treatment by its owner,

owner’s employee, or designated caretaker, does one of the many exceptions to the

exhaustion-of-administrative-remedies doctrine apply?

      c.    Are other offered grounds for dismissal also without merit?

2.    Is Defendants’ prosecution of Dr. Jefferson ultra vires and unlawful given

that (1) the Texas Legislature explicitly exempted from the TBVME’s authority the

regulation of an animal’s treatment or care “in any manner” by its owner, the

owner’s employee, or a designated caretaker, and (2) Dr. Jefferson’s treatment and

care of San Antonio Pets Alive’s animals is—as a matter of law—treatment and

care by the animal’s owner, the owner’s employee, or a designated caretaker?




                                        xvi
3.    Did the trial court err by denying or dismissing Dr. Jefferson’s request for

mandamus relief from Oria’s ultra vires prosecution of Dr. Jefferson for her care

and treatment of San Antonio Pets Alive’s animals?

4.    Did the trial court err by issuing unrequested, ambiguous, and legally

incorrect declaratory relief regarding the TBVME’s authority to enforce “other

laws” against Dr. Jefferson in the context of the “owner exemption”?




                                       xvii
                                 INTRODUCTION

      This is a case about a state agency’s failure to abide by the Legislature’s

clear limitation on its authority and the ultra vires prosecution of a nationally

renowned veterinarian who has dedicated her life to fundamentally altering the

direction of animal sheltering in America so as to save—rather than kill—the vast

majority of impounded dogs and cats. Mindful of the values Texans place on

private-property rights, the Texas Legislature has for decades expressly prohibited

the Texas Board of Veterinary Medical Examiners—a state agency—from

regulating the treatment or care of animals “in any manner” by the animals’

owners, owners’ employees, or designated caretakers pursuant to the so-called

“owner exemption” to the Veterinary Licensing Act. Because it is undisputed that

the animals cared for by Dr. Jefferson at issue in this case are owned by the non-

profit animal shelter San Antonio Pets Alive (“SAPA”), and that Dr. Jefferson is

the lead veterinarian and principal executive officer of SAPA, the agency’s attempt

to prosecute Dr. Jefferson contravenes Texas law and is per se ultra vires.

      Even though the trial court agreed that the TBVME has no jurisdiction over

animal-shelter veterinarians whose conduct falls under the “owner exemption,” the

agency successfully convinced the trial court that—contrary to black-letter Texas

law—the court itself had no jurisdiction to stop the agency’s unlawful acts. That

holding is as wrong as the agency’s distorted view of the law: when a state agency


                                         1
has no jurisdiction to regulate a policy arena, it necessarily does not have exclusive

jurisdiction to first decide disputes within that arena. In other words, when the

Legislature says “no,” it means “no”—regardless of how badly a state agency

wants to creep far beyond the limits of its statutory authority. See Tex. Mut. Ins.

Co. v. Tex. Dep’t. of Ins., Div. of Workers’ Comp., 214 S.W.3d 613, 620 (Tex.

App.—Austin 2006, not pet.) (“The question of whether an agency has . . .

jurisdiction is resolved by determining legislative intent—not agency intent.”

(emphasis original)).

      The TBVME’s insistent failure to abide by the limits of its authority in this

case is particularly odd in light of its public acknowledgment of its lack of

authority in this very context just three short years ago.                In 2012—

contemporaneously with Dr. Jefferson’s animal-shelter work at issue—the

TBVME issued public guidance to animal-shelter veterinarians stating that the

Veterinary Licensing Act’s “owner exemption” prohibits the TBVME from

regulating an animal shelter’s treatment and care of animals once the animal

shelters become the owners of the animals in their custody. Specifically, in its

2012 “Board Notes” publication, in a section authored by its Executive Director

and Defendant Nicole Oria, the TBVME declared:

      After the [“stray hold”] time period for holding the animal has
      elapsed, usually three days and set by local ordinance, then the shelter
      may claim the animal is abandoned and the shelter is the owner.
      Under Texas law, [the shelter] or a caretaker designated by the
      [shelter] can perform acts of veterinary medicine on the animal . . .
                                          2
      because the [shelters] and caretakers are exempt from the Veterinary
      Licensing Act.

3.RR.PX18:EJ000638 (emphasis added) (Ex. D). The TBVME was right in 2012:

an animal-shelter veterinarian’s treatment of animals owned by the shelter is

“exempt from the Veterinary Licensing Act” under the “owner exemption.” Id.

Accordingly, Dr. Jefferson’s treatment of animals owned by San Antonio Pets

Alive is “exempt from the Veterinary Licensing Act”—regardless of how badly the

TBVME now wishes to prosecute her. See id.

      Based on the uncontroverted facts, the plain language of the Veterinary

Licensing Act, and settled Texas law, Dr. Jefferson therefore respectfully requests

that this Court reverse those parts of the judgment rendered in favor of Defendants

(including the trial court’s dismissal of Dr. Jefferson’s claims for “failure to

exhaust”), render judgment that the agency’s illegal prosecution of Dr. Jefferson is

ultra vires and unlawful, and issue declaratory, injunctive, and mandamus relief

prohibiting the agency’s further prosecution of Dr. Jefferson with respect to her

treatment and care of animals owned by San Antonio Pets Alive.




                                         3
                                     STATEMENT OF FACTS

          The Texas Board of Veterinary Medical Examiners and its Executive

Director Nicole Oria forced this lawsuit by embarking on an illegal campaign to

prosecute Austin community leader Dr. Ellen Jefferson for doing precisely what

the agency said was fully legal at the time of Dr. Jefferson’s work in question:

providing treatment and care to impounded animals owned by animal shelters

without regard to the inapplicable constraints of the Veterinary Licensing Act. The

germane facts and circumstances leading up to the agency’s unlawful prosecution

of Dr. Jefferson’s “No Kill” sheltering efforts began years earlier, when Dr.

Jefferson put aside her private-practice veterinary career in order to make it her

life’s mission to save shelter pets.

Dr. Jefferson Devotes Her Life to Helping Shelter Pets.

          Dr. Ellen Jefferson—the plaintiff in this case and the shelter veterinarian

subject to the agency’s overreach—has been licensed to practice veterinary

medicine in Texas since 1998. 2.RR.124. After beginning her practice in Texas,

she founded a non-profit animal-welfare organization in Austin, Texas, called

Emancipet, to provide free and low-cost spay-neuter services to pet owners in

need. 2.RR.126-27.2 As a veterinarian, Dr. Jefferson has worked in the private-

practice “fee for service” clinic context, for non-profits who deliver services to



2
    See also http://emancipet.org/ (last visited May 21, 2015).
                                                    4
client-owners of pets, and also for both public and private animal shelters that do

not serve client-owners of pets but rather provide care to unowned, abandoned, or

lost shelter pets. 2.RR.126-29, 133-34, 137, 145. In addition to Emancipet and her

current employment, for example, she has worked on behalf of animals at Austin’s

municipal animal shelter (then known as Town Lake Animal Center), the Austin

Humane Society, the Williamson County Humane Society, Kyle Paws, and San

Antonio Animal Care Services. 2.RR.145.

Dr. Jefferson Resets Her Sights: To Make Cities “No Kill” for Shelter Pets.

          In 2008, Dr. Jefferson became the executive director of Austin Pets Alive,

2.RR.124, an organization aimed at making Austin and Central Texas “No Kill”

for shelter pets—meaning they would save all healthy and treatable impounded

pets.3 Dr. Jefferson’s remarkable success in shelter lifesaving at Austin Pets Alive

quickly became a national story, attracting the attention of the then-Director of San

Antonio’s Office of Innovation and Reform—Joe Angelo—who had been tasked

with finding a way to significantly reduce euthanasia at San Antonio’s municipal

shelter. 2.RR.70.

          The performance of San Antonio’s municipal shelter, according to city

officials, was up to that time “wholly inadequate.” 2.RR.69. The city shelter

typically impounded about 30,000 animals per year, killing roughly 70 percent of




3
    See also http://www.austinpetsalive.org/ (last visited May 21, 2015).
                                                    5
them. 2.RR.69. Angelo reasoned that in order to turn around San Antonio’s

facility, he had to look for the best of the best, and he found that in Dr. Jefferson of

Austin Pets Alive. 2.RR.70. In the words of Angelo, “[w]e looked around at some

of the best practices in the country,” and Dr. Jefferson’s work “was leagues above

everybody else’s.” 2.RR.70.

San Antonio Seeks Out Dr. Jefferson’s “Pets Alive” Sheltering Model, and
San Antonio Pets Alive Is Formed.

      Impressed by Dr. Jefferson’s lifesaving success in Austin, the City of San

Antonio began an effort to recruit her to do the same in the Alamo City. As part of

their due diligence, Angelo and San Antonio’s Deputy City Manager toured Austin

Pets Alive—including the organization’s medical facilities. 2.RR.71-72. Angelo

observed that, like the City’s own provision of medical services, Austin Pets Alive

operated akin to a “MASH” unit where pets were given the care they needed, but

not on the level of a “Boston General” style private facility. 2.RR.72-75. And that

is what the City of San Antonio expected; city representatives understood that to

save lives where intake is unlimited but resources are not, veterinary care must be

streamlined for efficacy and efficiency. 2.RR.75-76. As Executive Director of

San Antonio Animal Care Services Kathy Davis testified:

      It’s a huge and overwhelming job to handle [the number of pets we
      handle] on a daily basis, and we have to triage them. We have to do a
      MASH-style service in order to be able to handle the huge volume
      that comes in on a daily basis.


                                           6
2.RR.81. Davis later added that the City simply does not have the resources to pay

for private-practice-level medical care at the shelter. 2.RR.92.

      Satisfied with their due diligence on Dr. Jefferson and Austin Pets Alive,

Angelo and the City of San Antonio sought and reached an agreement with Dr.

Jefferson to bring the Austin Pets Alive model to San Antonio through a new non-

profit organization called San Antonio Pets Alive (“SAPA”).        2.RR.77.   Dr.

Jefferson formed SAPA, and became its Executive Director in 2012. 2.RR.124,

151; 3.RR.PX5. The mission of San Antonio Pets Alive is undisputed: “[T]o save

every adoptable dog and cat in danger of being killed at the City of San Antonio

shelter.” 2.RR.141; 3.RR.PX44; see also 2.RR.256 (“Q. So what is the purpose,

then, when you take ownership of these dogs – when SAPA takes ownership of

these dogs? A. To save their lives and get them adopted.”).

      San Antonio Pets Alive has been exceedingly successful in saving lives.

SAPA saves about 8,000 dogs and cats per year from San Antonio Animal

Services. 2.RR.161. They do so with approximately 50 employees and between

700 and 800 volunteers. 2.RR.162. They have physical shelters that house around

300 animals, with several hundred more living in temporary foster homes until

they are able to be adopted. 2.RR.157.

      The City of San Antonio agreed to sign up SAPA as a shelter placement

partner and, consistent with the terms of its agreements with other shelter


                                          7
placement partners, agreed to pay SAPA a flat fee for each animal rescued from

the shelter. 2.RR.77; 3.RR.PX5. Pleased with the partnership, the City of San

Antonio has repeatedly extended its agreement with San Antonio Pets Alive to

save even more impounded pets. 3.RR.PX5,6,7. To maximize the lifesaving

intent of the partnership, San Antonio Pets Alive only rescues pets from the shelter

that the shelter has slated for euthanasia. 2.RR.85. In other words, Dr. Jefferson’s

organization is literally the last chance a shelter pet has in San Antonio to make it

out alive. San Antonio’s ultimate goal is to become, like Austin, a “No Kill”

community. 2.RR.70-71.

      Dr. Jefferson’s role in San Antonio Pets Alive is all-encompassing. At all

times relevant to the events in this case, Dr. Jefferson was SAPA’s Executive

Director, 2.RR.124, lead veterinarian, 2.RR.171, and “highest ranking corporate

officer, vested with overall responsibility for SAPA’s day-to-day affairs, including

the care provided to its animals,” 3.RR.PX43:EJ001539. She also serves on its

Board of Directors. Id.

Both Dr. Jefferson and the Texas Board of Veterinary Medical Examiners
Understood at the Time of Her Challenged Conduct That the Agency Has No
Jurisdiction Over Veterinary Care Provided by Shelters to Animals the
Shelters Own.

      Critical to the determination of this appeal is the understanding of both Dr.

Jefferson and the TBVME that it is and has always been perfectly lawful for an

animal shelter that owns the pets in its custody to provide treatment and care for

                                         8
those pets in any manner without the need to follow the various inapplicable

requirements of the Veterinary Licensing Act or the rules promulgated thereunder;

the agency simply has no authority or jurisdiction to regulate such care. Again, as

Oria and the TBVME wrote in its Fall 2012 Board Notes publication:

       After the [“stray hold”] time period for holding the animal has
       elapsed, usually three days and set by local ordinance, then the shelter
       may claim the animal is abandoned and the shelter is the owner.
       Under Texas law, [the shelter] or a caretaker designated by the
       [shelter] can perform acts of veterinary medicine on the animal . . .
       without concern for establishing a veterinarian-client-patient
       relationship, because the [shelters] and caretakers are exempt from
       the Veterinary Licensing Act.

3.RR.PX18:EJ000638 (emphasis added). The evidence was uncontroverted that it

was “common knowledge” in the animal-sheltering industry that—consistent with

the TBVME’s publication—animal shelters who own the animals in their care are

exempt from the Veterinary Licensing Act by what is often referred to as the

“owner exemption.”        2.RR.144-45.4      Dr. Jefferson too shared the TBVME’s

understanding that with respect to an animal owned by an animal shelter, the

shelter and its caretakers “are exempt from the Veterinary Licensing Act.”

3.RR.PX18:EJ000638; 2.RR.144-45. In fact, Dr. Jefferson testified that she was

reassured by the agency’s Fall 2012 Board Notes because they confirmed her prior




4
  See TEX. OCC. CODE § 801.001(4) (excepting from the Veterinary Licensing Act and TBVME’s
jurisdiction “the treatment or care of an animal in any manner by the owner of the animal, an
employee of the owner, or a designated caretaker of the animal, unless the ownership,
employment, or designation is established with the intent to violate this chapter.”).
                                                9
understanding and belief that San Antonio Pets Alive operated in full and complete

compliance with Texas law. 2.RR.148, 188.

At Some Point, the Agency Decides That Stopping “No Kill” Shelters Is More
Important Than Abiding by the Limits of Its Statutory Authority.

       Whenever someone revolutionizes an industry, those stuck in the past lash

out; the animal-sheltering world is no exception. While nearly all national animal-

welfare organizations (including Best Friends Animal Society, 5 Alley Cat Allies,6

the No Kill Advocacy Center,7 and the ASPCA8) now support efforts to

dramatically decrease animal-shelter killing through what has been called the “No

Kill” movement, there are holdouts who remain mired in the traditional save-a-

few-and-kill-the-rest method of animal control. The controversial group PETA,

for example, favors traditional kill shelters over those aiming to save the lives of

all healthy and treatable pets. 9      At some point, the TBVME decided to take

PETA’s pro-killing side of the animal-sheltering world, derisively writing in the

May 24, 2013 issue of the Texas Register that while the “No Kill” movement may

be a “favorite cause” of animal lovers, the real purpose of an animal shelter is to

kill animals—not save them. See 38 TEX. REG. 5490, 5491 (2013) (to be codified


5
  See http://bestfriends.org/Our-No-Kill-Mission/ (last visited July 5, 2015).
6
  See http://www.alleycat.org/catfatalities (last visited July 5, 2015).
7
  See http://www.nokilladvocacycenter.org/ (last visited July 5, 2015).
8
   See http://www.aspca.org/about-us/aspca-policy-and-position-statements/no-kill-community-
coalitions (last visited July 5, 2015).
9
  See http://www.washingtonpost.com/local/virginia-politics/animal-bill-could-put-peta-out-of-
the-shelter-business/2015/02/23/2f4f05b6-bb6a-11e4-b274-e5209a3bc9a9_story.html (last
visited June 17, 2015).
                                                  10
as an amendment to 22 TEX. ADMIN CODE Rule § 573.80) (“While no-kill animal

shelters have become a favorite cause of animal rights proponents in recent years,

the primary public purpose of animal shelters is to remove sick, injured, unwanted

and abandoned animals from contact with the public . . . .”). So when the agency

saw an opening to prosecute Dr. Jefferson—the highest-profile “No Kill” advocate

in Texas and arguably the entire nation—it jumped at the chance.

The TBVME Begins to Prosecute Dr. Jefferson for Her Treatment and Care
of Animals Owned by San Antonio Pets Alive.

       On December 27, 2013, the agency commenced its war on “No Kill”

sheltering, choosing to begin prosecution efforts against the movement’s leader for

alleged conduct that the agency had proclaimed perfectly legal just one year

earlier. Compare 1.CR.53-63 (alleging SAPA’s veterinary care of its own animals

violated the Veterinary Licensing Act because it was provided without first

establishing a veterinarian-client-patient relationship), with 3.RR.PX18:EJ000638

(acknowledging that animal shelters need not establish a veterinarian-client-patient

relationship with animals they own because they are exempt from the Veterinary

Licensing Act).10 In the agency’s “Allegations” they presented to Dr. Jefferson

(and attached to their plea to the jurisdiction in this case), the TBVME conceded


10
   The “veterinarian-client-patient-relationship” requirement is found in § 801.351 of the Texas
Occupations Code. It requires that, prior to treating an animal, a veterinarian establish a
relationship with both the animal and the animal’s owner—a requirement that is effectively
impossible to meet were it to apply in the animal-shelter context because the animals either do
not have owners, their owners are unknown or unreachable, or the shelter itself has already
become the owner. See TEX. OCC. CODE § 801.351.
                                                11
that (1) Dr. Jefferson is “employed by San Antonio Pets Alive!, an animal rescue

organization,” and (2) the complaint made against Dr. Jefferson related to a dog

“owned by San Antonio Pets Alive in San Antonio, Texas.” 1.CR.117. Because

those concessions squarely placed Dr. Jefferson’s treatment of the dog outside of

the agency’s jurisdiction pursuant to the “owner exemption” of the Veterinary

Licensing Act as recognized in the agency’s own publication, Dr. Jefferson

protested the agency’s prosecution of her as illegal and without authority.

2.RR.190. Defendant Executive Director Nicole Oria’s response? “Go [complain]

to the Legislature.” 2.RR.190.

Dr. Jefferson Is Forced to Sue.

      Because Oria and her agency refused to follow the rule of law that they had

publicly acknowledged just a year earlier, Dr. Jefferson was forced to file suit to

stop their illegal prosecution. 1.CR.4-21. In her petition, Dr. Jefferson explained

the success that both Austin Pets Alive and San Antonio Pets Alive have had in

saving the lives of shelter pets, helping to bring Austin to an over 90% live-release

rate and San Antonio to an almost 80% live-release rate. 1.CR.10. She also

explained that by explicitly exempting medical care by animals’ owners from the

Veterinary Licensing Act, the Legislature prohibited the agency from regulating

such care by shelter-owners like San Antonio Pets Alive.                1.CR.14-17.

Accordingly, Dr. Jefferson asked the trial court to declare Oria and the agency’s


                                         12
conduct unlawful and ultra vires, and also sought temporary and permanent

injunctive relief to stop the agency’s ultra vires prosecution.

      Oria and the TBVME responded by filing a plea to the jurisdiction asserting

that (1) the agency has authority to investigate Dr. Jefferson and bring an action

against her in the State Office of Administrative Hearings (SOAH); and (2) Dr.

Jefferson’s claims are not ripe because—according to the TBVME—while it has

already concluded that Dr. Jefferson violated the Veterinary Licensing Act and the

agency’s rules promulgated thereunder, 1.CR.47, 133-35, Dr. Jefferson had not yet

been injured by the agency because no final decision had been reached by the

agency after a SOAH proceeding. 1.CR.69-71. The TBVME attached to its plea

to the jurisdiction its “Allegations” against Dr. Jefferson, in which the agency

conceded that (1) Dr. Jefferson was employed by San Antonio Pets Alive, and (2)

San Antonio Pets Alive owned the animal whose care was questioned. 1.CR.117.

      Before the trial court considered the agency’s plea to the jurisdiction, the

TBVME began the process of bringing even more disciplinary proceedings against

Dr. Jefferson. See 1.CR.204-07. These too involved animals owned by San

Antonio Pets Alive, 2.RR.41, and were instigated by the out-of-state no-kill

opponent PETA, 1.CR.204-07.          Tellingly, the City of San Antonio Police

Department timely investigated the allegations and concluded that they were

wholly unfounded. 3.RR.PX62,65. But that did not deter the TBVME.


                                          13
      As a result, Dr. Jefferson amended her original petition to add additional

claims including a request for declaratory relief under Texas Government Code §

2001.038. 1.CR.216. Dr. Jefferson explained that the agency’s various rules that

attempted to overrule the Texas Legislature’s limit on the TBVME’s authority

were illegal and invalid. 1.CR.216-22. Dr. Jefferson also sought mandamus relief

to stop Oria’s illegal and ultra vires acts. 1.CR.228-29.

The Trial Court Agrees That the TBVME Has No Jurisdiction to Regulate
Shelter Veterinarians’ Treatment of Animals Owned by Shelters, But Holds
That the Court Itself Has No Jurisdiction to Decide Dr. Jefferson’s UDJA
Claims.

      By agreement of the parties, the trial court held a combined hearing on the

agency’s jurisdictional plea and trial on the merits on August 4, 2014. The agency

stipulated that San Antonio Pets Alive was the owner of the animals whose care it

questioned. 2.RR.41-42. Dr. Jefferson called several witnesses, including herself,

and the agency called none. 2.RR.68-200. Accordingly, the trial-court testimony

and evidence was uncontroverted that:

   • San Antonio Pets Alive owned the animals in its care, 2.RR.41-42;

   • Dr. Jefferson’s care and treatment of the animals was fully consistent with
     the care anticipated by the City of San Antonio in reaching out to Dr.
     Jefferson and agreeing to contract terms with San Antonio Pets Alive,
     2.RR.72-76, 89;

   • SAPA saves approximately 8,000 animals per year from the City’s
     municipal animal shelter, 2.RR.161;



                                         14
     • Every animal at issue would have been euthanized by the City of San
       Antonio but for Dr. Jefferson and San Antonio Pets Alive’s efforts to save
       them, 2.RR.85;

     • Myriad other governmental entities (local, state, and federal) have
       jurisdiction over Dr. Jefferson’s care of SAPA’s animals, including the City
       of San Antonio, which found the allegations against her to not be credible,
       2.RR.134-39, 83, 85, 88;11

     • Dr. Jefferson is both the Executive Director and lead veterinarian of San
       Antonio Pets Alive and is thus responsible for making corporate decisions
       for the non-profit and for the caretaking of the animals owned by SAPA,
       2.RR.124; 3.RR.PX43:EJ0001539; and

     • The sole intent of Dr. Jefferson and the City of San Antonio in setting up
       San Antonio Pets Alive and transferring animals to SAPA from the City is to
       save animals’ lives, 2.RR.141; 3.RR.PX44; 2.RR.70.

        On September 5, 2014, the trial court issued a letter ruling invalidating

contested agency rules that failed to recognize the “owner exemption,” but also

holding that the court itself was powerless to stop the TBVME’s prosecution of Dr.

Jefferson because she “must exhaust her administrative remedies . . . before the

Court may review individual disputes” between Dr. Jefferson and the TBVME.

1.CR.852-53. Two months later, the court issued a final judgment largely in line



11
   The various governmental agencies that have jurisdiction over animal shelters’ (like Dr.
Jefferson and San Antonio Pets Alive’s) care of animals include the United States Drug
Enforcement Agency, see U.S. CONTROLLED SUBSTANCES ACT, 21 U.S.C. § 801, et seq.; the
Texas Department of Public Safety, see TEX. HEALTH & SAFETY CODE § 483; the Texas Board of
Health, see TEX. HEALTH & SAFETY CODE § 823; the Texas Department of State Health Services,
see generally, TEX. HEALTH & SAFETY CODE §§ 822, 823, 826, §828; the county or municipal
Animal Advisory Commission, see TEX. HEALTH & SAFETY CODE § 823; the governmental
entity (if any) from whom the shelter is saving animals, see, e.g., TEX. HEALTH & SAFETY CODE
§§ 821, 823; CITY OF SAN ANTONIO, TEXAS, CODE OF ORDINANCES, ch. 5; and law-enforcement
authorities that enforce animal-cruelty laws, see, e.g., CITY OF SAN ANTONIO, TEXAS, CODE OF
ORDINANCES, ch. 5.
                                                15
with the letter ruling. 1.CR.855-57. Both sides timely filed notices of appeal.

1.CR.866-87; 1.CR.871-72.

Meanwhile, the Agency’s Ultra Vires Prosecution Continues.

      Because the trial court concluded that it had no jurisdiction to determine Dr.

Jefferson’s Uniform Declaratory Judgment Act challenge to the TBVME’s

authority to prosecute her (as opposed to its contested rules, two of which the court

held invalid), the agency has continued its prosecution by pursuing its claims

against Dr. Jefferson before a SOAH judge. After a hearing, the administrative

law judge determined that Dr. Jefferson’s treatment and care of San Antonio Pets

Alive’s animals is, in fact, exempt from the TBVME’s jurisdiction under the facts

of the case due to the “owner exemption” because: (1) SAPA owned the animals at

issue; (2) SAPA provided its care and treatment of its animals through Dr.

Jefferson, its Executive Director and lead veterinarian (and Dr. Jefferson was a

designated caretaker of the animals); and (3) Dr. Jefferson did not intend to violate

the Veterinary Licensing Act. See SOAH Order (Ex. E). However, the SOAH

judge also concluded—based on language within the trial court’s pre-judgment

letter ruling—that the TBVME has authority to continue prosecutorial efforts

against Dr. Jefferson for alleged violations of laws other than the Veterinary

Licensing Act. Id.; see also infra Part IV. As a result, the TBVME’s unlawful




                                         16
prosecution against Dr. Jefferson continues, additional proceedings are scheduled,

and Dr. Jefferson continues to be harmed. 12

The Legislature Is Not Happy with the TBVME’s Shelter Prosecutions.

       In hearings on legislation related to this case, legislators strongly and

repeatedly criticized the agency’s ultra vires prosecution of animal-shelter

veterinarians. Senator Charles Perry of Lubbock described Oria’s testimony as

evidencing the agency’s “hypocrisy” and “inconsistency,” and criticized the

TBVME’s position as being “so prescriptive that people are paralyzed to do their

job.” See Texas Senate Committee on Agriculture, Water & Rural Affairs hearing

on April 27, 2015. 13 Senator Perry also explained that the agency’s prosecution of

shelter veterinarians fails to recognize the big picture:

       You have individual vets that are doing a yeoman’s job most of the
       time on a voluntary basis. We have individual shelters that honestly,
       if it wasn’t for them, there wouldn’t be an animal to discuss 99
       percent of the time. . . . [You’re] kind of beating up an area that if it
       wasn’t for the area, there would be no opportunity, if you will, to
       salvage the animals that need to be salvaged.

Id.

       Senator Kirk Watson of Austin levied additional criticism upon the

TBVME’s conduct, stating that he found Oria’s testimony regarding her regulation

and treatment of animal shelters “disturbing.” Id. He stated to Oria:


12
   It is not known whether the TBVME intends to abide by the SOAH judge’s rulings in favor of
Dr. Jefferson.
13
    Viewable at http://tlcsenate.granicus.com/MediaPlayer.php?view_id=30&clip_id=9952 (last
visited June 18, 2015).
                                              17
       I will tell you that your testimony, I think, highlights one of the
       problems that we have at this state agency. . . . Let me just say this,
       and I mean no disrespect. Your testimony and your approach causes
       me to believe you may be in the wrong job. And your inability to
       clearly define how better to address an issue where you have
       communities that want “No Kill” policies, but have limited resources,
       . . . and the way you’ve approached it and the way you’ve approached
       your testimony today causes me grave concern. . . . You know the
       concern and I’m not seeing any effort to try to help fix the concern
       other than to say ‘we want to stay out of court.’”

Id.

       In another Senate hearing, Senator John Whitmire of Houston expressed his

concern regarding the TBVME as well. See Senate Committee on Criminal Justice

hearing on May 5, 2015.14 There, Senator Whitmire stated:

       I can’t begin to tell you through my years, and even recently, . . . I get
       reports in my district of the board being very dictatorial [and] not
       sensitive to shelters trying to provide services. . . . [T]hey don’t treat
       people, the public, the shelters, and even veterinarians with respect
       and sensitivities. . . . They need to realize they work for the public.

Id. Speaking directly to Oria, Senator Whitmire added: “From talking to my

colleagues, you’re building a pretty strong consensus in the Legislature that your

board runs over people on a routine basis, and that’s just uncalled for. . . . They are

here to serve, and not dictate.” Id.15




14
   Viewable at http://tlcsenate.granicus.com/MediaPlayer.php?clip_id=10049 (last visited June
18, 2015).
15
   While Oria lobbied the Legislature to pass a bill expressly excluding animal-shelter
veterinarians from Veterinary Licensing Act’s list of exemptions, Dr. Jefferson encouraged the
Legislature to confirm the owner exemption. No legislation related to the issue passed during the
2015 legislative session.
                                              18
      Undeterred by the legislators’ heated criticism, Oria and the TBVME’s ultra

vires prosecution of Dr. Jefferson continues—necessitating this appeal.

                          SUMMARY OF THE ARGUMENT

      At its core, this is a case about a state agency thumbing its nose at the Texas

Legislature’s specific, clear, and unambiguous curtailment of its authority. The

agency no doubt wishes the law were different, but as Texas law has stated for

more than 100 years, the Texas Board of Veterinary Medical Examiners has no

authority to regulate the treatment and care of an animal by its owner or owner’s

designee. See TEX. OCC. CODE § 801.004. That means—as the TBVME itself

recognized in 2012—that animal shelters like San Antonio Pets Alive may provide

treatment and care to animals owned by the shelters without regard to the agency’s

inapplicable rules and regulations because shelters are “exempt” from the

TBVME’s jurisdiction as a matter of law. Because Dr. Jefferson’s treatment and

care of animals owned by her non-profit animal-rescue shelter San Antonio Pets

Alive fall squarely within that exemption to the TBVME’s authority, the agency’s

attempt to prosecute her for that treatment is per se ultra vires.

      After a combined plea hearing and trial on the merits, the trial court agreed

that the TBVME has no authority over animal-shelter veterinarians falling under

the “owner exemption,” but held—contrary to black-letter Texas law—that the

court itself had no jurisdiction to stop the agency from prosecuting Dr. Jefferson


                                          19
because Dr. Jefferson had not first exhausted administrative remedies. In other

words, the trial court held that Dr. Jefferson must first fully submit herself to the

TBVME’s ultra vires prosecution of her before she can contest the authority of the

TBVME to prosecute her in the first place. That holding is insulting to the rule of

law (and, especially, the inherent limitations of governmental authority) and

demonstrably incorrect under the Texas Constitution and settled Texas law, which

make perfectly clear that Texas district courts have inherent constitutional

jurisdiction over disputes in Texas unless the pleadings or evidence affirmatively

negate the trial court’s jurisdiction—which they did not here. Moreover, it is

hornbook Texas law that the exhaustion-of-administrative-remedies doctrine does

not apply to prevent Texas trial courts from adjudicating claims alleging that a

government agency has acted outside the limits of its statutory authority.

      For each of the reasons presented in this brief, this Court should reverse the

trial court’s erroneous dismissal of Dr. Jefferson’s Uniform Declaratory Judgment

Act claims and hold, pursuant to Texas law and the uncontroverted evidence, that

Defendants’ prosecution of Dr. Jefferson for her treatment and care of animals

owned by San Antonio Pets Alive is ultra vires and unlawful.




                                         20
                                    ARGUMENT

I.    THE TRIAL COURT ERRED BY DISMISSING DR. JEFFERSON’S UNIFORM
      DECLARATORY JUDGMENT ACT CLAIMS FOR FAILURE TO FIRST EXHAUST
      ADMINISTRATIVE REMEDIES BECAUSE—AS A MATTER OF LAW—THE
      DOCTRINE DOES NOT APPLY.

      Dr. Jefferson’s first issue on appeal is the trial court’s erroneous dismissal of

her Uniform Declaratory Judgment Act claims, which asked the court to declare—

among other things—that Oria and the TBVME have no authority to discipline Dr.

Jefferson for her treatment and care of animals owned by San Antonio Pets Alive

pursuant to the “owner exemption” of the Veterinary Licensing Act. 1.CR.213-16.

Because the trial court did not reach the merits of Dr. Jefferson’s UDJA claims—

but instead dismissed them for failure to exhaust administrative remedies—the

threshold issue as to her UDJA claims is this:         did the trial court correctly

determine that Dr. Jefferson’s failure to first exhaust administrative remedies

divested the trial court of its inherent authority to determine her challenge to the

TBVME’s ultra vires acts? Based on the plain language of the statute at issue and

settled Texas law, the answer to that question is “no.” Accordingly, the dismissal

of Dr. Jefferson’s UDJA claims should be reversed and her claims reinstated and

reached.




                                          21
      A.     The Baseline Rules: Texas District Courts Have Subject-Matter
             Jurisdiction Unless It Is Expressly Taken Away, and Texas
             Governmental Agencies Have No Jurisdiction Unless It Is
             Expressly Given.

      The “analytical starting point” for determining an agency’s objection to a

trial court’s jurisdiction “is article V, section 8 of the Texas Constitution,” which

“provides that a district court’s jurisdiction ‘consists of exclusive, appellate, and

original jurisdiction of all actions, proceedings, and remedies, except in cases

where exclusive, appellate, or original jurisdiction may be conferred by this

Constitution or other law on some other court, tribunal, or administrative body.’”

City of Round Rock v. Whiteaker, 241 S.W.3d 609, 640 (Tex. App.—Austin 2007,

pet. denied) (quoting TEX. CONST. art. V, § 8). In addition, “[t]he Legislature has

provided by statute that district courts possess ‘the jurisdiction provided by Article

V, Section 8, of the Texas Constitution,’ and ‘may hear and determine any cause

that is cognizable by courts of law or equity and may grant any relief that could be

granted by either courts of law or equity.’” Id. (quoting TEX. GOV’T CODE §§

24.007-.008); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.

2000). Accordingly, Texas district courts “are courts of general jurisdiction,”

Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.

2002), and are therefore presumed to “have subject matter jurisdiction” over a

dispute “unless a contrary showing is made.” Whiteaker, 241 S.W.3d at 640



                                         22
(quoting Subaru of Am., 84 S.W.3d at 220); see also Dubai Petroleum, 12 S.W.3d

at 75.

         On the other hand, “‘there is no presumption that administrative agencies are

authorized to resolve disputes. Rather, they may exercise only those powers the

law, in clear and express statutory language, confers upon them,’” and “‘[c]ourts

will not imply additional authority to agencies, nor may agencies create for

themselves any excess powers.’” Whiteaker, 241 S.W.3d at 641 (quoting Subaru

of Am., 84 S.W.3d at 220) (emphasis added); see also Thomas v. Long, 207 S.W.3d

334, 340 (Tex. 2006). In short, the baseline rule is clear: the trial court has

jurisdiction, and the TBVME has no authority to divest the trial court of

jurisdiction over any particular dispute, unless the Legislature has expressed its

clear and plain intent to the contrary.

         B.    Dr. Jefferson Was Not Required to Exhaust Administrative
               Remedies Because the Legislature Did Not Confer Upon the
               TBVME Exclusive Jurisdiction Over the Treatment of Animals
               by Their Owners; And Regardless, Several Exceptions to the
               Exhaustion Doctrine Apply Here.

         The trial court’s judgment “grants Defendants’ plea to the Jurisdiction in

part and dismisses Dr. Jefferson’s claims under the Uniform Declaratory Judgment

Act without prejudice” because “Dr. Jefferson must exhaust her administrative

remedies. . . .”      1.CR.855.    Failure-to-exhaust was not a ground raised in

Defendants’ jurisdictional plea. 1.CR.67-71. Regardless, there are many reasons



                                           23
that the trial court’s dismissal of Dr. Jefferson’s UDJA claims for “failure to

exhaust” is erroneous. Each reason will be briefed in turn, but the fundamental

problem with the trial court’s judgment is the simple and inexorable tenet of Texas

jurisprudence that “when”—as here—“an agency is exercising authority beyond its

statutorily conferred powers,” “the doctrine of exhaustion of administrative

remedies is not applicable.”       Westheimer Indep. Sch. Dist. v. Brockette, 567

S.W.2d 780, 785 (Tex. 1978) (emphasis added); City of Sherman v. Pub. Util.

Comm’n of Tex., 643 S.W.2d 681, 683-84 (Tex. 1983) (same); see also Tex.

Student Hous. Auth. v. Brazos Cnty. Appraisal Dist., No. 13-0593, 2015 WL

1870013, at *6 (Tex. Apr. 24, 2015) (“If an injured party with standing brings and

proves an action seeking to confine [a government agency] within its statutory

constraints . . . courts may intervene to provide an appropriate remedy, such as an

injunction to prevent [the agency] from continuing to exceed its limited statutory

authority.”). The trial court’s dismissal is in error.

             1.     The Legislature did not confer upon the TBVME exclusive
                    jurisdiction over the care and treatment of animals by their
                    owners, owners’ employees, or designated caretakers.

      Exhaustion of administrative remedies is not a legal requirement that exists

“in the air,” but rather becomes pertinent if (and only if) the Texas Legislature has

assigned a governmental agency “exclusive” jurisdiction over the specific subject

matter at issue in a particular dispute. See Cash Am. Int’l Inc. v. Bennett, 35



                                           24
S.W.3d 12, 15 (Tex. 2000); Tex. Dep’t. of Licensing & Regulation v. Roosters

MGC, LLC, No. 03-09-00253-CV, 2010 WL 2354064, at *6 (Tex. App.—Austin

June 10, 2010, no pet.) (mem. op.); Tex. Mut. Ins. Co. v. Tex. Dep’t. of Ins., Div. of

Workers’ Comp., 214 S.W.3d 613, 616 (Tex. App.—Austin 2006, no pet.). As this

Court has explained, only when the Legislature has granted a state agency “the sole

authority to make the initial determination in a dispute” does the agency have

“exclusive jurisdiction,” which in turn operates to require a party to first exhaust

administrative remedies before filing suit.      Tex. Mutual, 214 S.W.3d at 616

(emphasis original); see also Cash Am., 35 S.W.3d at 15. Accordingly, the first

issue in any failure-to-exhaust analysis is whether the agency has been granted

exclusive jurisdiction over a specific dispute. Tex. Mutual, 214 S.W.3d at 616.

      Whether a statute confers upon a state agency exclusive jurisdiction to first

determine a dispute is a question of statutory construction, the purpose of which is

“to give effect to the Legislature’s intent.” Cash Am., 35 S.W.3d at 16 (citing

Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994)). A statute

may confer exclusive jurisdiction expressly (by stating that the agency has

“exclusive, original jurisdiction” rather than “general and original power and

jurisdiction”), Subaru of Am., 84 S.W.3d at 223, or implicitly (by enacting “a

pervasive regulatory scheme indicat[ing] that [the Legislature] intended for the

regulatory process to be the exclusive means of remedying the problem”), id. at


                                         25
221; see also Whiteaker, 241 S.W.3d at 641. Either way, the ultimate test for

whether the Legislature has given an agency exclusive jurisdiction is whether the

language of the statute in question “indicate[s] clearly or plainly that the

Legislature intended” to divest Texas district courts of subject-matter jurisdiction

over a particular dispute in favor of the state agency’s initial determination. Cash

Am., 35 S.W.3d at 16. This decision is one for the Legislature—not the agency—

and courts “cannot permit [an agency] to augment its statutorily-conferred

jurisdiction merely because it asserts reasons of policy or practicality to do so.”

Tex. Mutual, 214 S.W.3d at 621; see also BCY Water Supply Corp. v. Residential

Inv. Inc., 170 S.W.3d 596, 600 (Tex. App.—Tyler 2005, pet. denied) (“Courts will

not divine by implication additional authority to agencies, nor may agencies create

for themselves any excess powers.”). And, critically, the exclusive-jurisdiction

inquiry is performed on a claim-by-claim basis, meaning that (1) even if an agency

has exclusive jurisdiction generally over a subject matter, it may not have

exclusive jurisdiction over a specific claim within that general subject matter, and

(2) even if an agency has exclusive jurisdiction over one claim, it may not have

exclusive jurisdiction over related claims. See Butnaru v. Ford Motor Co., 84

S.W.3d 198, 206-07 (Tex. 2002) (holding Motor Vehicle Board granted exclusive

jurisdiction in statute, but not over plaintiff’s declaratory judgment claims);

Whiteaker, 241 S.W.3d at 641-42 (civil service commissions have exclusive


                                        26
jurisdiction to determine some claims but not others); Forest Oil Corp. v. El Rucio

Land & Cattle Co., 446 S.W.3d 58, 70-71 (Tex. App.—Houston [1st Dist.] 2014,

pet. filed) (holding Railroad Commission has authority over “pervasive regulatory

scheme” regarding “environmental issues incident to oil and gas production in

Texas,” but no statute “clearly or plainly indicate[s]” that the Legislature intended

the Commission to have exclusive jurisdiction over landowners’ environmental

contamination claims). Thus, the first step in analyzing the trial court’s dismissal

of Dr. Jefferson’s UDJA claims for failure to exhaust administrative remedies is to

decide whether the Legislature conferred upon the TBVME exclusive jurisdiction

over the treatment or care of an animal by its owner, owner’s employee, or

designated caretaker—i.e., the “owner exemption.” It did not.

      First, no case can be made that the Legislature expressly conferred exclusive

jurisdiction upon the TBVME; the words “exclusive jurisdiction” or any variation

thereof are nowhere to be found in the Veterinary Licensing Act. See TEX. OCC.

CODE § 801.001-.557.       And while the TBVME is undoubtedly tasked with

adopting a regulatory scheme of “rules of professional conduct appropriate to

establish and maintain a high standard of integrity, skills, and practice in the

veterinary medicine profession” generally, id. § 801.151(b), nothing in the Act or

any other law places upon the agency any authority to regulate the provision of

such care by an animal’s owner, owner’s employee, or designated caretaker. To


                                         27
the contrary, the Legislature expressly excluded from the TBVME’s authority such

care. Id. § 801.004(1). It should go without saying that when the Legislature has

exempted from an agency’s authority the regulation of a specific arena within a

broader regulatory scheme, the Legislature has necessarily not conferred upon that

agency exclusive authority over the exempted arena.

      Unsurprisingly, that is what Texas courts have uniformly held when facing

the same question. In Tara Partners, Ltd. v. City of S. Hous., for example, the

court was tasked with determining whether the Texas Water Code conferred upon

the Texas Commission on Environmental Quality exclusive jurisdiction to first

adjudicate a rate dispute between a municipally owned water utility and ratepayers

living within the corporate limits of the municipality. 282 S.W.3d 564, 571 (Tex.

App.—Houston [14th Dist.] 2009, pet. denied). In a plea to the jurisdiction, the

city asserted that the trial court had no jurisdiction over the claims because the

TCEQ had exclusive jurisdiction pursuant to the Water Code, which at the time

conferred upon the agency pervasive general authority to adopt a regulatory

scheme over water utilities.   Id.   But as the court of appeals explained, the

appropriate legal inquiry was not whether the Legislature conferred exclusive

subject-matter jurisdiction upon the agency generally, but rather “whether the

[L]egislature intended the [prescribed] regulatory process as the exclusive means

of remedying” the specific controversy—there, “a rate dispute between a


                                       28
municipally owned water and sewer utility and ratepayers living within the

corporate limits of that municipality.” Id. The court answered that question “no”

because despite the Legislature’s provision of a pervasive water-utility regulation

scheme, the Legislature expressly exempted from the agency’s authority the

“power or jurisdiction to regulate or supervise the rates or service of a utility

owned and operated by a municipality. . . .” Id. at 573. In other words, where a

statute confers upon an agency exclusive jurisdiction over a statutory scheme

generally but excepts from that authority a more specific policy area, the statute

does not confer exclusive jurisdiction over the excepted policy area.

      The same conclusion was reached by the Texas Supreme Court in City of

Sherman v. Pub. Util. Comm’n of Tex., 643 S.W.2d 681 (Tex. 1983): when the

Public Utility Commission was granted jurisdiction to regulate public utilities

generally but not “municipally-owned utilities,” the Commission had no exclusive

jurisdiction to determine a dispute related to a city-owned utility’s water usage. Id.

at 685. Because “the legislative intent to exclude municipally-owned utilities from

the Act’s jurisdictional provisions is clear,” id. at 684, the Court reasoned, the

exhaustion-of-administrative-remedies doctrine did not apply, id. at 683.

      And the same is true here. Although the Legislature unquestionably granted

the TBVME authority generally to regulate the provision of veterinary care, it

expressly excluded from the agency’s jurisdiction the treatment or care of an


                                         29
animal “in any manner” by the animal’s owner, owner’s employee, or designated

caretaker. TEX. OCC. CODE § 801.004(1). As in City of Sherman, therefore, the

legislative intent to exclude the more specific policy area from the agency’s

general regulation of a broader policy area “is clear.” See 643 S.W.2d at 684. And

because the Legislature excluded from the TBVME’s authority regulation of the

treatment or care “in any manner” under the “owner exemption,” it necessarily

follows that the Legislature did not confer “exclusive jurisdiction” upon the

TBVME to determine disputes involving the “owner exemption.” See id. at 683-

84.     Accordingly,     the   exhaustion-of-administrative-remedies      doctrine   is

inapplicable, and the trial court’s judgment to the contrary is in error. See id.

             2.     Even if the Legislature had granted the TBVME exclusive
                    jurisdiction over conduct covered by the “owner
                    exemption,” several exceptions to the exhaustion-of-
                    remedies doctrine apply to retain the trial court’s
                    jurisdiction over Dr. Jefferson’s UDJA claims.

      A judicial determination that a dispute lies within an agency’s exclusive

jurisdiction does not end the exhaustion-of-administrative-remedies inquiry; rather,

a court must next decide whether one of the many “exceptions to the doctrine”

applies. City of Sherman, 643 S.W.2d at 683. Here, several of those exceptions

apply to defeat the TBMVE’s jurisdictional plea.




                                          30
                   a.    The exhaustion doctrine does not divest a district
                         court of jurisdiction to adjudicate claims alleging that
                         a governmental agency is acting outside its authority.

      It is black-letter law that the exhaustion-of-administrative-remedies doctrine

is inapplicable to claims alleging that a state agency is acting outside of its

statutorily conferred authority. As the Texas Supreme Court recently affirmed, “If

an injured party with standing brings and proves an action seeking to confine [a

government agency] within its statutory constraints . . . courts may intervene to

provide an appropriate remedy, such as an injunction to prevent [the agency] from

continuing to exceed its limited statutory authority.” Tex. Student Hous. Auth.,

2015 WL 1870013, at *6; see also City of Sherman, 643 S.W.2d at 683 (explaining

that the exhaustion doctrine does not apply to claims that an agency acted outside

its authority); Westheimer Indep. Sch. Dist., 567 S.W.2d at 785 (same). This Court

has repeatedly confirmed this settled jurisdictional rule. See Roosters MGC, 2010

WL 2354064, at *6 (noting that the exhaustion-of-administrative-remedies doctrine

does not apply to claims seeking “a declaration regarding [an agency’s] general

authority under a statute”); Tex. Mun. Power Agency v. Pub. Util. Comm’n, 100

S.W.3d 510, 520 (Tex. App.—Austin 2003) (“The narrow appellate procedure

provided by the APA to attack a particular [agency] order, on any of the available

grounds, does not displace the district court’s ability to determine the scope of an

agency’s authority through a properly brought UDJA action. . . .”); Larry Koch,


                                        31
Inc. v. Tex. Natural Res. Conservation Comm’n, 52 S.W.3d 833, 839-40 (Tex.

App.—Austin 2001, pet. denied). As this Court has emphasized:

       In all events, however, the exhaustion rule is not without exceptions.
       For example, judicial intervention is not barred by the rule when an
       administrative agency purports to act outside its statutory powers. In
       such a case, the purposes underlying the exhaustion rule are not
       applicable: judicial and administrative efficiency are not served, and
       agency policies and expertise are irrelevant, if the agency’s final
       action will be a nullity.

Larry Koch, 52 S.W.3d at 839-40.16

       Here, it is undisputable that Dr. Jefferson’s Uniform Declaratory Judgment

Act claims allege that the TBVME and Oria have acted outside the scope of their

authority by bringing disciplinary action against Dr. Jefferson for her care and

treatment of animals owned by San Antonio Pets Alive.                              1.CR.213-16.

Furthermore, it is undisputable that Dr. Jefferson’s claims challenge the agency

and Oria’s authority to bring any such claims against her or other SAPA employees

and volunteers for their care and treatment of San Antonio Pets Alive’s animals—

not just the specific allegations that the agency is presently advancing against Dr.


16
   See also Smith v. Abbott, 311 S.W.3d 62, 80 (Tex. App.—Austin 2010, pet. denied)
(acknowledging that exhaustion of administrative remedies is not a ground for dismissal of
“claims [that] allege acts ultra vires of [a state actor’s] authority”); Mag-T, L.P. v. Travis Cent.
Appraisal Dist., 161 S.W.3d 617, 625 (Tex. App.—Austin 2005, pet. denied) (“An aggrieved
party is excused from exhausting its administrative remedies if . . . an administrative agency
purports to act outside its statutory powers.”); Friends of Canyon Lake, Inc. v. Guadalupe-
Blanco River Auth., 96 S.W.3d 519, 527 (Tex. App.—Austin 2002, pet. denied) (listing
exceptions to exhaustion doctrine); Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v.
O’Connor & Assocs., 267 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2008, no. pet.)
(“[C]ourts may intervene in administrative proceedings when an agency exercises authority
beyond its statutorily conferred powers. . . . [F]or this exception to apply, the [plaintiff] was
required to allege that the agency had acted wholly outside its jurisdiction. . . .”).
                                                  32
Jefferson. Id. Accordingly, Dr. Jefferson’s claims fall squarely under the ultra

vires exception to the exhaustion-of-administrative-remedies doctrine, and the trial

court’s holding to the contrary is patent error.

                    b.     The exhaustion doctrine does not divest a district
                           court of jurisdiction if forcing a plaintiff to first
                           exhaust administrative remedies would subject the
                           plaintiff to irreparable harm.

      The exhaustion-of-administrative-remedies doctrine also does not apply

when having to first submit to an administrative process would cause or permit

harm to the plaintiff that the administrative process itself cannot remedy. Hous.

Fed’n of Teachers, Local 2415 v. Hous. Indep. Sch. Dist., 730 S.W.2d 644, 646

(Tex. 1987). As the Texas Supreme Court has explained:

      Parties are not required to pursue the administrative process regardless
      of the price. If irreparable harm will be suffered and if the agency is
      unable to provide relief, the courts may properly exercise their
      jurisdiction in order to provide an adequate remedy.

Id. at 646. In Hous. Fed’n of Teachers, the Supreme Court held that a group of

teachers did not have to first exhaust their administrative remedies to challenge the

school district’s lengthening of their workday because implementation of the new

workday would “affect their child care arrangements, transportation arrangements,

and second jobs.” Id. at 645-46. The Court reasoned that because the teachers

would thereby suffer “immediate and irreparable harm” if the plan were

implemented while they first pursued an administrative remedy, and because the


                                          33
administrative process itself could not provide any remedy for that harm, the trial

court was not barred by the exhaustion doctrine from adjudicating the dispute. Id.

at 646. 17

       In this case, the trial-court evidence was uncontroverted that the TBVME’s

ultra vires conduct is causing, has caused, and will cause irreparable harm to Dr.

Jefferson and San Antonio Pets Alive that the administrative process cannot

remedy. In fact, the harm to Dr. Jefferson and San Antonio Pets Alive of having to

delay resolution of her challenge to the TBVME’s ultra vires acts—until after the

TBVME has completed its ultra vires acts against her—is more burdensome than

that recognized as sufficient in Hous. Fed’n of Teachers. The uncontroverted

evidence at trial indicated that it would be “impossible” for San Antonio Pets Alive

to continue its highly successful lifesaving efforts under the TBVME’s rules and

view of the law. 2.RR.162. For example, the non-profit organization would not be

able to use volunteers “for any kind of medical handling or treatment, even

medicated baths,” 2.RR.162, because the agency’s rules prohibit a veterinarian

from delegating care to non-veterinarians unless—among other things—the non-


       17
           Both this Court and the Houston 14th Court of Appeals have likewise held that the
exhaustion-of-administrative-remedies doctrine is not applicable when the plaintiff would incur
irreparable harm by first pursuing administrative remedies. Mag-T, 161 S.W.3d at 625 (“An
aggrieved party is excused from exhausting its administrative remedies if . . . the administrative
remedies are inadequate and the exhaustion of administrative remedies would cause irreparable
injury.”); City of Hous. v. Williams, 99 S.W.3d 709, 715 (Tex. App.—Houston [14th Dist.] 2003,
no. pet.) (“[E]xceptions to the doctrine . . . allow immediate access to Texas courts when . . . the
exhaustion of remedies will cause irreparable injury or administrative remedies are
inadequate.”).

                                                34
veterinarians are paid directly by a veterinarian (not by a governmental entity,

animal shelter, or non-profit corporation). See 22 TEX. ADMIN. CODE § 573.10(a);

id. § 573.80(13).    Nor would SAPA be able to rely on its non-veterinarian

employees to provide medical care under the agency’s rules. 2.RR.162; see supra.

In addition, the veterinarians SAPA does employ would be in jeopardy of losing

their licenses if those rules applied to animal shelters. 2.RR.163. This threat is not

hypothetical but very real and is already impacting SAPA’s ability to save lives:

following the agency’s ultra vires investigation, one of SAPA’s veterinarians

resigned from the organization, and SAPA has been unable to attract other

veterinarians to work on behalf of the shelter. 2.RR.163.

      In essence, San Antonio Pets Alive’s lifesaving operation would be shut

down if the TBVME has its way. 2.RR.164. So too, likely, would the City of San

Antonio’s “No Kill” efforts. 2.RR.164. An organization that aims to save all of

the animals impounded at a large open-admission animal shelter simply cannot

comply with the TBVME’s rules—which are directed towards private veterinary

clinics, not animal shelters struggling every day to provide care and treatment for

hundreds or thousands of animals. And, of course, the TBVME itself has no

ability to remedy these substantial and dramatic harms if the agency is ultimately

determined to be acting ultra vires after it completes its disciplinary process. No

TBVME administrative remedy can undo or compensate Dr. Jefferson for the


                                         35
damage its ultra vires acts are causing to Dr. Jefferson and SAPA. Thus, Dr.

Jefferson and SAPA are caught in a “lose-lose” quagmire. Like the teachers in

Hous. Fed’n. of Teachers, she is faced with either risking further and additional

disciplinary actions for non-compliance, or facing substantial, direct, and

immediate harm to her mission, her organization, and the animals she saves by

complying with the agency’s rules.      Because she is facing and has incurred

irreparable harm, the exhaustion doctrine does not defeat the trial court’s

jurisdiction over her claims. See Hous. Fed’n. of Teachers, 730 S.W.2d at 646.

                   c.    The exhaustion doctrine does not divest a district
                         court of jurisdiction to determine legal questions.

      This Court has also repeatedly held that the exhaustion-of-administrative-

remedies doctrine is inapplicable when the question presented is legal in nature and

thus more appropriately addressed by the courts than by an administrative agency.

See Mag-T, 161 S.W.3d at 625; Strayhorn v. Lexington Ins. Co., 128 S.W.3d 772,

780 (Tex. App.—Austin 2004), aff’d, 209 S.W.3d 83 (Tex. 2006); Friends of

Canyon Lake, 96 S.W.3d at 527 (“[T]he requirement of exhaustion of

administrative remedies generally has been held inapplicable to questions of

law.”). As the Houston 1st Court of Appeals has written:

      [T]he administrative exhaustion requirement does not apply and,
      consequently, an aggrieved party may seek relief in the courts without
      overcoming that hurdle . . . if the issues presented involve a pure
      question of law, such as when the uncontroverted facts show that the
      board lacked authority to take the action that caused the harm. . . .

                                        36
Hous. Indep. Sch. Dist. v. Rose, No. 01-13-00018-CV, 2013 WL 3354724, at *3

(Tex. App.—Houston [1st Dist.] July 2, 2013, no pet.) (mem. op.).

      In this case, “the uncontroverted facts show that the board lacked authority”

to discipline Dr. Jefferson for her care and treatment of animals owned by San

Antonio Pets Alive. See id. As is fully explained in Part II of this brief, the

uncontroverted evidence demonstrates that (1) San Antonio Pets Alive owned the

animals in question; (2) Dr. Jefferson’s care and treatment of SAPA’s animals

constituted the treatment or care of animals by the animals’ owner, employee of

the owner, or designated caretaker; and (3) San Antonio Pets Alive did not accept

ownership of the animals and Dr. Jefferson did not set up her position with SAPA

with the intent to violate the Veterinary Licensing Act. See supra Part II. To the

contrary, Dr. Jefferson, the City of San Antonio, and San Antonio Pets Alive’s

intent at all times was to save animals’ lives. Id. Accordingly, Dr. Jefferson’s

treatment and care of SAPA’s animals falls squarely within the “owner exemption”

to the Veterinary Licensing Act, and the TBVME thus has no authority over the

matter. Id. And because these issues are determinable by review of the law and

uncontroverted facts, the exhaustion doctrine does not apply.

                   d.    The exhaustion doctrine does not require a plaintiff to
                         participate in an “exercise in futility.”

      Finally, the exhaustion-of-administrative-remedies doctrine does not divest a

trial court of jurisdiction when pursuit of administrative remedies would be futile

                                        37
under the circumstances. Strayhorn, 128 S.W.3d at 780-81; Hous. Indep. Sch.

Dist., 2013 WL 3354724, at *4. For example, when the parties have been locked

into adversarial positions and the agency itself is fully aware of the plaintiff’s legal

position but simply holds an opposing view of the law, there is no point in forcing

the plaintiff to go through an administrative process before challenging the

agency’s view of the law. Strayhorn, 128 S.W.3d at 781. As this Court has said,

doing so would be “an exercise in futility.” Id.

      Here, it is abundantly clear that the state agency is wholly aware of Dr.

Jefferson’s legal position and simply holds a different and opposite view of the law

under the uncontroverted facts of the case. Indeed, there are no facts that require

further development; the issue is simply a question of which parties’ view of the

law is right and which is wrong under the presented facts. Dr. Jefferson has

repeatedly urged the agency and Oria to recognize that the TBVME has no

authority under the facts of this case pursuant to the “owner exemption” to the

Veterinary Licensing Act, and the agency has shown no interest in doing so.

      In fact, during the initial administrative proceedings in this case, the

TBVME acknowledged that Dr. Jefferson was an employee of San Antonio Pets

Alive and that SAPA was the owner of the animals in question, 1.CR.117, yet still

refused to follow the “owner exemption.” When Dr. Jefferson protested in the

hearing that the agency was not complying with the “owner exemption,” Oria told


                                          38
her to “go [complain] to the Legislature.” 2.RR.140. In other words, Oria’s mind

is made up and she has shown no desire to reassess her position (even despite

grilling from the Legislature).

      What makes Oria’s “Go to the Legislature” response particularly ironic is

that Oria herself went to the Legislature, made slanderous and false allegations

regarding Dr. Jefferson in a public legislative committee hearing, and lobbied the

Legislature in favor of a bill that would expressly alter the Veterinary Licensing

Act so as to exclude animal-shelter veterinarians from the list of persons and

conduct exempt from the TBVME’s jurisdiction. See Committee on Urban Affairs

Committee on April 21, 2015.18 In other words, Oria lobbied the Legislature to

change the law in order to give the TBVME authority to prosecute animal-shelter

veterinarians such as Dr. Jefferson, yet in this proceeding continues to claim that

the agency already has authority to prosecute animal-shelter veterinarians. If that

does not demonstrate the complete and utter futility of Dr. Jefferson continuing to

participate in an ultra vires administrative proceeding in which the TBVME and

Oria are both prosecutor and ultimate arbiter, nothing does. Because Texas law

does not require a person to jump through futile administrative hoops to stop a

government entity’s ultra vires act, Dr. Jefferson need not first subject herself to

the TBVME’s ultra vires prosecution of her before contesting the agency’s



18
   Viewable at http://tlchouse.granicus.com/MediaPlayer.php?view_id=37&clip_id=10813 (last
visited June 19, 2015).
                                             39
authority to prosecute her in the first instance. For this and the many other reasons

presented herein, the trial court’s stated ground for dismissing Dr. Jefferson’s

UDJA claims—her alleged failure to exhaust administrative remedies—is plainly

incorrect.

      C.     The Trial Court’s Dismissal of Dr. Jefferson’s UDJA Claims Is
             Also Not Justified on the Unreached Grounds Presented in
             Defendants’ Plea to the Jurisdiction.

      The trial court erroneously dismissed Dr. Jefferson’s UDJA claims on the

stated ground that Dr. Jefferson failed to exhaust administrative remedies.

1.CR.855; see supra Part I.A-B. Out of an abundance of caution, Dr. Jefferson

will also briefly address the two unreached arguments advanced in the TBVME’s

plea: (1) that the agency has statutory authority to bring an enforcement action;

and (2) lack of ripeness. 1.CR.69-71.

      The TBVME’s first argument—that it has general authority to bring any

enforcement action against a licensed veterinarian—is not a ground for dismissing

Dr. Jefferson’s lawsuit, but rather is an argument on the merits of her claims. It is

also incorrect: the Veterinary Licensing Act plainly excludes from the agency’s

general authority any regulation of the treatment or care of an animal “in any

manner” by its owner, employee of the owner, or designated caretaker. TEX. OCC.

CODE § 801.004(1). Thus, the agency’s general authority is of no import to the

resolution of this case (and it is in any event no ground for dismissal).



                                          40
      The agency’s second argument in its plea—that Dr. Jefferson’s UDJA

claims are not “ripe” for judicial review, 1.CR.70-71—is also demonstrably wrong.

To determine whether a dispute is ripe for judicial consideration, courts look to

“(1) fitness of issues for judicial decision and (2) hardship to parties of withholding

judicial review.” Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d

17, 26 (Tex. App.—Austin 2008, pet. dism’d) (citing Perry v. Del Rio, 66 S.W.3d

239, 250 (Tex. 2001)). Ripeness is established when the plaintiff has demonstrated

“that [it] would suffer hardship if judicial review is withheld until administrative

proceedings have concluded.” Id. In turn, hardship is shown when participating in

an administrative proceeding “requires an immediate and significant change in the

plaintiffs’ conduct of their affairs with serious penalties attached to

noncompliance.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 153 (1967),

abrogated on other grounds in Califano v. Sanders, 430 U.S. 99 (1977)). Under

this standard, Dr. Jefferson’s claims are ripe.

      First, as a threshold matter, even the case that the agency relies on to make

its “ripeness” challenge—Rea v. State, 297 S.W.3d 379 (Tex. App.—Austin 2009,

no pet.)—acknowledges that ripeness is inherent when a state agency is “act[ing]

in excess of its powers and jurisdiction.” Id. at 384 (citing Subaru Am., 84 S.W.3d

at 220). That is because being subjected to a governmental entity’s ultra vires act

is injurious in and of itself. Indeed, the Court in Rea specifically pointed out that


                                          41
the litigant in that case “does not allege the Board . . . lacks authority to make an

initial determination regarding the revocation of suspension of a . . . license.” Id.

at 384-85. The opposite is true here; that is the very claim that Dr. Jefferson

advances. 1.CR.213-16.

      Second, contrary to the agency’s assertions, the fact that the TBVME has not

completed its unlawful and ultra vires disciplinary action against Dr. Jefferson

does not mean that her claims are necessarily “unripe.” Rather, a claim is ripe

when—as here—the agency has taken steps to impose requirements on a litigant or

there is an “existing or continuing threat of liability or penalty.” R.R. Comm’n of

Tex. v. CenterPoint Energy Res. Corp., No. 03-13-00533-CV, 2014 WL 4058727,

at *3 (Tex. App.—Austin Aug. 14, 2014, no pet.) (mem. op.); see also Mitz, 278

S.W.3d at 26; Abbott Labs., 387 U.S. at 153. Moreover, Dr. Jefferson’s claims are

“ripe” because following the agency’s rules and view of Texas law would

uncontestedly “require[] an immediate and significant change in [her and San

Antonio Pets Alive’s] conduct of their affairs with serious penalties attached to

noncompliance.” Id. (quoting Mitz, 278 S.W.3d at 26; Abbott Labs., 387 U.S. at

153). The evidence was uncontroverted that complying with the agency’s rules

and view of Texas law would effectively destroy San Antonio Pets Alive’s

lifesaving efforts. See supra. SAPA would be unable to save the lives it saves

through the heroic efforts of its non-veterinarian employees and volunteers. Id.


                                         42
Indeed, according to the uncontroverted testimony, it would be impossible for

SAPA to continue its current business practices without risking serious penalties

for non-compliance with the agency’s rules. Id. The TBVME put on no evidence

to the contrary. Accordingly, Dr. Jefferson’s claims are undoubtedly “ripe” for

judicial review. 19




19
   The trial court’s judgment expressly dismisses Dr. Jefferson’s UDJA claims for failure to
exhaust administrative remedies. 1.CR.855. Likewise, the trial court’s Findings of Fact and
Conclusions of Law state that the trial court declines to reach the merits of Dr. Jefferson’s claims
(other than her rule challenges) pursuant to the doctrine of “exhaustion of administrative
remedies.” 2.CR.36. Nonetheless, in what appears to either be a typographical error or
misstatement, the trial court also stated in a conclusion of law that Dr. Jefferson’s UDJA claims
should be dismissed because they are “redundant of the remedies [for Dr. Jefferson’s rule-
challenge claims] in Section 2001.038.” 2.CR.38. To the extent this conclusion is deemed
operative, it too is plainly incorrect and constitutes additional grounds for reversal of the trial
court’s judgment. Dr. Jefferson’s UDJA claims broadly attacked the TBVME’s actions as “in
excess of its authorizations under the [Veterinary Licensing] Act” because they “interfere with or
impair Dr. Jefferson’s legal rights and privileges.” 1.CR.213. Among other things, Dr.
Jefferson’s UDJA claims asked for declarations that Dr. Jefferson’s (along with SAPA’s foster
parents’ and volunteers’) care and treatment of SAPA’s animals falls under the Act’s “owner
exemption,” and that the agency’s and Oria’s actions against Dr. Jefferson exceed their statutory
authority. 1.CR.213-16. On the other hand, Dr. Jefferson’s rules challenges under Texas
Government Code § 2001.038 are limited to the challenges allowed by that Code—i.e.,
challenges to “[t]he validity or applicability of” agency rules. 1.CR.216 (quoting TEX. GOV’T
CODE § 2001.038(a)). Specifically, Dr. Jefferson challenged the validity and applicability of
various TBVME rules under the facts at issue and asked that they be invalidated. 1.CR.216-23.
Thus, her UDJA claims are not redundant with her rule challenges. Moreover, even if they were,
that would not be a ground for dismissing her UDJA claims. There is no authority in Texas for
the proposition that a claim’s redundancy is grounds for lack of jurisdiction, and such a holding
would violate the constitutional and legal principle that Texas courts begin with inherent subject-
matter jurisdiction unless the Legislature has provided otherwise. See supra. Accordingly, any
operative conclusion that Dr. Jefferson’s UDJA claims (which attacked the TBVME’s statutory
authority) are subject to dismissal because they are “redundant” with her rule challenges (which
attacked the TBVME’s rules) is patently erroneous and adds additional reversible error into the
record.
                                                 43
II.    THE TRIAL COURT SHOULD HAVE DECLARED—AND THIS COURT SHOULD
       DECLARE—THAT THE BOARD’S PROSECUTION OF DR. JEFFERSON FOR
       HER TREATMENT AND CARE OF ANIMALS OWNED BY SAN ANTONIO PETS
       ALIVE IS ULTRA VIRES AND UNLAWFUL.

       Given that the trial court had jurisdiction to determine Dr. Jefferson’s UDJA

claims, see supra Part I, the trial court should have reached the merits of those

claims based on the uncontroverted evidence and testimony presented by Dr.

Jefferson at the combined plea hearing and trial on the merits. While Dr. Jefferson

sought a number of declarations, her claims boil down to one central verity:

pursuant to the “owner exemption” to the Veterinary Licensing Act, the TBVME

has no authority over Dr. Jefferson’s care and treatment of the animals owned by

San Antonio Pets Alive. Based on the plain language of the “owner exemption”

and the uncontroverted evidence presented at trial, this Court should hold that the

TBVME’s proceedings against Dr. Jefferson are ultra vires and unlawful. At

worst, the Court should remand the case to the trial court for consideration of the

merits.20

       The heart of this case is the “owner exemption” to the Veterinary Licensing

Act, which explicitly excludes from the TBVME’s authority—and thereby


20
   The trial court declined to determine the facts necessary to apply the “owner exemption” and
thus neither expressly nor impliedly found such facts for or against either party. See 1.CR.855-
57; 2.CR.36-38. Nor is there legally sufficient evidence to support fact findings against Dr.
Jefferson that would preclude application of the “owner exemption,” and the facts are
uncontroverted and were demonstrated in her favor as a matter of law. See Part II; see Dow
Chem. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Because there is no evidence creating a fact
issue that would prevent summary judgment in Dr. Jefferson’s favor as to the application of the
“owner exemption,” this Court should reach the exemption’s application and render judgment
that the exemption applies and that the TBVME’s prosecution of Dr. Jefferson is ultra vires.
                                                44
prohibits the agency from regulating—the “treatment or care of an animal in any

manner by the owner of the animal, an employee of the owner, or a designated

caretaker of the animal, unless the ownership, employment, or designation is

established with the intent to violate [the Act].” TEX. OCC. CODE § 801.004(1). In

this case, the TBVME stipulated that San Antonio Pets Alive was the owner of the

animals in the shelter’s care, 2.RR.41-42, leaving just two merits questions to be

resolved: (1) whether Dr. Jefferson’s provision of medical care to SAPA’s animals

constituted “the treatment or care of an animal in any manner by the owner of the

animal, an employee of the owner, or a designated caretaker of the animal; and (2)

whether San Antonio Pets Alive’s ownership of its animals, or Dr. Jefferson’s role

with the non-profit, was “established with the intent to violate” the Act. Those

questions were answered at trial.

      A.    Dr. Jefferson’s Care and Treatment of San Antonio Pets Alive’s
            Animals Was “By the Owner of the Animal, an Employee of the
            Owner, or a Designated Caretaker of the Animal.”

      The first merits issue to resolve is whether Dr. Jefferson’s care and treatment

of San Antonio Pets Alive’s animals was “by the owner of the animal, an employee

of the owner, or a designated caretaker of the animal.”         TEX. OCC. CODE §

801.004(1) (emphasis added). The Legislature’s use of the word “or” in the

provision creates a disjunctive list of categories, any of which can be demonstrated

to meet the exclusion. See E. Tex. Salt Water Disposal Co., Inc. v. Werline, 307



                                         45
S.W.3d 267, 271 (Tex. 2010). As a matter of law and fact, Dr. Jefferson met the

exemption’s requirement.

      First, Dr. Jefferson’s actions were the actions of the owner of the animals—

San Antonio Pets Alive. It is elementary law that as legal fictions, corporations

cannot physically act on their own behalf but instead “must act through human

agents.” In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 762 (Tex. 2006) (citing

Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex. 1995)); Hammerly Oaks, Inc. v.

Edwards, 958 S.W.2d 387, 391 (Tex. 1997) (“Corporations can, of course, ‘act

only through agents of some character.’”) (quoting Fort Worth Elevators Co. v.

Russell, 123 Tex. 128, 70 S.W.2d 397, 402 (1934)). As a result, “[a]s a general

rule, the actions of a corporate agent on behalf of the corporation are deemed the

corporation’s acts.” Holloway, 898 S.W.2d at 795 (emphasis added). Just as, for

example, a corporation’s in-house attorney’s work is an act of the corporation

itself, Dr. Jefferson’s in-house veterinary work is an act of San Antonio Pets Alive.

See Hexter Title & Abstract Co., Inc. v. Grievance Comm., Fifth Cong. Dist., State

Bar of Tex., 142 Tex. 506, 179 S.W.2d 946, 953-54 (Tex. 1944) (“His acts are the

acts of the corporation. . . .”). Thus, Dr. Jefferson’s care and treatment of SAPA’s

animals is “by the owner of the animal[s].” TEX. OCC. CODE § 801.004(1).

      Dr. Jefferson would meet even the strictest exception to Texas’s rule that the

acts of corporate agents constitute the acts of the corporation: the exception for


                                         46
punitive damages. See Hammerly Oaks, 958 S.W.2d at 391. In Hammerly Oaks,

the Texas Supreme Court explained that for purposes of determining whether a

corporation may be liable for punitive damages for the acts of a person, Texas law

has a stricter rule that distinguishes between the acts of “the corporation itself” (for

which punitives may be awarded) and “that of a mere servant or employee” (for

which punitives may not be awarded). Id. (citing Fort Worth Elevators, 70 S.W.2d

at 406). A person’s acts are those of “the corporation itself” if the person fits into

any of “four classes of corporate agents: (a) Corporate officers; (b) those who

have authority to employ, direct, and discharge servants of the master; (c) those

engaged in the performance of nondelegable or absolute duties of the master; and

(d) those to whom a master has confided the management of the whole or a

department or division of his business.” Id.

      Here, the evidence is conclusive and uncontroverted that Dr. Jefferson fits

into several of these categories. She is uncontestedly a corporate officer of SAPA:

she   is   the    Executive    Director    and     a   board    member.      2.RR.124;

3.RR.PX43:EJ001539. She is also the “highest ranking corporate officer, vested

with overall responsibility for SAPA’s day-to-day affairs, including the care

provided to its animals.” 3.RR.PX43:EJ001539. Thus, she is charged with the

“absolute duties of the master,” and “the management of the whole or a department

or division of [the] business.” Hammerly Oaks, 958 S.W.2d at 391 (quoting Fort


                                          47
Worth Elevators, 70 S.W.2d at 406). Accordingly, Dr. Jefferson’s provision of

care and treatment of animals owned by San Antonio Pets Alive is—as a matter of

law—“the treatment or care of an animal in any manner by the owner of the

animal.” TEX. OCC. CODE § 801.004(1).

      Dr. Jefferson is also “a designated caretaker of the animal[s]” owned by San

Antonio Pets Alive. Id. As the Executive Director and lead veterinarian of San

Antonio Pets Alive, Dr. Jefferson rightfully had the ability to include herself as one

of the “designated caretakers” for the shelter animals owned by and in the custody

of San Antonio Pets Alive. The word “caretaker” means “one that takes care of”

or “one that gives physical or emotional care and support.” WEBSTER’S NINTH

NEW COLLEGIATE DICTIONARY at 208 (1988). It cannot seriously be asserted that

as the lead veterinarian who provided treatment and care for the SAPA animals at

issue, Dr. Jefferson was somehow not a “designated caretaker” of the animals. For

this reason too, she satisfies the “owner exemption.”

      And finally, Dr. Jefferson was an “employee of the [animals’] owner”—San

Antonio Pets Alive. TEX. OCC. CODE § 801.004(1). Again, it is undisputed that

Dr. Jefferson is the Executive Director and lead veterinarian of San Antonio Pets

Alive, 2.RR.124, and is SAPA’s “highest ranking corporate officer, vested with

overall responsibility for SAPA’s day-to-day affairs, including the care provided to

its animals.”   3.RR.PX43:EJ001539.       The Internal Revenue Service includes


                                         48
corporate officers in its definition of “an employee of the corporation” unless she

“does not perform any services or performs only minor services and . . . neither

receives nor is entitled to receive, directly or indirectly, any remuneration.” 26

CFR 31.3121(d)-1.        Although the TBVME in attachments to its plea to the

jurisdiction (and at all times prior to this lawsuit being filed) conceded that Dr.

Jefferson was an employee of SAPA, 1.CR.117, it nonetheless contested Dr.

Jefferson’s employment status at trial by alleging that she failed to pay herself.

But Dr. Jefferson demonstrated at trial that she did receive remuneration from San

Antonio Pets Alive, albeit indirectly, from a transfer of monies from San Antonio

Pets Alive to Austin Pets Alive to pay for her services. 2.RR.125 (“San Antonio

Pets Alive paid $35,000 towards my salary.”). And regardless, even if she had not

received remuneration from SAPA, that would only preclude her from meeting the

IRS’s definition of an “employee” if she also did “not perform any services or

perform[ed] only minor services” for San Antonio Pets Alive—and it is undisputed

that she performed both all managerial and lead veterinary services for the

organization. See supra. Thus, although Dr. Jefferson’s work need only qualify as

one of the three categories of conduct falling under the “owner exemption,” she

met all three requirements at trial. 21


21
   In addition, after the treatment and care in question, the Board of Directors of San Antonio
Pets Alive adopted and ratified Dr. Jefferson’s care and treatment of animals as the care and
treatment of San Antonio Pets Alive itself, and ratified her caretaker designation. 2.RR.196-97;
3.RR.PX43; see Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998) (corporation may
ratify agent’s actions as its own).
                                                49
      B.     Dr. Jefferson Established San Antonio Pets Alive with the Intent
             to Save Animals’ Lives—Not to Violate a Law.

      The last merits inquiry regarding the application of the “owner exemption”

is whether “the ownership, employment, or [caretaker] designation [was]

established with the intent to violate” the Veterinary Licensing Act. TEX. OCC.

CODE § 801.004(1). On this point too, the evidence was uncontroverted and

conclusive: Dr. Jefferson and the City of San Antonio (from whom the animals

were transferred to San Antonio Pets Alive) established SAPA’s ownership of the

animal, and Dr. Jefferson established San Antonio Pets Alive (and her position

with and duties thereunder), for the sole purpose of saving animals’ lives—not

with an intent to violate the Veterinary Licensing Act.

      The concept for San Antonio Pets Alive did not even begin with Dr.

Jefferson but rather the City of San Antonio, whose then-Director of the Office of

Innovation and Reform, Joe Angelo, was tasked with developing a strategy to save

more pets’ lives at San Antonio’s municipal shelter—which at the time was killing

70 percent of impounded animals and described by Angelo as “wholly

inadequate.” 2.RR.69-70. Angelo conducted a national review of animal-shelter

best practices and concluded that Dr. Jefferson’s work at Austin Pets Alive was

“leagues above everybody else’s.”      2.RR.70.    From there, the two ended up

reaching an agreement for a new non-profit, San Antonio Pets Alive, to contract

with the City of San Antonio to become a high-volume partner to rescue animals

                                         50
from the City’s municipal shelter. 3.RR.PX5. The evidence was uncontroverted

that at no point in the negotiations or discussions in setting up San Antonio Pets

Alive or its contract with the City of San Antonio did the idea of violating the

Veterinary Licensing Act ever cross Angelo’s mind. 2.RR.76. The only goal was

to save animals’ lives and to “help San Antonio get to no-kill [status].” 2.RR.71.

      In addition, Dr. Jefferson’s uncontroverted testimony demonstrated that

neither SAPA’s ownership of the animals nor the establishment of Dr. Jefferson’s

role was in any way intended to violate the Act. Her intent in forming San Antonio

Pets Alive was singular and simple: “to save every adoptable dog and cat in

danger of being killed at the City of San Antonio shelter.” 2.RR.141. In no way

did Dr. Jefferson intend to violate the Veterinary Licensing Act. To the contrary,

Dr. Jefferson explained that it was her full understanding—and in fact, it was

“common knowledge” among animal shelters—that once a shelter owns an animal,

it is completely legal for the shelter to provide treatment and care to those owned

animals without violating the Veterinary Licensing Act. 2.RR.144-50. Indeed, at

the same time that San Antonio Pets Alive was taking ownership of the animals in

question, the TBVME itself was issuing public guidance stating that animal

shelters do not violate the Veterinary Licensing Act by providing veterinary care to

animals they own without regard to the Act’s requirements.           Again, in the

TBVME’s 2012 “Board Notes” publication, the agency wrote:


                                         51
      After the [“stray hold”] time period for holding the animal has
      elapsed, usually three days and set by local ordinance, then the shelter
      may claim the animal is abandoned and the shelter is the owner.
      Under Texas law, [the shelter] or a caretaker designated by the
      [shelter] can perform acts of veterinary medicine on the animal . . .
      without concern for establishing a veterinarian-client-patient
      relationship, because the [shelters] and caretakers are exempt from
      the Veterinary Licensing Act.

3.RR.PX18:EJ000638 (emphasis added).

      This is no small point: the TBVME in this litigation is actually taking the

position that Dr. Jefferson intended to violate the law by following the TBVME’s

own publicly disseminated legal guidance to shelters issued contemporaneously

with San Antonio Pets Alive taking ownership of the animals at issue. Oria and her

agency in this regard are not only inconsistent, hypocritical, and illogical, but their

argument is nearly frivolous. It simply cannot be that a person subjectively intends

to violate a law by acting with the understanding that the person’s conduct is in full

and complete compliance with the law as publicly proclaimed by the very

governmental agency charged with enforcing the law.                The evidence is

uncontroverted that the City of San Antonio and Dr. Jefferson did not intend to

violate the Veterinary Licensing Act when they transferred ownership of the

animals from the City to San Antonio Pets Alive, and Dr. Jefferson did not intend

to violate the Act when she set up and took own her positions in San Antonio Pets

Alive. Both organizations’ and Dr. Jefferson’s sole purpose with regard to all of

the acts in question was single-minded: to save lives.

                                          52
III.   THE TRIAL COURT ALSO ERRED BY DENYING DR. JEFFERSON’S REQUEST
       FOR MANDAMUS RELIEF.

       In addition to her UDJA claims (which were dismissed) and her rule

challenges (two of which were granted), Dr. Jefferson brought a mandamus claim

against Oria. 1.CR.228. As Dr. Jefferson explained to the trial court, Oria’s ultra

vires prosecution of Dr. Jefferson violated the “owner exemption” to the

Veterinary Licensing Act and thereby exceeded her authority as explicitly limited

by the Texas Legislature. 1.CR.43-44, 388-89, 425-26; see also supra Part II.

Defendants filed no plea to the jurisdiction contesting the trial court’s jurisdiction

over Dr. Jefferson’s mandamus claim, and the trial court did not expressly address

Dr. Jefferson’s mandamus claim in its judgment, but did deny “[a]ll relief not

expressly granted” in the judgment.               1.CR.857.      Thus, it appears that Dr.

Jefferson’s mandamus claim was reached but denied on non-substantive grounds

(because the trial court expressly declined to determine whether the “owner

exemption” applied to Dr. Jefferson’s work at San Antonio Pets Alive). That too

was in error. 22

       In trial-court briefing, Defendants asserted—without authority—that

“[m]andamus is barred by sovereign immunity.” 1.RR.327. That is incorrect:



22
   It is also plausible that the trial court impliedly dismissed Dr. Jefferson’s mandamus claim for
failure to exhaust administrative remedies. In any event, the legal analysis is the same. The trial
court had jurisdiction to reach Dr. Jefferson’s mandamus claims because the exhaustion doctrine
does not apply to her claims. See supra Part I. And her mandamus claim is correct on the
merits. See infra.
                                                    53
mandamus is available to compel a government official to perform a mandatory

duty “without implicating sovereign immunity.” Whiteaker, 241 S.W.3d at 628

(citing State v. Epperson, 121 Tex. 80, 42 S.W.2d 228, 231 (1931) (suit to compel

tax collector to give back wrongfully withheld funds can be brought without the

consent of the state)). When—as here—“the complained-of acts of a state official

are illegal or outside [her] authority, ‘an entity or person whose rights have been

violated . . . may bring suit to remedy the violation or prevent its occurrence, and

such a suit is not a suit against the State requiring legislative or statutory

authorization.’” Id. at 628 (quoting Dir. of Dep’t of Agric. & Env’t v. Printing

Indus. Ass’n of Tex., 600 S.W.2d 264, 265-66 (Tex. 1980) and citing Tex. Highway

Comm’n v. Tex. Ass’n of Steel Imps., Inc., 372 S.W.2d 525, 530-31 (Tex. 1963);

Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945); Epperson, 42

S.W.2d at 231).23 Here—as explained above—Oria’s continued prosecution of Dr.

Jefferson was and is illegal and outside her statutory authority, and thus

unprotected by sovereign immunity.

       Defendants alternatively argued that mandamus relief should be denied

because “Dr. Jefferson has an adequate remedy at law, that being a suit for judicial

review” after the agency completes its illegal prosecution of Dr. Jefferson.



23
    See also Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997) (“A state official’s
illegal or unauthorized actions are not acts of the State. Accordingly, an action to determine or
protect a private party’s rights against a state official who has acted without legal or statutory
authority is not a suit against the State that sovereign immunity bars.”).
                                                   54
1.CR.327; see also 1.CR.457-58.      Specifically, citing Walker v. Packer, 827

S.W.2d 833, 841 (Tex. 1992), Defendants assert that the costs to Dr. Jefferson “of

having to go through trial and the appellate process does not make the remedy at

law inadequate.” 1.CR.458. But as this Court is well-aware, that is no longer the

law in Texas. See In re McAllen Med. Ctr, Inc., 275 S.W.3d 458, 469 (Tex. 2008)

(orig. proceeding) (rejecting “Walker’s categorical approach”). Instead, the Texas

Supreme Court has held that mandamus is appropriate to intervene in “cases in

which the very act of proceeding. . . —regardless of outcome—would defeat the

substantive right involved.” Id. at 465. Moreover, the adequacy of an alternative

remedy by appeal is determined by a “careful balance of jurisprudential

considerations.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.

2004) (orig. proceeding). “An appellate remedy is [only] ‘adequate’ when any

benefits to mandamus review are outweighed by the detriments.” Id.

      Here, there is no benefit to an ultra vires prosecution of Dr. Jefferson, and

there are substantial harms to Dr. Jefferson—including unnecessary legal fees,

disparagements to her and her organization’s character, and making it nearly

impossible for SAPA to do the lifesaving work for which it was founded. Again,

the evidence was uncontroverted that SAPA would effectively be shut down if it

had to comply with the agency’s rules pending administrative resolution of the

matter because SAPA would be unable to save animals’ lives using the volunteers


                                        55
and non-veterinarian employees it currently uses to provide completely legal care

and treatment for impounded animals. See supra Part I.B.2.b. These are all things

for which the TBVME’s administrative process has no remedy at all; no rules or

statute empower the administrative process to remedy the dramatic harm caused by

the TBVME’s ultra vires acts. The harm cannot be undone.

      Finally, Dr. Jefferson’s mandamus request is valid on the merits. Mandamus

relief is appropriate and available not only to compel a government official “to

perform a ministerial act,” Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d

97, 101 (Tex. App.—Austin 2014, no pet.), but also to protect a person “from

illegal or unauthorized acts” of government “officials” sued “in their official

capacities,” Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988, at

*5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.). Dr. Jefferson has

demonstrated both.     As already explained, Oria has no authority to bring

disciplinary proceedings against Dr. Jefferson for her care and treatment of animals

owned by San Antonio Pets Alive because that care falls squarely within the

“owner exemption” to the Veterinary Licensing Act. See supra Part II. By the

Legislature’s clear directive (and as recognized by Oria in the 2012 Board Notes),

Oria has no authority to discipline animal-shelter veterinarians for their care and

treatment of animals owned by the shelter.       Id.   Oria’s actions are therefore

“illegal” and “unauthorized.”    See Hamilton, 2014 WL 7458988, at *5.           In


                                        56
addition, Oria has no authority or discretion to continue such ultra vires

proceedings, and a mandatory duty to refrain from enforcement actions for which

she and the TBVME have no statutory authority. She thus has no discretion to

pursue actions against Dr. Jefferson, and her failure to perform the ministerial act

of dropping proceedings in light of the application of the “owner exemption”

merits and necessitates mandamus relief. See Janek, 451 S.W.3d at 101.

IV.   THE TRIAL COURT ERRED BY ISSUING UNREQUESTED, AMBIGUOUS,                     AND
      LEGALLY INCORRECT DECLARATIONS.

      The last part of the trial court’s judgment issues what appears to be a

declaration of the TBVME’s authority to enforce “other laws” against animal-

shelter veterinarians. It states:

      The Court, however, does find that the ownership exception does not
      allow a veterinarian to ignore other laws outside the Act that relate to
      his or her veterinary license, including all laws relating to the handling
      of prescription drugs (dangerous or controlled). Because it is the
      veterinary license, not the ownership of the animals, that allows a
      veterinarian to take certain actions, those actions may be overseen by
      TBVME to ensure compliance. Such investigations and administrative
      actions are not categorically banned by the ownership exemption and
      the Court will not prevent TBVME from exercising its administrative
      powers to investigate such complaints. In exercising its quasi-judicial
      authority in overseeing the administrative process, however, TBVME
      must do so in accordance with the boundaries of the Act, and with
      proper and due regard for the owner exemption, as mandated by the
      Texas Legislature.

1.CR.856. No such declaration was requested in the pleadings of either party, and

candidly, it is not even clear what this particular passage of the judgment means. It



                                         57
should be reversed and struck from the judgment in its entirety; alternatively, it

should be modified to cure ambiguity.

      A judgment cannot be granted on a ground not asserted in a motion. G&H

Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011); Speck v. First

Evangelical Lutheran Church of Hous., 235 S.W.3d 811, 819 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). Accordingly, the passage quoted above is

erroneous on its face because no party requested such declaratory relief in any

motion before the trial court. In addition, a judgment cannot be awarded on a

claim not advanced in a party’s live pleadings, TEX. R. CIV. P. 301, and neither the

TBVME’s nor Dr. Jefferson’s live pleadings requested a declaration regarding Dr.

Jefferson’s compliance with “other laws” or the agency’s authority to investigate

violations of such “other laws.”

      Alternatively, the passage should be modified to cure its ambiguity. “The

entry of [a] judgment rendered is a formal act, and same should, at least, evidence

with clarity and certainty the action taken by the court.” Gen. Exch. Ins. Corp. v.

Appling, 144 S.W.2d 699, 701 (Tex. Civ. App.—El Paso 1940, no writ). Appellate

courts have authority to modify ambiguous trial court judgments. Onoray Davis

Truck Co. v. Ford Motor Credit Co., 690 S.W.2d 40, 42 (Tex. App.—Houston

[14th Dist.] 1985, no writ).       “A judgment is ambiguous if it is reasonably

susceptible of more than one meaning.” Tate v. King, No. 03-96-00532-CV, 1997


                                         58
WL 217197, at *1 (Tex. App.—Austin May 1, 1997, no writ) (mem. op.) (not

designated for publication). In this case, the trial court’s extraneous declaration is

not clear as to its meaning or impact on the parties. For example, does the passage

declare that the TBVME has authority to prosecute animal-shelter veterinarians for

violating “other laws” even under circumstances when the “owner exemption”

applies? Or alternatively, that the TBVME has authority to investigate but not

prosecute veterinarians for violations of other laws when the exemption applies?

Or does it merely acknowledge that veterinarians must comply with “other laws”

even though the TBVME has no authority to regulate the area? The passage does

not “evidence with clarity and certainty the action taken by the court.” See Gen.

Exchange, 144 S.W.2d at 701.

      Finally, to the extent the trial court’s extraneous declaration is read to hold

that the TBVME has authority to prosecute Dr. Jefferson for violations of “other

laws” in her treatment or care of animals owned by San Antonio Pets Alive, then

the declaration is erroneous and should be reversed or modified. The agency’s

enabling statute—the Veterinary Licensing Act—states that the Act “does not

apply” in the context of the “owner exemption.”            See TEX. OCC. CODE §

801.004(1). Because agencies have no powers or authority not expressly conferred

upon them, Whiteaker, 241 S.W.3d at 641, the TBVME has only those powers

conferred upon it in the Veterinary Licensing Act. Because the Act “does not


                                         59
apply” in the context of the “owner exemption,” and the TBVME gets all of its

authority from the Act, the TBVME necessarily has no authority to prosecute Dr.

Jefferson for any conduct—in or outside the Veterinary Licensing Act—that is

exempted from the agency’s jurisdiction by virtue of the “owner exemption.” 24

                                           PRAYER

       For these reasons, Dr. Jefferson respectfully requests that this Court reverse

that part of the trial court’s judgment (1) dismissing Dr. Jefferson’s UDJA claims

for failure to exhaust administrative remedies; (2) denying (or dismissing) Dr.

Jefferson’s requested mandamus relief; and (3) issuing ambiguous, unrequested,

and improper declaratory relief regarding “other laws.” Dr. Jefferson requests that

the Court render the judgment that the trial court should have rendered, including

holding that the TBVME and Oria’s disciplinary proceedings against Dr. Jefferson

are illegal and ultra vires, and issuing injunctive and mandamus relief to stop Oria

and the agency from unlawfully disciplining Dr. Jefferson for her care and

treatment of animals owned by San Antonio Pets Alive.                       Alternatively, Dr.

Jefferson requests that the Court reverse the trial court’s judgment and remand the

case to the trial court for consideration of the merits of Dr. Jefferson’s UDJA and

mandamus claims. Finally, Dr. Jefferson requests that the Court strike or modify




24
  The trial court’s conclusion of law No. 8, which appears to mirror the extraneous passage in its
judgment, is erroneous for the same reasons. See 2.CR.38.
                                               60
the trial court’s ambiguous declaration regarding “other laws,” and that the Court

issue any such other relief to which she may be entitled in equity or law.

                                       Respectfully submitted,


                                       /s/ Ryan Clinton
                                       Ryan Clinton
                                       State Bar No. 24027934
                                       rdclinton@dgclaw.com
                                       DAVIS, GERALD & CREMER, P.C.
                                       111 Congress Ave., Suite 2800
                                       Austin, Texas 78701
                                       Ph: (512) 537-9938
                                       Fax: (432) 687-1735

                                       David F. Brown
                                       State Bar No. 03108700
                                       dbrown@ebblaw.com
                                       David P. Blanke
                                       State Bar No. 02453600
                                       dblanke@ebblaw.com
                                       EWELL, BROWN & BLANKE, LLP
                                       111 Congress Ave., 28th Floor
                                       Austin, TX 78701
                                       Ph: (512) 457-0233




                                         61
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing was sent this 8th
day July, 2015 as follows:

      VIA EFSP & EMAIL
      Mr. Andrew Lutostanski
      andrew.lutostanski@texasattorneygeneral.gov
      Mr. Ted A. Ross
      ted.ross@texasattorneygeneral.gov
      Office of the Attorney General of Texas
      Administrative Law Division
      P. O. Box 12548
      Austin, TX 78711


                                        /s/ Ryan Clinton
                                       Ryan Clinton




                                          62
                        CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the word processing software used to
produce this document (Microsoft Word), I certify that the number of words in this
brief (excluding the identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, signature, proof of service, certification, certificate of
compliance, and appendix) is 13,966 and that the text of the document is in 14-pt.
font. The text of all footnotes is 12-pt.font.



                                      /s/ Ryan Clinton
                                      Ryan Clinton




                                        63
APPENDIX
                                           DC        BK14324 PG1087
                                                                                        Filed in The District Court
                                                                                         of Travis County, Texas

                                                                                             NOV 18 2014
                                    CAUSE NO. D-1-GN-14-000287                    At                           M.
                                                                                  Amalia Rod rig ez-Mendoza, Cerk
ELLEN JEFFERSON, D.V.M.,                            §           IN THE DISTRICT COURT
                                                    §
                      Plaintiff,                    §
                                                    §
v.                                                  §
                                                    §            127th JUDICIAL DISTRICT
TEXAS STATE BOARD OF VETERINARY                     §
MEDICAL EXAMINERS and NICOLE                        §
ORIA, in her official capacity as Executive         §
Director,                                           §
                                                    §
                      Difendants.                   §            TRAVIS COUNTY, TEXAS


                                         FINAL JUDGMENT

           On August 4, 2014, Plaintiff, Ellen Jefferson, D.V.M. (Dr. Jefferson), and Defendants, the

Texas State Board of Veterinary Medical Examiners (TBVME), and Nicole Oria, in her official

capacity as Executive Director of TBVME, appeared with their attorneys of record and proceeded

to trial before the Court. The Court also heard argument on Defendants' Plea to the Jurisdiction on

that date. After considering the pleadings, motions, stipulations, the requests for judicial notice, the

evidence presented at trial, and the arguments of counsel, the Court renders final judgment as

follows:

           The Court grants Defendants' Plea to the Jurisdiction in part and dismisses Dr. Jefferson's

claims under the Uniform Declaratory Judgment Act without prejudice. Dr. Jefferson must exhaust

her administrative remedies to challenge TBVME's factual findings and allegations and the

application of TBVME's rules to those fmdings and allegations.              See Tex. Occ. Code Ann. §

801.004(1 ).

        The Court fmds that it does have jurisdiction under Section 2001.038 of the Administrative

Procedure Act ("APA") regarding certain rule challenges that Dr. Jefferson asserts. The Court fmds

that TBVME's reliance on Section 2001.038(e) does not bar the Court's consideration of the

CAUSE NO. D-1-GN-14-000287
Page 1 of 3



                                                                                          EXHIBIT A
                                                                      855
                                              DC         BK14324 PG1088




administrative rules at the core of the disputes presented in this suit. Under jurisdiction provided by

Section 2001.038, the Court flnds that the following rules are contrary to Section 801.004(1):

                 1)          Board Rule 573.72, as written, violates the right of a non-proflt or shelter to

employ a licensed veterinarian and seek full protection of the ownership exemption for the

treatment of their animals for which the shelter is the owner. See 22 Tex. Admin. Code§ 573.72. If a

veterinarian is employed by a non-proflt or shelter, their handling of the care of the animals so

owned by their employer will not be generally covered by the Act.

                 2).         Board Rule 573.80(2) also fails to comply with the ownership exemption,

smce it creates a presumption that a person intends to evade the Act and then provides an

impermissibly limited exception that requires the care of a veterinarian to prevent such violation.

See 22 Tex. Admin. Code§ 573.80(2).

        The Court, however, does fmd that the ownership exception does not allow a veterinarian to

ignore other laws outside the Act that relate to his or her veterinary license, including all laws

relating to the handling of prescription drugs (dangerous or controlled). Because it is the veterinary

license, not the ownership of the animals, that allows a veterinarian to take certain actions, those

actions may be overseen by TBVME to ensure compliance. Such investigations and administrative

actions are not categorically banned by the ownership exemption and the Court will not prevent

TBVME from exercising its administrative powers to investigate such complaints. In exercising its

quasi-judicial authority in overseeing the administrative process, however, TBVME must do so in

accordance with the boundaries of the Act, and with proper and due regard for the ownership

exemption, as mandated by the Texas Legislature.

        IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Plea to the

Jurisdiction is granted in part, pursuant to Section 2001.038 of the Administrative Procedure Act;

that Board Rules 573.72 and 573.80(2) are found to be contrary to Section 801.004(1) of the

CAUSE NO. D-1-GN-14-000287
Page 2 of 3




                                                                          856
                                          DC        BK14324 PG1089




Veterinary Practice Act and therefore invalid; and this matter shall be remanded to the TBVME for

further actions consistent with this order.

        All costs of court are assessed against the party who incurred them. All relief not expressly

granted herein is denied. This judgment fmally disposes of all parties and all claims in the entire suit

and is appealable.

        Signed this   _/L day of November, 2014.

                                                        Gisela D. Triana
                                                        2001h District Court
                                                        Travis County, Texas




CAUSE NO. D-1-GN-14-000287
Page 3 of 3




                                                                     857
                                             CAUSE NO. D-1-G -14-000287

ELLEN JEFFERSON, D.V.M.,                                     §
     Plaintiff,                                              §
v.                                                           §
                                                             §
TEXAS STATE BOARD OF                                         §     TRAVIS COUNTY, TEXAS
VETERINARY MEDICAL EXAMINERS                                 §
and NICOLE ORIA, in her official capacity                    §
as Executive Director,                                       §
       Defendants.                                           §     250th JUDICIAL DISTRICT

                                      Findin s of Fact and Co elusions of Law

        On August 4, 2014, this case was tried befor the court including the Defendants' plea to
the jurisdiction. The court signed a Final Take- thing Judgment on November 18, 2014.
Pursuant to the provisions of Rules 296 through 29 of the Texas Rules of Civil Procedure, and
at the request of Plaintiff Ellen Jefferson, D.V.M., ( Dr. Jefferson") the Court hereby enters the
following findings of fact and conclusions of law.
         Because the Court finds that it generally 1 cks subject-matter jurisdiction, except for
limited issues under Section 2001.038 of the Texas overnment Code, only limited findings of
facts would be permitted in this case. Such fact is ues for which exhaustion of administrative
remedies are required include the limitation of the Owner Exemption contained in the Texas
Veterinary Licensing Act, Texas Occupations Cod Section 801.004(1) ("the Act"), regarding
the intent of the licensee.


1.        Dr. Jefferson during all relevant times has a exas veterinary license, and also has been
          the Executive Director of Austin Pets Alive! "APA") and President of San Antonio Pets
          Alive! ("SAPA"), which are related non-pro s that act as no-kill animal shelters.

2.        While Defendants, Texas State Board of Vet rinary Medical Examiners and Nicole Oria,
          its Executive Director, disputed that Dr. Jeff! rson was an employee, she was the official
          agent and director of both non-profits.

3.        Defendants, Texas State Board of Veteri                ary Medical Examiners and Nicole Oria
          (collectively "the Board"), also attempted e           ly on to dispute that SAPA was the owner
          of the relevant animals; at the time of trial          n the merits and the hearing on the State's
          plea to the jurisdiction, both SAPA and the             ity of San Antonio agreed that SAPA was
          the owner ofthe animals who were transfe                d to SAPA from the City's animal control
          department.

4.        The first relevant complaint against Dr. Jef rson involved a citizen who had agreed to
          foster a pregnant dog for SAPA, following t e death of the dog after several days when


Ellen Jefferson, D.V.M. v. Texas State Board of Veterinary
Medical Examiners, et al
Cause No. D-1-GN-14-000287
Findings of Fact and Conclusions of Law                                                        EXHIBIT B
                                                                                                Page I of3

                                                                          36
          neither Dr. Jefferson nor any other veterin ian examined the dog prior to prescribing
          various drugs.

5.        Dr. Jefferson was only able to obtain and dis ense those drugs because of her possession
          of her veterinary license.

6.        The drugs that Dr. Jefferson prescribed forth dog were delivered to the foster parent in a
          manner that may raise concerns about her c pliance with the Dangerous Drug Act and
          other relevant laws, but there is no current j isdiction in this Court for those issues until
          all administrative remedies have been pro erly and timely exhausted, and the Court
          cannot make further findings or conclusions n those issues.

7.        While the Board are seeking administrative         emedies on specific claims, it is clear that
          the dispute between the Board and Dr. Jef           rson (along with APA and SAPA) is not
          solely limited to those individual claims, bu       relates to broader policy disputes between
          the Board, Plaintiff, her shelters, and likely      ther shelters in the State of Texas; this is
          apparent from the voluminous nature of the         filings and actions during litigation of this
          current cause by both sides.

8.        All findings of fact that would be more appr priately classified as conclusions of law are
          hereby adopted as such.




1.        The Court lacks subject matter jurisdiction    this proceeding except for limited claims
          asserted under Section 2001.038 of the        xas Government Code; the Court grants
          Defendants' Plea to the Jurisdiction on allot r claims.

2.        Section 2001.038(e) does not prohibit the          Court's jurisdiction in this case since the
          disputes of the parties are no longer limit        d to individual complaints but have been
          systematic disputes between the Board and          his shelter (and other similar shelters) that
          may have veterinarians in positions of oversi      ht.

3.        Section 2001.038(e) also does not prohibit t e Court's limited jurisdiction in this case to
          review Board Rules 573.72 and 573.80(2) s· ce the Board's rules does not maintain the
          proper balance set by the Legislature in t e owner exemption, as stated by Section
          80 1.004(1 ).

4.        Board Rule 573.72, as written, violates the ight of a non-profit or shelter to employ a
          licensed veterinarian and seek full protec ion of the ownership exemption for the
          treatment of their animals for which the shel r is the owner. See 22 Tex. Admin. Code §
          573.72. If a veterinarian is employed by a n n-profit or shelter, their handling of the care
          of the animals so owned by their employer w ll not be generally covered by the Act or the
          exception would negate the owner exemptio entirely.


Ellen Jefferson, D.V.M. v. Texas State Board of Veterinary
Medical Examiners, et al
Cause No. D-1-GN-14-000287
Findings of Fact and Conclusions of Law
                                                                                              Page 2 of3

                                                                       37
5.       Board Rule 573.80(2) also fails to comply w        h the ownership exemption, since it creates
         a presumption that a person intends to evade       he Act and then provides an impermissibly
         limited exception that requires the care of a v    terinarian to prevent such violation. See 22
         Tex. Admin. Code § 573.80(2). This condif           n, however, would also legally negate the
         exemption entirely.

6.       Board Rules 573.72 and 573.80(2) are contr y to Section 801.004(1) of the Act and are
         invalid.

7.       The Board still has jurisdiction over Dr. efferson even if she satisfies the owner
         exemption, since there remains a fact questio in Section 801.004(1) regarding intent, for
         which the Board is authorized to make initial mdings and conclusion.

8.       The Board also has jurisdiction over Dr.           efferson to ensure that she, as with any
         veterinarian, complies with other laws that r      late to her veterinary license, including all
         laws relating to the handling of prescription      rugs (dangerous or controlled). Because it
         is the veterinary license, not the ownership       f the animals, that allows a veterinarian to
         take certain actions, those actions may be ov      seen by the Board to ensure compliance.

9.       The Court dismisses Dr. Jefferson's request r attorney's fees because Section 2001.038
         does not provide for an award of attorney's tl s.

10.      The Court dismisses Dr. Jefferson's claims u der the Uniform Declaratory Judgment Act
         ("UDJA") since that remedy is redundant of the remedies in Section 2001.038 and
         therefore there is no jurisdiction under the U JA for the suit.

11.       All conclusions of law that would be more a propriately classified as findings of fact are
          hereby adopted as such.

          Signed on the 19th day of December, 2014.


                                                             isela D. Triana
                                                            udge, 200th District Court
                                                            ravis County, Texas




Ellen Jefferson, D.V.M. v. Tems State Board of Veterinary
Medical Examiners, eta/
Cause No. D-l-GN-14-000287
Findings of Fact and Conclusions of Law
                                                                                             Page 3 of3

                                                                     38
§ 801.004. Application of Chapter, TX OCC § 801.004




  Vernon's Texas Statutes and Codes Annotated
    Occupations Code (Refs & Annos)
      Title 4. Professions Related to Animals (Refs & Annos)
        Chapter 801. Veterinarians (Refs & Annos)
           Subchapter A. General Provisions

                                           V.T.C.A., Occupations Code § 801.004

                                             § 801.004. Application of Chapter

                                                 Effective: September 1, 2011
                                                         Currentness


This chapter does not apply to:


  (1) the treatment or care of an animal in any manner by the owner of the animal, an employee of the owner, or a designated
  caretaker of the animal, unless the ownership, employment, or designation is established with the intent to violate this chapter;


  (2) a person who performs an act prescribed by the board as an accepted livestock management practice, including:


     (A) castrating a male animal raised for human consumption;


     (B) docking or earmarking an animal raised for human consumption;


     (C) dehorning cattle;


     (D) aiding in the nonsurgical birth process of a large animal, as defined by board rule;


     (E) treating an animal for disease prevention with a nonprescription medicine or vaccine;


     (F) branding or identifying an animal in any manner;


     (G) artificially inseminating an animal, including training, inseminating, and compensating for services related to artificial
     insemination; and


     (H) shoeing a horse;


  (3) the performance of a cosmetic or production technique to reduce injury in poultry intended for human consumption;



                                                                                                          EXHIBIT C
                                                                                                                                1
§ 801.004. Application of Chapter, TX OCC § 801.004




  (4) the performance of a duty by a veterinarian's employee if:


     (A) the duty involves food production animals;


     (B) the duty does not involve diagnosis, prescription, or surgery;


     (C) the employee is under the direction and general supervision of the veterinarian; and


     (D) the veterinarian is responsible for the employee's performance;


  (5) the performance of an act by a person who is a full-time student of an accredited college of veterinary medicine if the
  act is performed under the direct supervision of a veterinarian;


  (6) an animal shelter employee who performs euthanasia in the course and scope of the person's employment if the person
  has successfully completed training in accordance with Chapter 829, Health and Safety Code;


  (7) a person who is engaged in a recognized state-federal cooperative disease eradication or control program or an external
  parasite control program while the person is performing official duties required by the program;


  (8) a person who, without expectation of compensation, provides emergency care in an emergency or disaster; or


  (9) a consultation given to a veterinarian in this state by a person who:


     (A) resides in another state; and


     (B) is lawfully qualified to practice veterinary medicine under the laws of that state.


Credits
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended by Acts 2007, 80th Leg., ch. 1331, § 4, eff. Sept. 1, 2007; Acts
2011, 82nd Leg., ch. 411 (S.B. 811), § 1, eff. Sept. 1, 2011.


V. T. C. A., Occupations Code § 801.004, TX OCC § 801.004
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                                                                                                     2
                                             BOARD NOTES

Fall 2012 Issue                 A Publicationofthe Texas State Boardof Veterinary MedicalExaminers            Nicole Oria. Executive Director
Phone:(512)305-7555            E-Mail: vet.board(5Ubvme.state.tx.us Website: http://www.tbvme.state.tx.us               Fax:(512)305-7556


Bud E. Alldredge. Jr.. DVM, President         David Rosberg. Jr.. DVM , Vice President                      J. Todd Henry. DVM, Secretary
Richard "Rick" Bonner                                 Janie Carpenter, DVM                                           John D. Clader, DVM
Joe Mac King, DVM                                Manuela "Mamie" Salazar-Harper                                              Chad Upham



                                 FROM THE EXECUTIVE DIRECTOR

                    Creation of Veterinarian-Client-Patient Relationships at Shelters
There has been much discussion of this topic at many of the veterinary meetings I have attended recently.
The creation of a valid veterinarian-client-patient relationship is at the heart of the veterinary profession. So
much so, it is set out clearly in the Veterinary Licensing Act, Chapter 801 of the Occupations Code, Section
801.351:

          (a) A person may not practice veterinary medicine unless a veterinarian-client-patient relationship
          exists. A veterinarian-client-patient relationship exists if the veterinarian:
                  (1) assumes responsibility for medical judgments regarding the health of an animal and a client,
                  who is the owner or other caretaker of the animal, agrees to follow the veterinarian's instructions;
                  (2) possesses sufficient knowledge of the animal to initiate at least a general or preliminary
                  diagnosis of the animal's medical condition; and
                  (3) is readily available to provide, or has provided, follow-up medical care in the event of an
                  adverse reaction to, or failure of, the regimen of therapy provided by the veterinarian.
          (b) A veterinarian possesses sufficient knowledge of the animal for purposes of Subsection (a)
          (2) if the veterinarian has recently seen, or is personally acquainted with, the keeping and care
          of the animal by:
                  (1) Examining the animal; or
                  (2) Making medically appropriate and timely visits to the premises on which the animal is
                  kept.
          (c) A veterinarian-client-patient relationship may not be established by telephone or electronic
                  means.


                                                                                                                 Continued on page 2...

In This Issue...


From the Executive Director                                         I    Licensing Exam Dates andContinuing Education Offerings         3
EnforcementIssues                                                   4    Board Meeting Date                                             5
Confirmed Anthrax Case                                              6    In Memoriam                                                    6
Email Renewal Reminders                                             7    Prescription Access in Texas                                   9
BoardAdoptedRule Changes                                            9    Board Proposed Rule Changes                                    10



                                                                                                                                   EJ 000637

                                                                                                                  EXHIBIT D
Page 2                                              Fall 2012                                 BOARD NOTES

Continuedfrom Page 1...

The Board has always stated that an examination is required to establish a veterinarian-client-patient
relationship. Section (b)(2) was placed within the statute for herd livestock management. The example
contemplated by that language was a livestock feedlot where the veterinarian makes medically appropriate and
timely visits to the premises on which the animal is kept. This subsection does not apply to shelters in the
initial presentation of the animal at the shelter as the veterinarian had not previously made medically
appropriate and timely visits to the premises on which the animal was kept prior to arriving at the shelter. In
fact, the shelter veterinarian does not know where the premises was where the animal was kept. After the time
period for holding the animal has elapsed, usually three days and set by local ordinance, then the shelter may
claim the animal is abandoned and the shelter is the owner. Under Texas law, an animal's owner or a caretaker
designated by the owner can perform acts of veterinary medicine on the animal without involving a
veterinarian and without concern for establishing a veterinarian-client-patient relationship, because the owners
and caretakers are exempt from the Veterinary Licensing Act. Until that point, in order to perform any
veterinary services on that animal, including rabies vaccinations, a veterinarian must conduct an examination
on that animal to establish a veterinarian-client-patient relationship.


The Board does not define an examination, but the Board's rule on maintaining the standard of care,
Section 573.22, and the Board's rule on recordkeeping, Section 573.52, Title 22, Part 24 of the Texas
Administrative Code, still apply. The examination must be sufficient to satisfy an average member of the
local veterinary medical community that the animal is healthy enough for the prescribed treatment. A record of
the examination and the information required under the recordkeeping rule to substantiate the examination is
necessary no matter whether the animal is vaccinated at a shelter, a low-cost vaccination clinic or a private
clinic.



The purpose of the examination, especially in the vaccination scenario, is to ensure the animal is not sick. If a
vaccination is given to a sick animal, the vaccination may not be effective. This is extremely important with
the rabies vaccination, in the control of zoonotic diseases.


Under Section 826.047 of the Health and Safety Code, a veterinarian performing duties under this chapter
(Rabies) is not liable to the owner of an animal for the death of or injury to the animal except in the case of
willful misconduct or gross negligence. This would apply in a civil suit for damages if the animal died when
the veterinarian was performing duties as part of rabies vaccinations, registration, restraint and impoundment
of animals. This does not address the problem of a veterinarian failing to uphold the Veterinary Licensing act
and the Board's Rules of Professional Conduct by failing to establish a veterinarian-client-patient relationship
prior to performing veterinary services on the animal, including vaccinating for rabies, by failing to uphold the
standard of care by not examining an animal prior to treatment, or by failing to record details that substantiate
the examination.



There has been no change to either the statute, any rules regarding this matter or the Board's
interpretation of the Act or rules.



                                                                                                        EJ 000638
Page 3                                                                                                           BOARD NOTES




                                          LICENSING EXAM DATES


                            2012 STATE BOARD EXAMINATION (SBE) SCHEDULE


   All State Board Exams will be administered at participating ACT testing centers. Please read the
   deadline dates carefully. An application must be submitted to TBVME for ALL exams to determine
   eligibility for veterinary licensure in Texas.

   Only approved applicants will be able to purchase and schedule the exam.


    October 2012
    Deadline for application to be received by TBVME: August 24, 2012
    Window for purchasing and scheduling exam: September 1st- 17th, 2012
    Window for taking the exam: October 8th - 19th, 2012


    December 2012
    Deadline for application to be received by TBVME: October 19, 2012
    Window for purchasing and scheduling exam: November 1st- 19th, 2012
    Window for taking the exam: December 3rd - 14th, 2012




                             jSiU;W«ite»M^HwU£5jiiiS£H3!^'uN^-1' c1JUI[faJL^wiBa^^Siii^SiKiiHSi^j^
                   s^^s^^wm.mm^^^mmm^^mfmsm^m,uYm^mi




                                CONTINUING EDUCATION OFFERINGS
Information on available CE may be obtained through the following sources. Additional offerings may be available
through other sources.


  RACE                                                                    Texas A&M
  (Registry ofApprovedContinuingEducation)                                Phone:(979)845-9102
  Search for Available CE:                                                Fax: (979) 862-2832
  http://www.aavsb.org/RACE/RaceSearch.asp                                Email: ceofficef3)cvm.tamu.edu

                                                                          Texas Veterinary Medical Association
                                                                          www.tvma.org
  RACE requires approved providers to issue signed
  certificates of completion, maintain attendance records for 8104 Exchange Dr.
  four years and provide qualification of instructors and CE Austin, TX 78754
  personnel who develop and implement courses.                Phone:(512)452-4224
                                                                          Fax:(512)452-6633


                                                                                                                      EJ 000639
Page 4                                                                                      Fall 2012                                                                   BOARD NOTES



                                                                              ENFORCEMENT ISSUES
                                                                                    DISCIPLINARY ACTIONS

  The following veterinarians have had disciplinary action taken against their licenses. If you would like to receive
  additional information regarding these or other disciplinary actions that have been imposed, please send your
  written request to the Texas Board of Veterinary Medical Examiners, ATTN: Open Records, 333 Guadalupe,
   Suite 3-810, Austin, TX 78701 or by email to vet.board@tbvme.state.tx.us.


                                                                 License
                          Name                                                      City                             Discipline                                               Date of Action
                                                                       #

 less A^i^i^^:^P^|£|t
fifes.i.Adk                                                      llufc BIBB                       pjfffifip^^
  James Cox, DVM                                                     5254   Sugarland             Formal Reprimand with Additional Stipulations July 24, 2012

                                                                                                                     Jwithr Additional: Stipulatidr

  James Gibbs, DVM                                                   2606   Brownsboro            Voluntar>' Surrender of License in Lieu of July 24. 2012'
                                                                                                  Penalties


'•'.     ..'"v.rO" f" ." "-."-.•-   ^-.•"-•.y-\.r ^v^.'y^.ffr'
                                                                  Jl§Pp [pil#tpnip^:
       Rohn Hendricks, DVM                                           7002   Waxahachie            Formal Reprimand with Additional Stipulations                           July 24, 2012

;Dianfl Magee, byM                                         P.&   Tll^fej Monterey, CA             ^|^^p^^i^»> M License ^K^ifi WSSSMH
                                                          m      pm
                                                                 **#>&>-
                                                                                                  0R^ig|^l^^%g}pJ„Years} . .                                iiMHfiiiSMMMii ^SMMM^fiSCSa&^

       Ali Rohani, DVM                                               9257   Allen                 Formal Reprimand with Additional Stipulations July 24. 2012

                                                                                                  FonriaL:R|primand with Additional: Str^
                                                                                                                      li^g.;^,-,,^.   -.^•...^-.h.vi.,.-;   ...^irHi.



       Kelli Shomette, DVM                                           7460   Wylie                 Formal Reprimand with Additional Stipulations                              July 24, 2012




                                                                                    CEASE & DESIST ORDERS

       The following Cease & Desist Orders have been signed and approved by the Board. If you would like to
       receive additional information regarding these or other disciplinary actions that have been imposed, please
       send your written request to the Texas Board of Veterinary Medical Examiners, ATTN: Open Records, 333
       Guadalupe, Suite 3-810, Austin, TX 78701 or by email to vet.board@tbvme.state.tx.us.

   Name                                                                                    City                                              Date of Action

          SlMR^paW                                                                         iiiliflilP^" »" •"" •••^S^S?r^i;^'^'lf.'        lifllp                                       msmM
  Lisa Kronz                                                                               Garland                                           July 24, 2012
                                                                                                                                                             i?r**iSSi?«yjSS
                                                                                                                                             ™.: ...           •*»«*..-. •     -S^^sp^l^..
 Robert Tieperman                                                                          Midway                                            July 24. 2012

                                                                                                                                                 ;iSi2iTlH|^^5P^
  Brandon White                                                                            Alba                                              July 24, 2012

                                                                                                                                                                                            EJ 000640
Page 5                                                                                                                     BOARD NOTES




DisciplinaryActions continued...

In addition to the formal reprimands listed previously there were an additional 72 actions taken against veterinarians. If
you would like to receive additional information regarding these or other disciplinary actions that have been imposed,
please send your written request to the Texas Board of Veterinary Medical Examiners, ATTN: Open Records. 333
Guadalupe, Suite 3-810, Austin, TX 78701 or by email to vet.board@tbvme.state.tx.us.


         Number of Licensees                          Violation Type                                               Sanction
              Disciplined

                                           CQntmumg iiaucauoni              --•-•'™.--'---7S.3v«i?


                                                                                                      adpitiphal(continuing education
                                           Misuse of DEA/DPS Registration                             Administrative penalties

                                ,,;ilr^F
                                                         •fori Accepfance of
                            MM             M»far|^
                                           Display of License                                         Informal reprimand and
                                                                                                      administrative penalty
   m.



                                           Adherence to Law                                           Informal reprimand, jurisprudence
                                                                                                      exam and administrative penalty
                                                                 ..?{•; .3..'.^a^sjaig^ jS-sSgl!                  metm^^msmm'


                                                                              "••   ••'••'•'•'isa^r

                                           Use of Prescription Drugs                                  Informal reprimand, jurisprudence
                                                                                                      exam and administrative penalty




                                                                                                                            533

                                                Board Meeting Dates
                                                        October 30,2012

                             'This date is not official until posted with the Secretary ofState.




                                                                                                                                    EJ 000641
Page 6                                                 Fall 2012                                    BOARD NOTES




         <3?n oMemoriam...
         "Let us hold our lives up to the light of those who walked before us, remembering the
     [footprints they left behind and preserving the pathways they created. "
                                                                                   Jack Fritts, 'TexasA&M Class of '53


         Name                        City. State               Vet. School/Grad. Year    Date of Death
     IMelvin Calliham         College Station, Texas               TAMU/1949                8/19/2012
      Bobby J. Cargill        Bryan, Texas                         TAMU/1960                9/19/2012
      Raymond Ivie            Follett, Texas                       TAMU/1945                9/15/2012
     \Ed B. Avety             Kendalia, Texas                      TAMU/1959                9/30/2012
      E.Byron Range, Jr.      Big Spring, Texas                    TAMU/1951                 10/2/2012




                                                                                                    S^^HJ


            ANTHRAX CASE CONFIRMED IN SHEEP IN IRION COUNTY
    AUSTIN - A yearling female sheep in West Texas has been diagnosed with anthrax. This is the second
    confirmed case of anthrax in a Texas animal for 2012 and the first in livestock this year. The infected
    sheep was located near Mertzon, TX (Irion County,) which is approximately 26 miles southwest of San
    Angelo. The Texas Animal Health Commission (TAHC) has quarantined the premises. TAHC regulations
    require vaccinations of exposed livestock and proper disposal of carcasses before a quarantine can be
    released.

    Anthrax is a bacterial disease caused by Bacillus anthracis, which is a naturally occurring organism with
    worldwide distribution, including Texas. It is not uncommon for anthrax to be diagnosed in livestock or
    wildlife in the southwestern part of the state. Basic sanitation precautions such as hand washing, wearing
    long sleeves and gloves can prevent accidental spread of the bacteria to people if handling affected
    livestock or carcasses.

    Acute fever followed by rapid death with bleeding from body openings are all common signs of anthrax in
    livestock. Carcasses may also appear bloated and appear to decompose quickly. Livestock or animals
    displaying symptoms consistent with anthrax should be reported to a private practitioner or TAHC official.

    "The TAHC will continue to closely monitor the situation for possible new cases across the state.
    Producers are encouraged to consult with their veterinary practitioner or local TAHC office about the
    disease and about preventative measures such as vaccination of livestock," Dr. Dee Ellis, State
    Veterinarian, said.

    For more information regarding anthrax, contact your local TAHC region or 1-800-550-8242 or visit
    www.tahc.state.tx.us.

    The Texas Animal Health Commission works to protect the health of all Texas livestock, including: cattle,
    swine, poultry, sheep, goats, equine animals, and exotic livestock.


                                                                                                                 EJ 000642
Page 7                                                                                                       BOARD NOTES


••••••••••••••••••••••••••••••
•                                                     Our Mission:                                                          •
*          The mission of the Texas State Board of Veterinary Medical Examiners is to establish and enforce                 •
           policies to ensure the best possible quality of veterinary services for the people of Texas.

                                                       Our Goals:
•          The Board and its staff will ensure that Texans are effectively and efficiently served by quality
           veterinary professionals by setting clear standards for professional conduct, by assuring compliance
•                                                                                                                           •
           with the rules of professional conduct and the community standard of care, and seeking solutions to
•          issues that strengthen the profession and protect the public.                                                    •
*                                                                                                                           *
••••••••••••••••••••••••••••••



                                      EMAIL RENEWAL REMINDERS
    Over the years, numerous licensees have commented that it would be nice to receive an email reminder about
    their renewal either in place of or in addition to the postcards that we send out in January of each year. Up
    until now, we have not had the capability to do this, but we are happy to announce that with the 2013 renewals,
    we will begin sending an email reminder to all licensees who provide us with an email address. This will be in
    addition to the postcards that will be mailed out at the same time.
    We will also use this new feature to send a link when a new issue of the newsletter, Board Notes, is available.
    For any other important information that licensees should be made aware of, an email will also be sent. Please
    make sure that we have a current email address for you so that you will receive these email notifications.




                 DID YOU KNOW???                                                  PEER ASSISTANCE

•     Unless you owe for more than the current year, all          If you or someone you know has a substance abuse
      licensees can renew their license online through our        problem, it is far better to voluntarily participate in the Peer
      website.                                                    Assistance Program than to run the risk of disciplinary
                                                                  action, up to and including license revocation. The toll free
                                                                  hotline number is 1-800-727-5152.


    The TBVME does not discriminate on the basis ofrace,                      ADA ACCOMODATIONS
    color, religion, sex, national origin, age or disability in
    employment or in the provision of services, programs          Individuals seeking ADA accommodations should contact
    or activities. Individuals requiring reasonable               the Board's ADA Coordinator, Loris Jones, at
    accommodations should contact the agency's ADA                512/305-7555 or by email at loris.ionesfS.tbvme.state.tx.us.
    Coordinatorat 333 Guadalupe, Suite 3-810, Austin, TX
    78701-3998, or call (512) 305-7555 or 1-800-877-8973
     (TDD). This document may be requested in alternative
    formats by contacting the Board offices.

                                                                                                                        EJ 000643
Page 8                                             Fall 2012                                 BOARD NOTES



               FROM THE TEXAS DEPARTMENT OF PUBLIC SAFETY

                                 PRESCRIPTION ACCESS IN TEXAS


     Dear Dental and Veterinary Professionals,

     In keeping with the agency goal of providing world-class services, the Texas Department of Public
     Safety (DPS), Regulatory Services Division (RSD) is proud to provide Prescription Access in
     Texas (PAT), a secure online prescription monitoring program, which will assist our Texas health
     care and law enforcement professionals in quickly identifying potential prescription drug abuse.
     PAT provides controlled substance prescription dispensing history to authorized dental and
     veterinary professionals, and dental and veterinary board investigators.

         We encourage you to search the last 365-days worth of data, 24-hours a day, seven days a week,
         including:

            • Patient prescription history
            • Physician's own prescribing information

         The Texas Prescription Program was created by the Texas Legislature to monitor Schedule II - V
         controlled substances. Texas Health & Safety Code, Chapter 481, restricts access to prescription
         data to practitioners and pharmacists who are inquiring about their patients, and to various
         regulatory and law enforcement personnel conducting investigations.

         Future enhancements will include pharmacy dispensing summary report for the pharmacist-in-
         charge (PIC).

         DPS continues to take great pride in serving the citizens of Texas by combating terrorism and
         crime, enhancing public safety, strengthening statewide emergency management and providing
         world-class services.


         Steven C. McCraw
         Director, DPS

         RenEarl Bowie
         Director, RSD




         URL: Prescription Access in Texas (PAT) | https://www.texaspatx.com/Login.aspx
         Press Release: http://www.dps.texas.gov/director_staff/public_information/pr080212.htm



                                                                                                     EJ 000644
Page 9                                                                                         BOARD NOTES

                          BOARD ADOPTS CHANGES TO RULES

At the July 24, 2012 Board meeting, the Board voted to adopt the following rules. The adoption was published
in the August 17, 2012 issue of the Texas Register. The full text of the rules can be found on the agency
website http://www.tbvme.state.tx.us/rules.php.


Rule §575.25 Recommended Schedule of Sanctions.
The adopted amendments to §575.25 are intended to make the schedule of disciplinary sanctions apply to all
licensees, veterinarians and equine dental providers alike. These amendments are necessitated by House Bill
(HB) 414, 82nd Legislative Session, which gave the Board the authority to license and regulate equine dental
providers.

Rule §575.28 Complaints—Investigations
The Board adopts amendments to §575.28 to clarify the Board's procedure for investigating complaints by
specifying the information the Board sends to respondent licensees during the course of an investigation in
light of confusion among licensees and members of the public regarding the scope and meaning of the word
"complaint."

The Board has traditionally interpreted "complaint" in §575.28(6) to refer only to the written narrative
allegations submitted by a complainant on the Board's complaint form. The Board does not disclose to the
respondent licensee any other documents submitted by the complainant at the earliest stages of the
investigation process, before the respondent licensee has sent the Board his records and explained his response
to the allegations against him. To preserve this process, and with it the integrity of the Board's investigations,
the adopted amendment provides that the Board will send a summary of the allegations in the complaint to the
respondent licensee initially with a request for a response. Under the adopted amendment, the respondent
licensee has the right to request to review the entire complaint—meaning all documents or materials provided
to the Board by a complainant and upon which the Board initiates a request for a response from the licensee—
unless board staff determines that allowing the respondent licensee to review the complaint in its entirety
would jeopardize an active investigation, as could be the case with certain documents such as investigative
files from other state and federal agencies, second opinions from other licensees or specialists, and copies of
patient records attached to or included with the complaint form. Accordingly, under the adopted amendment
when the complainant responds to the respondent licensee's response, board staff will have the discretion to
withhold from the respondent any materials submitted by the complainant that could jeopardize the
investigation. These changes are intended to preserve the Board's ability to learn the respondent licensee's
version of events without suggestion or influence from outside sources; this ability is a vital tool for board
investigators seeking the truth.

The Board also adopts amendments to §575.28 that allow any member of Board staff to investigate a
complaint, where previously only board investigators could investigate. The Board intends the amendment to
give the Director of Enforcement more latitude in assigning investigation duties by allowing her to assign
complaint investigations to administrative staff, as well as to investigators on staff, depending on the
complexity of the case.




                                                                                                         EJ 000645
Page 10                                           Fall 2012                                  BOARD NOTES

   Continuedfrom page 9...

   The Board has also adopted an amendment to §575.28 to close an inefficient redundancy in
   the investigation process, which required the executive director to review all complaints that
   do not involve medical judgment twice —once in an initial solitary review, and again as part
   of the staff committee. The rule, as amended, allows the director of enforcement to refer a
   report of investigation for a probable violation that does not involve medical judgment
   directly to the staff committee. As a member of the staff committee—which is composed of
   the executive director, the director of enforcement, the investigating staff member and the
   general counsel—the executive director will still review the case and take part in deciding
   whether the case should go forward.

   Rule §577.16 Responsibilities of Board and Staff
   The Board adopts the amendment to §577.16 to include equine dentistry along with
   veterinary medicine as professions that the Board is responsible for regulating under the
   Veterinary Licensing Act. The amendment is necessitated by House Bill (HB) 414, 82nd
   Legislative Session, which gave the Board the authority to license and regulate equine dental
   providers.

                  BOARD PROPOSES CHANGES TO RULES

   At the July 24, 2012 Board meeting, the Board directed staff to post the following proposed
   changes in the Texas Register for comment, the full text of the changes can be found on the
   agency website.

    Rule §573.10 Supervision of Non-Licensed Persons
   The proposed amendment to §573.10 is intended to correct errors in subsection (h) to clarify
   the duties and practice limitations of Registered Veterinary Technicians.

    The Board also proposes the amendment to §573.10 to create cross-references and remove
    redundancies with new proposed §573.19, regarding dentistry, which is also proposed in this
    issue of the Texas Register. In the proposed amendment to §573.10, the subsection that
    previously described the scope of practice for licensed equine dental providers has been
    removed from §573.10 and relocated to proposed new §573.19, so that all of the Board's
    rules regarding dentistry are consolidated to appear together in new proposed §573.19.

    Rule §573.19 Dentistry
    The proposed new rule defines dentistry, a term which is used in §801.002(7) of the
    Veterinary Practice Act, Texas Occupations Code, in the definition of "veterinary medicine"
    as "veterinary surgery, reproduction and obstetrics, dentistry, ophthalmology, dermatology,
    cardiology, and any other discipline or specialty of veterinary medicine." Under §801.251 of
    the Veterinary Practice Act, "a person may not practice, or offer or attempt to practice,
    veterinary medicine unless the person holds a license to practice veterinary medicine issued
    under this chapter." Thus, the Veterinary Licensing Act holds that an unlicensed person may
    not practice dentistry on an animal in Texas. The Veterinary Licensing Act does not,
    however, define "dentistry," so the Board intends proposed new §573.19 to provide that
    definition.


                                                                                                    EJ 000646
Page 11                                                                                       BOARD NOTES


    Continued from page 10...

    The Board proposes the definition of dentistry with the intention to allow unlicensed individuals to brush
    teeth of animals and superficially clean the teeth of animals with gauze, cotton swabs, or dental floss,
    while preventing unlicensed individuals that are not employed and supervised by a veterinarian from
    performing any other more invasive treatment on an animal's teeth or gums, including but not limited to
    using a periodontal scaler on animal teeth to remove plaque or tartar.
    It is important to note that an unlicensed employee of a veterinarian working under appropriate veterinary
    supervision can still perform tooth cleanings and other dental services under proposed new §573.19, with
    the exception of invasive dental procedures as defined under 573.80— procedures that expose the dental
    pulp and dental extractions. The Board does not intend proposed new §573.19 to have any impact on the
    procedures that an employee of a veterinarian can perform under veterinary supervision.

    The Board also proposes new §573.19 to consolidate the Board's rules regarding dentistry into a single
    rule for clarity and ease of reference for both licensees and the general public. Proposed new §573.19
    therefore includes a subsection describing the scope of practice for equine dental providers that previously
    appeared in §573.10, regarding the supervision of non-licensed persons. The Board has proposed a
    parallel amendment to §573.10, which is also published in this issue of the Texas Register, to remove the
    subsection on the scope of practice for equine dental providers and to create cross-references to proposed
    new §573.19. In the interests of clarity, proposed new §573.19 also references the prohibition that appears
    in §573.10 forbidding unlicensed persons from performing any invasive dental procedure as defined under
    §573.80, regarding definitions.

     Rule §573.43 Controlled Substances Registration
     The Board has recently encountered situations in which veterinarians were exempt from the requirement
     to obtain a controlled substance registration under either Texas Department of Public Safety (DPS) or
     United States Drug Enforcement Agency (DEA) rules and laws, but were concerned that they still had to
     obtain a controlled substance registration nevertheless in order to comply with §573.43. The Board does
     not intend its controlled substances registration requirements to be more stringent than that of DEA or
     DPS. The Board therefore proposes an amendment to §573.43 to clarify that a veterinarian does not need
     to have a controlled substances registration from either DPS or DEA if that registration is not required by
     other state or federal law.

     The Board also proposes an amendment to §573.43 to correct an error in subsection (b), adding the word
     "substances" where it was inadvertently not included, so that the phrase now reads "to dispense controlled
     substances." This is not intended to alter the meaning of the rule.

     Rule §573.71 Operation of Temporary Limited-Service Veterinary Services
     In recent years, the Board has requested additional information from veterinarians applying to operate a
     temporary limited-service veterinary service, beyond the categories of information required under
     §573.71. The Board proposes an amendment to §573.71 to make this additional requested information
     required by rule, and thereby to make the rule accurately reflect current Board procedure.
     Rule §573.80 Definitions
     The Board proposes the amendment to §573.80 to correct a typographical error in paragraph (10), adding
     the prefix "non" to "veterinarian" so that the sentence reads: "Immediate Supervision—a veterinarian
     required to immediately supervise a non-veterinarian must be within audible and visual range of both the
     animal patient and the person under supervision." This change does not alter the Board's interpretation of
     the meaning of "Immediate Supervision."

                                                                                                       EJ 000647
Page 12                                             Fall 2012                                    BOARD NOTES




Continuedfrom page 11.


Rule §577.15 Fee Schedule
The Board proposes the amendment to §577.15 to reformat the fees to make them easier to read, to adjust
veterinarian renewal fees lower to match current legislative appropriations for the 2013 fiscal year, to
correct a calculation mistake in the fee for provisional veterinary licenses, to add inactive equine dental
provider fees necessitated by rule changes that created inactive status for equine dental provider licensees,
and to consolidate all the fixed fees that the Board charges into one schedule.

In the proposed rule, the application processing fees and examination fees, which appeared as separate
line items for each initial license in the previous version of the rule, have been consolidated into the
respective initial licenses, and no longer appear as separate fees. The Board proposes this change to
clarify the cost of becoming initially licensed in Texas as either a veterinarian or an equine dental
provider.

With regard to veterinary licenses, the proposed rule decreases veterinary license renewal fees to match
the appropriations granted to the agency. The proposed rule increases the fee for provisional veterinary
licenses that makes the provisional license $50 more expensive than a regular veterinary license, to more
accurately reflect the costs and staff time involved in processing and administering the two separate
examinations that provisional licensees take on their way to becoming full licensees.

With regard to the new inactive fees for equine dental providers, the proposed amendment adds renewal
fees and inactive status fees to the fee schedule so that in fiscal year 2013, equine dental providers who
became licensed for the first time in fiscal year 2012 will have the option to renew their licenses or put
their licenses on inactive status. The Equine Dental Provider Advisory Committee has reviewed these
proposed fees and found by consensus that the proposed fees for equine dental provider licenses are
reasonable.


The proposed amendment adds several fees to the fee schedule that previously appeared in other rules,
such as the fee for duplication of license, and the reactivation fees for both veterinary and equine dental
provider licenses. With the addition of these fees, the Board intends for this rule to reflect all of the fixed
fees that the Board charges. It does not, however, reflect variable fees that the Board has set, such as the
fees for transcripts and records of administrative hearings before the State Office of Administrative
Hearings as set forth in §575.10 of this title (relating to Costs of Administrative Hearings).




                    UPCOMING OFFICE HOLIDAY CLOSURES

                   November 22—23, 2012 in observance of the Thanksgiving Holiday.
                    December 24—26, 2012 in observance of the Christmas Holiday
                        January 1, 2013 in observance of the New Year Holiday


                                                                                                          ^^
                                                                                                          EJ 000648
Page 13                                                                                           BOARD NOTES

                                   NOTICE OF ADDRESS CHANGE

Please email, fax, or mail to:
          Texas Board of Veterinary Medical Examiners
          333 Guadalupe, Suite 3-810
          Austin, Texas 78701
          FAX: 512-305-7556
          Email: vet.board@tbvme.state.tx.us

Please print or type

Name
License Number

Mailing Address:
Street/PO Box

City, State                                                            Zip Code
Email

Practice Address:
Practice Name

Street

City, State                                                            Zip Code
Phone                                                     Fax
Email

Home Address:
Street

City, State                                                            Zip Code
Home Phone                                                Cell Phone
Email

Note: The mailing address is the default address. All documents, forms and letters sent to you
from this agency will be mailed to this address.

The mailing address is printed on your license renewal certificate. If you have changed your
mailing address and need a duplicate renewal certificate, please indicate below.
               Please send a duplicate renewal certificate.
Pursuant to Board Rule 573.76(a) "A veterinarian shall notify the Board of any change of any items in subsection (a)
notlater than the 60th day after the change takes place." Subsection (a) includes: name and license number; clinic or
practice name; physical business address; mailing address; residence address; business telephone number; and
residence and/orcellular telephone number.


                                                                                                            EJ 000649
                                                                                  I
                                                                                  to




              NOTICE TO CLIENTS
     To file a commendation or grievance concerning a veterinarian,
                                 please contact:

     Texas Board of Veterinary Medical Examiners
                   333 Guadalupe, Tower 3, Suite 810
                         Austin, Texas 78701-3942
                          Phone: (512)305-7555                                    Kj




                           Fax: (512)305-7556
     To obtain information about filing a complaint, you may access the Board's
           voicemail 24 hours a day by calling toll free: 1-800-821-3205

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