                                                                                      ACCEPTED
                                                                                  03-14-00774-CV
                                                                                          6885139
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                            9/11/2015 12:00:49 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                         NO. 03-14-00774-CV
        ____________________________________________________
                                                          FILED IN
                                                   3rd COURT OF APPEALS
                 IN THE THIRD COURT OF APPEALS          AUSTIN, TEXAS
                         AT AUSTIN, TEXAS          9/11/2015 12:00:49 PM
        ____________________________________________________
                                                       JEFFREY D. KYLE
                                                            Clerk
TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS, and
    NICOLE ORIA, in Her Official Capacity as Executive Director
                                         Appellants/Cross-Appellees,
                               v.

                     ELLEN JEFFERSON, D.V.M.,
                                          Appellee/Cross-Appellant.
        ____________________________________________________

  On Appeal from the 127th Judicial District Court of Travis County, Texas
                      Cause No. D-1-GN-14-000287
                The Honorable Gisela D. Triana presiding
        _________________________________________________

     BRIEF OF CROSS-APPELLEES TEXAS STATE BOARD OF
  VETERINARY MEDICAL EXAMINERS AND NICOLE ORIA, IN HER
        OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR
      ____________________________________________________

KEN PAXTON                           TED A. ROSS
Attorney General of Texas            Assistant Attorney General
                                     State Bar No. 24008890
CHARLES E. ROY                       OFFICE OF THE TEXAS ATTORNEY
First Assistant Attorney General     GENERAL
                                     ADMINISTRATIVE LAW DIVISION
JAMES E. DAVIS                       P.O. Box 12548
Deputy Attorney General for          Austin, Texas 78711-2548
Civil Litigation                     Telephone: (512) 475-4191
                                     Facsimile: (512) 457-4674
DAVID A. TALBOT, JR.                 Email: ted.ross@texasattorneygeneral.gov
Chief, Administrative Law Division   Attorneys for Appellants/Cross-Appellees

ORAL ARGUMENT CONDITIONALLY REQUESTED                 September 11, 2015
                                         TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iv

RECORD AND PARTY REFERENCES ............................................................. viii

STATEMENT OF THE CASE ................................................................................ ix

CONDITIONAL REQUEST FOR ORAL ARGUMENT ........................................x

ISSUES PRESENTED FOR REVIEW ................................................................... xi

INTRODUCTION .....................................................................................................2

           What this appeal is and is not about: ............................................................2

           Background: ..................................................................................................2

STATEMENT OF THE CASE AND STATEMENT OF FACTS ...........................5

           Statement of Facts Relevant to the Jurisdictional Issue ................................5

SUMMARY OF THE ARGUMENT ........................................................................9

ARGUMENT ...........................................................................................................11

           I.       THE TRIAL COURT’S JUDGMENT THAT IT LACKED
                    SUBJECT MATTER JURISDICTION WAS CORRECT. .............11

                    A. The Act vests the Board with exclusive jurisdiction to
                       determine whether or not a licensed veterinarian is exempt
                       under the particular facts before it. ...........................................11
                           The statutory framework governing the Board .........................11

                           The exemption...........................................................................12



                                                           ii
                  B.    Dr. Jefferson’s jurisdictional argument, if correct, would
                        create an absurd result which the Legislature never intended. .17
                  C.    Dr. Jefferson’s arguments on the merits are irrelevant to
                        the issues to be decided in this appeal. .....................................18

          II.     THE ACTIONS OF THE BOARD’S EXECUTIVE DIRECTION
                  WERE NOT ULTRA VIRES. ..........................................................19

         III.     EXHAUSTION OF ADMINISTRATIVE REMEDIES IS NOT
                  A MATERIAL ISSUE IN THIS APPEAL. .....................................23
         IV.      DR. JEFFERSON’S CLAIMS ARE NOT RIPE BECAUSE
                  THE BOARD HAS NOT TAKEN FINAL ACTION. .....................25
         V.       THE TRIAL COURT CORRECTLY DENIED DR.
                  JEFFERSON’S REUEST FOR MANDAMUS RELIEF. ................29
         VI.      THE TRIAL COURT’S DECLARATIONS REGARDING
                  OTHER LAWS OUTSIDE THE ACT WERE BEYOND THE
                  SCOPE OF RELIEF REQUESTED BY THE PARTIES. ...............31
CONCLUSION AND PRAYER .............................................................................32

CERTIFICATE OF COMPLIANCE .......................................................................34

CERTIFICATE OF SERVICE ................................................................................34




                                                   iii
                                     INDEX OF AUTHORITIES

Cases
Abbott Labs. v. Gardner, 387 U.S. 136 (1967)........................................................27

Am. Southwest Ins. Managers, Inc. v. Tex. Dep’t of Ins., No. 03-10-00073-CV,
 2010 WL 4053726 at *4 (Tex. App.—Austin Oct. 15, 2010, no pet.) .................26
Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161 (Tex. App.—
 Austin 2013, no pet.) .............................................................................................19
Blue Cross Blue Shield of Tex. v. Duenez, 201 S.W.3d 674, 675 (Tex. 2006)........14

Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ........................................14

Camarena v. Tex. Emp’t Comm’n, 754 S.W.2d 149 (Tex. 1988) ...........................27

City Council of Austin v. Save Our Springs Coal., 828 S.W.2d 340
 (Tex. App.—Austin 1992, no writ) ................................................................ 10, 29

City of Coahoma v. Pub. Util. Comm’n of Tex., 626 S.W.2d 488 (Tex. 1981) .......16

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ......................................19

City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) ................................20

City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) ......................................18

City of Sherman v. Pub. Util. Comm’n of Tex, 643 S.W.2d 681 (Tex. 1983) .........16

City of San Antonio ex rel. City Serv. Pub. Bd. v. Bastrop Cent.
  Appraisal Dist., 275 S.W.3d 919 (Tex. App.—Austin 2009 pet. dism’d) .......... 29

Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex., 294 S.W.3d 276
 (Tex. App—Austin, 2009, no pet.) .......................................................................21

Hawkins v. Cmty. Health Choice, Inc., 127 S.W.3d 322 (Tex. App.—
 Austin 2004, no pet.) .............................................................................................15


                                                         iv
Hendee v. Dewhurst, 228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied)......20

In re Columbia Med. Ctr. of Las Colinas, L.P., 290 S.W.3d 204 (Tex. 2009) ....... 29

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004)...............................30

Johnson v. State, No. 03-08-00667-CV, 2009 WL 2195585 (Tex. App.—
  Austin July 24, 2009, no pet.) ...............................................................................26

No. Alamo Water Supply Corp. v. Dep’t of Health, 839 S.W.2d 455
 (Tex. App.—Austin 1992, writ denied) ................................................................21

Patterson v. Planned Parenthood of Houston and Se. Tex., Inc.,
 971 S.W.2d 439 (Tex. 1998) .......................................................................... 25, 27

R.R. Comm’n of Tex. v. CenterPoint Energy Res. Corp., No. 03-13-00533-CV,
 2014 WL 4058727, at *4 (Tex. App.—Austin Aug. 14, 2014, no pet.) ........ 27, 28

Rains v. Simpson, 50 Tex. 495, 1878 WL 9285 at *7 (1878) ..................................20

Rea v. State, 297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.) ..........................26

Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011) ..................................................25

Sexton v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129 (Tex. App.—Austin
 1986, writ ref'd n.r.e.) ............................................................................................13

State v. Holland, 221 S.W.3d 639 (Tex. 2007)........................................................24

S.W. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578 (Tex. 2015) ..................................20
Tara Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564 (Tex. App.—
 Houston [14th Dist.] 2009, pet. denied) ................................................................15

Tex. Air Control Bd. v. Travis Cnty., 502 S.W.2d 213 (Tex. Civ. App.—
 Austin 1973, no writ) ............................................................................................26

Tex. Court Reporters Certification Bd. v. Esquire Deposition
 Servs., L.L.C., 240 S.W.3d 79 (Tex. App.—Austin 2007, no pet.) ............... 12, 14


                                                           v
Tex. Dep’t of Human Servs. v. Christian Care Centers, 826 S.W.2d 715
 (Tex. App.—Austin 1992, writ denied) ................................................................13

Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..........24

Tex. Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727
 (Tex. App.—Austin 1999, no pet.) .......................................................................18

Tex. Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691
 (Tex. App.—Austin 2011, no pet.) .......................................................................20

Tex. State Bd. of Exam’rs in Optometry v. Carp, 343 S.W.2d 242 (Tex. 1961) .....15
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000) ....................... 25, 26


Statutes

Tex. Civ. Prac. & Rem. Code § 37.001 .....................................................................7

Tex. Gov’t Code § 2001.038......................................................................................7

Tex. Gov’t Code § 2001.171....................................................................................28

Tex. Gov’t Code § 2001.174......................................................................................3

Tex. Gov’t Code § 801.004(1) ......................................................................... passim

Tex. Occ. Code § 801.151 .......................................................................................11

Tex. Occ. Code § 801.151(c)(1) ....................................................................... 11, 21

Tex. Occ. Code § 801.158(a)(2) ..............................................................................22

Tex. Occ. Code §§ 801.203, .204 ..................................................................... 17, 21

Tex. Occ. Code §§ 801.204, .205 ..................................................................... 17, 21

Tex. Occ. Code § 801.2055 .....................................................................................22


                                                       vi
Tex. Occ. Code § 801.307 .......................................................................................23

Tex. Occ. Code § 801.359 .......................................................................................23

Tex. Occ. Code § 801.402(3) ...................................................................................23

Tex. Occ. Code § 801.402(4) ...................................................................................23

Tex. Occ. Code § 801.402(6), (13) ..........................................................................13

Tex. Occ. Code § 801.402(14) .................................................................................23

Tex. Occ. Code §§ 801.402(4), (6), (12), (13), (16) ................................................11

Tex. Occ. Code § 801.403 .......................................................................................23

Tex. Occ. Code § 801.405 .......................................................................................23

Tex. Occ. Code § 801.408(c) ...................................................................................22

Tex. Occ. Code § 801.453 .......................................................................................22

Tex. Occ. Code § 801.455(a)-(b) .............................................................................22

Tex. Occ. Code § 801.456(a) ...................................................................... 12, 13, 18

Tex. Occ. Code § 801.456(a)(2) ..............................................................................27


Rules

Tex. R. App. P. 38.1(g) ..............................................................................................5




                                                         vii
                    RECORD AND PARTY REFERENCES

The clerk’s record will be referred to as “CR ____.”

The reporter’s record will be referred to as “RR, Vol. ___.”

Appellants/Cross-Appellees, the Texas State Board of Veterinary Medical
Examiners, and Nicole Oria in Her Official Capacity as Executive Director, will be
collectively referred to as the “Board” unless otherwise designated.

Appellant/Cross-Appellee Nicole Oria, Executive Director of the Board, will be
referred to as “Ms. Oria.”

Appellee/Cross-Appellant, Ellen Jefferson, D.V.M., will be referred to as
“Dr. Jefferson.”

The Appendix and tabs will be referred to as “App. Tab ___.”




                                        viii
                          STATEMENT OF THE CASE

      Because this cross-appeal is limited to the issue of whether the trial court had

subject matter jurisdiction, and because there are no disputed jurisdictional facts, the

Board has combined its statement of the case with its statement of facts. See infra.




                                          ix
           CONDITIONAL REQUEST FOR ORAL ARGUMENT

      The issues related to the jurisdictional issues in this case are purely legal in

nature, and the Board therefore does not believe that oral argument would assist the

Court with respect to those issues. However, the Board reserves the right to oral

argument should it be granted.




                                          x
                    ISSUES PRESENTED FOR REVIEW

1.   Does the Texas Veterinary Licensing Act (“Act”) afford the Board exclusive
     jurisdiction to determine whether or not Dr. Jefferson is exempt from that act?

2.   Were the actions of the Board’s Executive Director ultra vires, given that she
     was undertaking her statutory duty to investigate and, if necessary, prosecute
     complaints against Board licensees?

3.   Are Dr. Jefferson’s claims ripe for review?

4.   Did the trial court err in denying Dr. Jefferson’s request for mandamus relief?




                                        xi
                          NO. 03-14-00774-CV
         ____________________________________________________

                  IN THE THIRD COURT OF APPEALS
                          AT AUSTIN, TEXAS
         ____________________________________________________

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS, and
    NICOLE ORIA, in her Official Capacity as Executive Director
                                         Appellants/Cross-Appellees,
                               v.

                      ELLEN JEFFERSON, D.V.M.,
                                           Appellee/Cross-Appellant.
         ____________________________________________________

  On Appeal from the 127th Judicial District Court of Travis County, Texas
                      Cause No. D-1-GN-14-000287
                The Honorable Gisela D. Triana presiding
        _________________________________________________

     BRIEF OF CROSS-APPELLEES TEXAS STATE BOARD OF
  VETERINARY MEDICAL EXAMINERS AND NICOLE ORIA, IN HER
        OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR
      ____________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Cross-Appellees, the Texas State Board of Veterinary Medical Examiners,

and Nicole Oria, in Her Official Capacity as Executive Director (hereinafter

collective referred to as the “Board” unless otherwise designated), by and through

the Office of the Attorney General of Texas and the undersigned Assistant Attorney

General, submit the following brief in the captioned appeal.
                                 INTRODUCTION

What this appeal is and is not about:

      This appeal is limited to the legal issue of whether the Board which has subject

matter jurisdiction to determine whether Dr. Jefferson is exempt from the Act with

respect to her care and treatment of Starlight.

      This appeal is not about whether or not Dr. Jefferson is in fact exempt.

Background:

      This case originates from the death of a German Shepherd dog (“Starlight”),

which the Board contends resulted from Dr. Jefferson’s violations of the Act and

related Board rules. Dr. Jefferson is attempting to circumvent the administrative law

process by requesting court intervention in an ongoing enforcement proceeding. In

fact, the parties have already tried the issue of whether or not Dr. Jefferson is exempt

from the Act with respect to her treatment of the animal in question at the State

Office of Administrative Hearings (“SOAH”). App. Tab 1. The Administrative Law

Judge (“ALJ”) has issued a preliminary determination that Dr. Jefferson is exempt.

Id. There are two other issues which remain to be tried at SOAH, those being an

alleged mis-handling of medication and failure to cooperate with Board staff in its

investigation. Id. at 16. Further, the SOAH proceeding has been referred to

mediation with the agreement of Dr. Jefferson. App. Tab 2. It is therefore possible

that all of the issues related to Dr. Jefferson’s care and treatment of the subject

                                           2
animal could be settled. If the issues are not settled, Dr. Jefferson would have the

right to judicial review of any discipline which could be imposed in the Board’s final

order. Tex. Gov’t Code § 2001.174. Further, even if this Court were to reverse the

trial court’s decision to grant the Board’s plea, the case would have to be remanded

to the trial court for the entry of a judgment based on the facts developed at trial. In

that event, the parties would have the right to submit proposed findings of fact and

conclusions of law, many of which would undoubtedly be disputed. That would add

to the time and expense of an ultimate resolution of all of the issues. The losing

party would then have to right to appeal the trial court’s decision on whether Dr.

Jefferson is exempt to this Court. Yet, Dr. Jefferson steadfastly insists on pursuing

this appeal in the face of these facts, including her repeated conflation of the issue

of subject matter jurisdiction with the issue of whether or not she is in fact exempt.

The latter issue is simply not before this Court.

      That all said, no one questions Dr. Jefferson’s love for animals and her desire

to reduce unwanted euthanasia. That concern is certainly shared by the members of

the Board and Board staff. In fact, some Board members themselves provide

veterinary care at shelters and for rescue organizations groups from time to time. It

would be very surprising if anyone associated with this case (including counsel for

all parties) did not share the same concern.        However, while Dr. Jefferson’s

background and work in the no-kill movement is admirable, it remains that she is

                                           3
subject to the Board’s statutory duty to protect the public from the unsafe practice

of veterinary medicine. That includes the Boards statutory duty to determine in the

first instance whether Dr. Jefferson is exempt from the Act under the facts developed

through Board Staff’s investigation and as determined by the ALJ in a contested case

hearing (which, again, has already occurred).




                                         4
         STATEMENT OF THE CASE AND STATEMENT OF FACTS

       Dr. Jefferson’s “Statement of Facts” is replete with impermissible argument.

Jefferson Br. at 4-19. See Tex. R. App. P. 38.1(g). It also contains facts not pertinent

to the issues in this appeal, particularly those related to the substantive (not

jurisdictional) issue of whether she is in fact exempt from the Act. This includes

her involvement in the “no kill” movement. While some background about San

Antonio Pets Alive (“SAPA”) and Dr. Jefferson’s involvement with SAPA is

helpful, the majority of these alleged facts have nothing to do with subject matter

jurisdiction.1

       Dr. Jefferson also argues irrelevant issues, such as her contention that the

Board somehow “agreed” that it didn’t have subject matter jurisdiction even though

subject matter jurisdiction cannot be waived, her being “forced to sue,” and her claim

that the Legislature “is not happy with the (Board’s) shelter prosecutions.” Id.

Statement of Facts Relevant to the Jurisdictional Issue

       The facts that are actually pertinent to the jurisdictional issue in this appeal

are as follows:




1
 Jefferson states in her brief that the Board’s plea to the jurisdiction was carried with the trial on
the merits by agreement of the parties. Jefferson Br. at xiii. She fails to mention, however, that
the Board later requested a pre-trial ruling on its plea and a continuance of the trial date for a
number of reasons, most notably that Dr. Jefferson expanded her allegations against the Board
near the date of the trial. CR 613-617.

                                                  5
      1.     Dr. Jefferson holds a license to practice veterinary medicine in Texas.

CR 5, ¶ 1.

      2.     Dr. Jefferson is the founder and chief executive officer of SAPA, a “no-

kill” animal shelter located in San Antonio, Texas. Id.

      3.     On November 23, 2012, the Board received a complaint from a foster

care provider about Dr. Jefferson’s conduct related to a three-year old female

German Shepherd named Starlight, who had been fostered out by SAPA. CR 56.

The complaint asserted several allegations about Dr. Jefferson’s diagnoses of

Starlight. CR 56-61. The complaint also alleged that drugs Dr. Jefferson prescribed

for Starlight’s care were not properly administered, but were instead left on a SAPA

volunteer’s front porch without proper labeling. CR 59.

      4.     After an informal settlement conference, review by the Board’s

enforcement committee, and written notice to Dr. Jefferson, the Board filed a notice

of hearing at SOAH, alleging violations of Chapter 801 of the Texas Occupations

Code (the “Act”) and Board rules. CR 53-63. In particular, the Board alleged that

Dr. Jefferson:

•     failed to establish a veterinary client patient relationship prior to diagnosing
      and treating Starlight and prior to prescribing and dispensing medication;

•     failed to treat Starlight with the required minimum standard of care;

•     failed to maintain proper patient records;


                                          6
•     failed to properly label medication; and

•     engaged in a pattern of acts that indicate consistent malpractice, negligence,
      or incompetence in the practice of veterinary medicine.

Id.

      5.     Instead of proceeding with the Starlight complaint before SOAH,

Dr. Jefferson sued the Board in the trial court, asserting claims for declaratory relief

under the Texas Uniform Declaratory Judgments Act (“UDJA”), as well as for

injunctive and mandamus relief. CR 4. See Tex. Civ. Prac. & Rem. Code §§ 37.001,

et seq. She later filed an amended petition wherein she challenged several Board

rules under the Texas Administrative Procedure Act (“APA”), including the two

rules in question in this proceeding. CR 216-223. See Tex. Gov’t Code § 2001.038.

      6.     The Board filed a plea to the jurisdiction, which was carried with the

case to trial. CR 67.

      7.     After a bench trial held on August 4, 2014, the district court issued a

final judgment which granted the Board’s plea with respect to Dr. Jefferson’s UDJA

claims, and denied the Board’s plea regarding her rule challenge. CR 855. The court

ruled that it had jurisdiction over Dr. Jefferson’s rule challenge and went on to

uphold the validity of the Board rules in question, with the exception of Board Rules

573.72 and 573.80(2). Id. The Board appealed that decision and filed its initial brief

on the rule-challenge issue on July 8, 2015.


                                           7
      8.     After the district court entered its judgment determining that it lacked

jurisdiction over the exemption issue, and after the parties filed their respective

cross-appeals, Dr. Jefferson and Board Staff tried the exemption issue at SOAH.

App. Tab 1. The ALJ then issued a preliminary determination that, based on the

facts elicited at the contested case trial, Dr. Jefferson is in fact exempt. Id. The two

remaining issue involving Dr. Jefferson’s care and treatment of Starlight have not

yet been tried, and all of the matters pending at SOAH have been referred to

mediation. App. Tab 2.




                                           8
                       SUMMARY OF THE ARGUMENT

      The Board has exclusive jurisdiction to determine whether or not the

exemption contained in § 801.004(1) of the Act applies to Dr. Jefferson, a licensed

veterinarian. The legislative intent supporting this fact is clearly established in the

statutory scheme outlined in the Act. Dr. Jefferson’s entire jurisdictional argument

is based on her mistaken premise that she can simply plead her way out of the

Board’s exclusive jurisdiction by just claiming that she’s exempt. To the contrary,

Dr. Jefferson cannot plead herself out of the Board’s exclusive jurisdiction to

determine the applicability of the exemption to her.

      Dr. Jefferson’s ultra vires claim is also without merit. Both the Act and Board

rules demonstrate that nothing Ms. Oria did with respect to determining

Dr. Jefferson’s exemption was ultra vires. In investigating the complaint against

Dr. Jefferson and referring it for a contested case hearing, Ms. Oria acted wholly

within her authority under the Act. Dr. Jefferson cannot credibly refute the fact that

Ms. Oria’s actions were discretionary and wholly authorized under the statutory

scheme contained in the act. Even if they were not, the fact that she may have made

the “wrong call” on a matter does not rise to the level of an ultra vires action.

      In addition, because the Board has exclusive jurisdiction, it is apparent that

Dr. Jefferson’s claims are not ripe for review. The facts related to the complaint

against Dr. Jefferson involves facts which have not been finally resolved through the

                                           9
contested case process. The Board certainly has not issued any final order in any

matter involving Dr. Jefferson, and will not do so until after the administrative law

judge issues a proposal for decision.

      Finally, Dr. Jefferson’s mandamus claim is also without merit. Mandamus

will lie only to compel a governmental official to perform a ministerial act, one for

which “the law clearly spells out the duty to be performed by the official with

sufficient certainty that nothing is left to the exercise of discretion.” See City Council

of Austin v. Save Our Springs Coal., 828 S.W.2d 340, 342-43 (Tex. App.—Austin

1992, no writ) (holding that mandamus would not lie where the city had discretion

to act). Here, Dr. Jefferson has not and cannot show that the Board has a ministerial

duty to dismiss the contested case or otherwise decline to investigate the complaints

against her. Further, the benefits of mandamus relief are indeed outweighed by the

detriments. Judicial interference with the Board’s legislatively-granted authority to

investigate and prosecute complaints would have a negative impact on its ability to

protect the public by insuring that a vet who claims to be exempt from the Act is in

fact correct.




                                           10
                                   ARGUMENT

I.    THE TRIAL COURT’S JUDGMENT THAT IT LACKED SUBJECT
      MATTER JURISDICTION WAS CORRECT.
A.    The Act vests the Board with exclusive jurisdiction to determine whether
      or not a licensed veterinarian is exempt under the particular facts before
      it.

The statutory framework governing the Board

      The Board is the state agency empowered to regulate the practice of veterinary

medicine in Texas. Tex. Occ. Code § 801.151. This includes the broad authority to

adopt rules to protect the public. Tex. Occ. Code § 801.151(c)(1). Among the

Board’s specific duties are the authority to discipline license holders for, among

other things, engaging in dishonest or illegal practices in, or connected with, the

practice of veterinary medicine or the practice of equine dentistry; engaging

practices or conduct that violates the Board’s rules of professional conduct;

performing or prescribing unnecessary or unauthorized treatment; ordering a

prescription drug or controlled substance for the treatment of an animal without first

establishing a veterinarian-client-patient relationship; and committing gross

malpractice or a pattern of acts that indicate consistent malpractice, negligence, or

incompetence in the practice of veterinary medicine or the practice of equine

dentistry. Tex. Occ. Code §§ 801.402(4), (6), (12), (13), (16).




                                         11
The exemption

      The exemption which is the subject of this appeal provides:

      This chapter does not apply to: 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

Tex. Gov’t Code § 801.004(1).

      The central issue in this appeal is whether the Board, under the statutory

framework established in the Act, has the exclusive jurisdiction to make the fact-

based determination of whether a vet who claims to be exempt is in fact exempt.

Whether the Board has exclusive jurisdiction is a legal issue to be determined from

an examination of the relevant statutory scheme contained in the Act. Tex. Court

Reporters Certification Bd. v. Esquire Deposition Servs., L.L.C., 240 S.W.3d 79, 89

(Tex. App.—Austin 2007, no pet.).

      The Act in fact demonstrates that the Board indeed has the exclusive authority

to determine, through the procedures set forth in the Administrative Procedure Act

(“APA”), whether professional discipline of a licensee such as Dr. Jefferson is

appropriate. See, e.g., Tex. Occ. Code § 801.456(a), which provides: “[b]ased on

the findings of fact, conclusions of law, and proposal for a decision under Section

801.455(c), the board by order may determine that: (1) a violation has occurred and

impose an administrative penalty; or (2) a violation did not occur.” Tex. Occ. Code

                                         12
§ 801.456(a). More specifically, the Board is charged with determining whether

disciplinary action is appropriate if a person “engages in practices or conduct that

violates the board’s rules of professional conduct” and “orders a prescription drug

or controlled substance for the treatment of an animal without first establishing a

veterinarian-client-patient relationship.” Tex. Occ. Code § 801.402(6), (13). Given

this statutory framework, the Legislature could not have intended that a veterinarian

subject to a complaint can escape these provisions simply by claiming to be exempt

or by presenting one-sided evidence to the Board. Dr. Jefferson failed to provide

the Board with any evidence of her meeting the exemption save from her word until

after she filed her case in District Court.

      Further, contrary to Dr. Jefferson’s argument, it is not necessary that an

agency’s enabling act explicitly refer to the agency’s jurisdictional enforcement

authority:

      Lack of express authority for a particular act of an agency does not
      mean the agency has no authority for that act. An agency may have
      implied authority to take an action or promulgate a rule even though
      such authority might not be expressly enumerated in its enabling
      statute. Indeed, under a general grant of authority, an agency has all
      the implied authority reasonably necessary to accomplish a delegated
      purpose.

Tex. Dep’t of Human Servs. v. Christian Care Centers, 826 S.W.2d 715, 719 (Tex.

App.—Austin 1992, writ denied) (emphasis added). See also Sexton v. Mount Olivet

Cemetery Ass’n, 720 S.W.2d 129, 137 (Tex. App.—Austin 1986, writ ref'd n.r.e.).

                                              13
The Board believes that the statutory framework set forth in the Act clearly evinces

a legislative intent that licensed veterinarians who claim to be exempt are

accountable for such a claim through the fact-finding process established in the

APA.

       Case law also supports the Board’s exclusive jurisdiction. In Esquire, Esquire

Depositions Services alleged that the Court Reporters Certification Board (“CRCB”)

sought to take disciplinary action that was beyond its statutory authority (just as Dr.

Jefferson does in this case). 240 S.W.3d at 88. The court rejected this contention

and held that the board had exclusive jurisdiction to determine whether Esquire was

subject to discipline after the development of facts at the administrative level, and

thus the case was not ripe for judicial review. 240 S.W.3d at 93. Just as the court

in Esquire held that the CRCB could determine whether discipline was appropriate,

the Board in this matter has exclusive jurisdiction to make the same determination

(through an initial threshold decision on whether a vet is in fact exempt from the

Act). See also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 212 (Tex. 2002) (the

Texas Supreme Court held that the Texas Motor Vehicle Board had exclusive

jurisdiction over the issues and claims governed by the Texas Motor Vehicle

Commission Code); Blue Cross Blue Shield of Tex. v. Duenez, 201 S.W.3d 674, 675

(Tex. 2006) (per curiam).




                                          14
      In Hawkins v. Cmty. Health Choice, Inc., 127 S.W.3d 322 (Tex. App.—Austin

2004, no pet.), the court held that even a simple matter such as whether there was

pre-suit notice was provided is a question of fact that must be referred to SOAH. Id.

at 327. Indeed, SOAH is empowered to determine adjudicative facts, which are

those that answer “who, what, when, where and how” and are “roughly the kind of

facts that go to a jury in a jury case.” Id. at 325-26.

      The Texas Supreme Court has also recognized and affirmed a state agency’s

duty to investigate complaints and enforce the provisions of its enabling act without

judicial interference:

      There is a vast difference in a court’s reviewing a final order of
      an administrative board and in prohibiting such board from
      making any order or from prosecuting an inquiry to ascertain
      whether any order will be necessary. That Courts are without
      authority to thus interfere with commissions and administrative
      departments of the government in the lawful exercise of duties
      and functions committed to them by law is well settled.

Tex. State Bd. of Exam’rs in Optometry v. Carp, 343 S.W.2d 242, 246 (Tex. 1961).

      The cases cited by Dr. Jefferson are distinguishable. The issue in Tara

Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564 (Tex. App.—Houston [14th

Dist.] 2009, pet. denied), was whether the Legislature expressly exempted from the

agency’s authority the “power or jurisdiction” to regulate utility rates. 282 S.W.3d

at 573. Dr. Jefferson cannot dispute the fact that there is nothing in the Act which




                                           15
expressly divests the Board of jurisdiction to determine whether one of its own

licensees is exempt under § 801.004(1) of the Act.

      Similarly, in City of Sherman v. Pub. Util. Comm’n of Tex, 643 S.W.2d 681

(Tex. 1983), the court noted that the “legislative intent to exclude municipally-

owned utilities from the Act’s jurisdictional provisions is clear.” 643 S.W.2d at 684

(emphasis added). In making that determination, the court referred to the Supreme

Court’s discussion of the bedrock principles underlying statutory construction, many

of which are pertinent in this case:

      No inflexible rule can be announced for the construction of statutes.
      However, the dominant rule to be observed is to give effect to the
      intention of the Legislature. Generally the intent and meaning is
      obtained primarily from the language of the statute. In arriving at the
      intent and purpose of the law, it is proper to consider the history of the
      subject-matter involved, the end to be attained, the mischief to be
      remedied, and the purposes to be accomplished.

643 S.W.2d 681, quoting City of Coahoma v. Pub. Util. Comm’n of Tex., 626 S.W.2d

488, 490 (Tex. 1981).

      In this case, the “history of the subject matter involved” is the Board’s long-

standing jurisdiction to license and regulate Texas veterinarians. The “end (and

purpose) to be attained” is a determination of whether or not a vet who claims to be

exempt is in fact exempt under the particular facts of each case. More broadly, the

ultimate end to be attained is the protection of the public from the unsafe and

unregulated practice of veterinary medicine. The “mischief to be remedied” is

                                         16
violations of the Act which result in harm to the public. These canons of statutory

construction demonstrate the Legislature’s intent that the Board has exclusive

jurisdiction to determine in the first instance whether or not a vet is exempt from the

Act. Otherwise, any vet could simply claim to be exempt without any investigation

of the facts underlying such a claim. That would lead to the unregulated practice of

veterinary medicine, a result which the Legislature certainly did not intend.

       It was plainly within the Board’s implied authority under the Act to exercise

jurisdiction over Dr. Jefferson with respect to the complaints about which it had a

statutory duty to investigate and, if necessary, pursue to a contested case hearing.

B.     Dr. Jefferson’s jurisdictional argument, if correct, would create an
       absurd result which the Legislature never intended.

       Dr. Jefferson’s jurisdictional argument begs the question of what tribunal, if

any determines whether or not she is exempt under the Act. In her view, the Board

should have just taken her word that she fit into one or more of the exemption

categories without any investigation of any complaint as mandated by the Act, and

without providing the Board with any actual evidence and documentation. See Tex.

Occ. Code §§ 801.203, .204, .205. If that were true, any veterinarian could evade

the Act simply by just claiming to be exempt.2 That is an absurd result which is


2
 It should be noted that Dr. Jefferson claimed she was exempt because she was an employee of
SAPA. However, the SOAH ALJ found that she was in fact not an employee. App. Tab 1 at 12-
13. It wasn’t until closer to trial in district court that she changed her claim to say she was a
designated care taker and owner.

                                               17
nowhere contemplated under the Act or the APA. See City of Rockwall v. Hughes,

246 S.W.3d 621, 625 (Tex. 2008). The Legislature in fact established a statutory

framework by which the Board investigates complaints and, if necessary, refers them

to an impartial tribunal (SOAH) before which the specific facts of a case are

determined in a contested case hearing. Tex. Gov’t Code § 801.461(a).

      It is absurd to suggest that a vet can take him or herself out of the disciplinary

authority of the Board by just saying “because I said so.”

C.    Dr. Jefferson’s arguments on the merits are irrelevant to the issues to be
      decided in this appeal.

      Dr. Jefferson spends a great deal of time in her brief arguing the merits of the

exemption issue. Jefferson Br. at 44-52. While the issue of whether or not she is

exempt from the Act was tried, the trial court ultimately determined that it did not

have jurisdiction in the first instance. CR 855.

      In considering whether grant of a plea to the jurisdiction was proper, an

appellate court does not examine the merits of the case in its review of the grant or

denial of a plea to the jurisdiction. Tex. Dep’t of Transp. v. City of Sunset Valley, 8

S.W.3d 727, 730 (Tex. App.—Austin 1999, no pet.). As such, Dr. Jefferson’s




                                          18
argument related to whether or not she was in fact exempt from the Act are

irrelevant.3

II.    THE ACTIONS OF THE BOARD’S EXECUTIVE DIRECTION WERE
       NOT ULTRA VIRES.

       In order to come within the ultra vires exception of the UDJA, a plaintiff must

plead and prove that a government officer acted without authority and that the suit

does not seek to control state action. Bacon v. Tex. Historical Comm’n, 411 S.W.3d

161, 173 (Tex. App.—Austin 2013, no pet.). In addition, “[A] suit must not

complain of a government officer’s exercise of discretion, but rather must allege,

and ultimately prove, that the officer acted without legal authority or failed to

perform a purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372

(Tex. 2009).




3
 As part of her merits argument, Dr. Jefferson claims that language in a Board publication proves
that she did not intend to violate the Act. Jefferson Br. at 51-52. In doing so, she continues her
obfuscation of the issues in this appeal. Aside from the fact that the merits are not at issue here
and that, in any event, subject matter jurisdiction cannot be waived, the issue is not about SAPA’s
ownership of any animal. The quoted language refers to a shelter being the owner of an animal as
a general principle. The Board in fact stipulated to that fact. The merits issue is instead whether
Dr. Jefferson herself as a licensed vet fits into one or more of the categories in the exemption
statute, and, if so, whether she established any of those categories with an intent to evade the Act.
Tex. Occ. Code § 801.004(1). In addition, the Board certainly did not state that it did not have
jurisdiction over whether anyone is an owner of an animal; that issue would of course depend on
the facts of each case. Furthermore, the evidence at trial was not “uncontroverted” on the issue of
whether Dr. Jefferson is exempt. The Board presented documentary evidence at trial which it
believed demonstrated that Dr. Jefferson did in fact intend to evade the Act. See, e.g.,, RR, Vol.
II at 114, 170, 198.


                                                19
      Discretionary acts are those which “require the exercise of judgment and

personal deliberation.” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex.

2015). Ministerial acts, by contrast, acts are those “where the law prescribes and

defines the duties to be performed with such precision and certainty as to leave

nothing to the exercise of discretion or judgment.” City of Lancaster v. Chambers,

883 S.W.2d 650, 654 (Tex. 1994) (quoting Rains v. Simpson, 50 Tex. 495, 1878 WL

9285 at *7 (1878)) (emphasis added).

      In determining whether an act is discretionary or ministerial, a court (1)

construes the relevant statutory provisions; (2) applies them to the alleged facts; and

(3) determines whether the facts constitute acts beyond the official’s authority or

establish the failure to perform a purely ministerial act. Tex. Dep’t of Transp. v.

Sunset Transp., Inc., 357 S.W.3d 691, 701-02 (Tex. App.—Austin 2011, no pet.);

Hendee v. Dewhurst, 228 S.W.3d 354, 368-369 (Tex. App.—Austin 2007, pet.

denied). The application of this analysis plainly shows that Ms. Oria’s acts were

discretionary and not ministerial.

      It was certainly not ultra vires for Ms. Oria and Board Staff to have initiated

and conducted investigations and an enforcement action against Dr. Jefferson’s

alleged actions with regard to the complaints submitted to the Board. Ms. Oria in

fact had the express statutory authorization under the Act to do so. For example, the

Act directs the Board to adopt rules to “protect the public.” Tex. Occ. Code

                                          20
§ 801.151(c)(1). In addition, the Board has other statutory duties as discussed below.

Part and parcel of those duties is the determination of whether a licensed veterinarian

such as Dr. Jefferson is exempt under § 801.004(1) of the Act.

      There can be no question that Ms. Oria’s actions in receiving and investigating

the complaint against Dr. Jefferson were not ultra vires because they were, by their

very nature, discretionary and not ministerial. Complaints against veterinarians are

by the very nature fact-specific, and a determination of whether or not they merit

further investigation is obviously discretionary. It is also important to note that, as

Texas courts have repeatedly held, “[t]he fact that the [agency] might decide

‘wrongly’ in the eyes of an opposing party does not vitiate the agency’s jurisdiction

to make an initial decision.” Coastal Habitat Alliance v. Pub. Util. Comm’n of Tex.,

294 S.W.3d 276, 285 (Tex. App—Austin, 2009, no pet.) (citing No. Alamo Water

Supply Corp. v. Dep’t of Health, 839 S.W.2d 455, 459 (Tex. App.—Austin 1992,

writ denied)).

      The following clearly demonstrates that actions of the Board, and Ms. Oria on

the Board’s behalf, were discretionary under the Act and not ultra vires:

   • The Board received complaints against Dr. Jefferson in accordance with Tex.

      Occ. Code §§ 801.203, .204. See, e.g., CR 630-641; 644-652.

   • The Board investigated the complaints in accordance with Tex. Occ. Code

      §§ 801.204, .205. Id.

                                          21
   • After informal settlement conferences (see § 801.2055), the Board’s

      enforcement committee recommended enforcement action pursuant to Tex.

      Occ. Code § 801.408(c).

   • Board staff provided Dr. Jefferson written notices that the Board’s

      enforcement committee had recommended enforcement action, in accordance

      with Tex. Occ. Code § 801.453 (requiring notice of committee

      recommendation). Id.

   • Because Dr. Jefferson did not timely respond to the Starlight notice, the

      Executive Director referred the matter to SOAH for a hearing. Tex. Occ. Code

      § 801.455(a)-(b) (when a party fails to respond to a notice of administrative

      action, “the executive director shall set a hearing and give notice of the hearing

      to the person” and the hearing shall be held at SOAH).

   • In addition, the Board may request and, if necessary, compel by subpoena “the

      production for inspection or copying of … documents, and other evidence

      relevant to an investigation of an alleged violation of this chapter.” Tex. Occ.

      Code § 801.158(a)(2) (emphasis added).

      In light of the foregoing, it is indisputable that the Board and Ms. Oria have

authority to accept and investigate complaints. It is equally clear that they have a

duty to ensure that complaints are not dismissed without appropriate consideration—

all as shown by the statutory authority cited above. Part and parcel of that duty is

                                          22
determining—based on the facts of each case—whether the exemption in §

801.004(1) in fact applies to a Board licensee.4

       Dr. Jefferson’s allegations that Ms. Oria’s actions were ultra vires is wholly

without merit.

III.   EXHAUSTION OF ADMINISTRATIVE REMEDIES IS NOT A
       MATERIAL ISSUE IN THIS APPEAL.

       Dr. Jefferson spends a considerable amount of space in her brief arguing that

the exhaustion-of-administrative remedies doctrine is inapplicable to her. Jefferson

Br. at 23-40. While the trial court’s judgment does refer to Jefferson’s failure to

exhaust (AR 855), it is nevertheless implicit that the court had determined in the first

instance that it lacked subject matter jurisdiction. The grant of the Board’s plea was

in a preceding sentence and can reasonably be read as a threshold determination that

the Board does in fact have exclusive jurisdiction over the exemption determination.

Id. Moreover, even if the jurisdictional ruling in the judgment could somehow be



4
  In addition, the Board must have the ability to investigate complaints against Dr. Jefferson in
order to take administrative action in circumstances which in some instances are unrelated to her
treatment of animals. For instance, Board may take action for chronic or habitual intoxication,
chemical dependency, or addiction to drugs (Tex Occ. Code § 801.402(3)); mental incapacity (Tex.
Occ. Code § 801.405); insufficient continuing education (Tex. Occ. Code § 801.307); failure to
keep proper records of controlled substances (Tex. Occ. Code § 801.359); engaging in dishonest
or illegal practices in, or connected with, the practice of veterinary medicine (Tex. Occ. Code §
801.402(4)); failure to report disease (Tex. Occ. Code § 801.403); and refusal to admit a board
representative to inspect client and patient records and business premises during regular business
hours (Tex. Occ. Code § 801.402(14)).



                                               23
read to be based exclusively on Jefferson’s failure to exhaust, this Court may

nonetheless affirm on any basis. It is well-settled that an appellate court’s review of

a plea challenging a trial court’s jurisdiction is a de novo legal determination. Tex.

Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007). That being the case, whether or not

Jefferson exhausted her administrative remedies is immaterial. The Board of course

believes, as discussed above, that it had exclusive subject matter jurisdiction. If this

Court affirms that part of the judgment, the exhaustion question is simply immaterial

because Jefferson would obviously have no choice but to submit to the Board’s

jurisdiction in order to defend her license (which, again, she is already doing). If

this Court on the other hand were to reverse the trial court’s jurisdictional

determination, the trial court then would enter a judgment on remand based on the

facts adduced at trial. Either way, exhaustion of administrative remedies is not




                                          24
    material to the Court’s determination of what tribunal has subject matter jurisdiction

to determine the applicability of the Act’s exemption provisions.5

IV.       DR. JEFFERSON’S CLAIMS ARE NOT RIPE BECAUSE THE
          BOARD HAS NOT TAKEN FINAL ACTION.

          While the trial court did not specifically mention ripeness as a ground for

granting the Board’s plea, the Board believes it is an alternative basis for affirming

the court’s decision since “[r]ipeness ‘is a threshold issue that implicates subject

matter jurisdiction ... [and] emphasizes the need for a concrete injury for a justiciable

claim to be presented.’” Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011),

quoting Patterson v. Planned Parenthood of Houston and Se. Tex., Inc., 971 S.W.2d

439 (Tex. 1998). The evaluation of ripeness requires a court to determine whether

the facts are sufficiently developed such that an injury has occurred or is likely to

occur, rather than being contingent or remote. Id. See also Waco Indep. Sch. Dist.

v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000). A claim is not ripe if it concerns



5
  While it is true that the exhaustion requirement does not apply when an agency acts outside the
scope of its authority, that is simply not the case here. As discussed above, the Act vests exclusive
jurisdiction in the Board to determine the applicability of the exemption in § 801.004(1). Further,
Ms. Oria acted wholly within the scope of her discretionary duties in investigating the complaint.
As for alleged “irreparable harm,” the evidence at trial was not uncontroverted as Dr. Jefferson
repeatedly asserts. Board counsel in fact cross-examined Dr. Jefferson, and she admitted that she
had taken on more animals than a veterinarian could handle, and further that SAPA in fact had
received more funding in recent years that allowed her to hire more vets. RR, Vol. II at 178-79.
It was in fact Dr. Jefferson herself who over-extended SAPA’s resources. This undermines her
claim that she is exempt from the exhaustion requirement because she and SAPA would suffer
“irreparable harm” solely as the result of the Board’s enforcement of the Act.


                                                25
uncertain or contingent future events that may not occur as anticipated or may not

occur at all. Waco Indep. Sch. Dist., supra, 22 S.W.3d at 852. “By focusing on

whether the plaintiff has a concrete injury, the ripeness doctrine allows courts to

avoid premature adjudication, and serves the constitutional interests in prohibiting

advisory opinions.” Id.

      The ripeness doctrine has been consistently applied by Texas courts to cases

such as this. See Rea v. State, 297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.)

(UDJA claim not ripe since there was no final agency decision); accord Johnson v.

State, No. 03-08-00667-CV, 2009 WL 2195585 (Tex. App.—Austin July 24, 2009,

no pet.) (mem. op.); Am. Southwest Ins. Managers, Inc. v. Tex. Dep’t of Ins., No. 03-

10-00073-CV, 2010 WL 4053726 at *4 (Tex. App.—Austin Oct. 15, 2010, no pet.);

Tex. Air Control Bd. v. Travis Cnty., 502 S.W.2d 213, 215 (Tex. Civ. App.—Austin

1973, no writ).

      In this case, Dr. Jefferson’s claims are not ripe for review for the simple reason

that the factual issues related to the Board’s allegations in the pending enforcement

proceeding have not been finally determined through a final Board order. The mere

fact that the Board has received a complaint and conducted an investigation does not

mean that Dr. Jefferson has suffered harm so as to give rise to a cognizable claim in

district court. The Board will not issue any final order until the conclusion of

Dr. Jefferson’s pending contested case hearing at SOAH. While Dr. Jefferson may

                                          26
face discipline, it is also possible she will not. Cf. Tex. Occ. Code § 801.456(a)(2)

(following SOAH hearing the Board may determine that no violation occurred).

Any judgment by this Court before the issuance of any final order from the Board

would be nothing more than an advisory opinion, which Texas courts have

consistently held are improper. See Patterson v. Planned Parenthood of Houston &

Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) (courts are not empowered to give

advisory opinions and this extends to cases that are not yet ripe); Camarena v. Tex.

Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (same).

      Dr. Jefferson’s proffered authority is distinguishable. In the CenterPoint case,

the court held that the subject utilities’ claims were not ripe because they had not

demonstrated that they “would suffer hardship if judicial review is withheld until

enforcement” of certain ordering paragraphs in Railroad Commission orders. R.R.

Comm’n of Tex. v. CenterPoint Energy Res. Corp., No. 03-13-00533-CV, 2014 WL

4058727, at *4 (Tex. App.—Austin Aug. 14, 2014, no pet.) (mem. op.). The court

noted that hardship is shown when the applicable statute 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). On this point, Dr. Jefferson claims that the “uncontroverted” evidence

at trial shows that her compliance with the Act and Board rules “would effectively

destroy San Antonio Pets Alive’s lifesaving efforts.” Jefferson Br. at 42. To the

                                         27
contrary, she has been free to operate SAPA throughout the course of this case and

the underlying administrative proceeding. Dr. Jefferson is presuming an outcome

that has not yet occurred. And again, she has already prevailed at SOAH on the main

issue, i.e., whether or not she is exempt from the Act. And she will have the right to

judicial review once the Board issues a final order on all of the issues. Tex. Gov’t

Code § 2001.171.

      It should also be noted that the CenterPoint case involved provisions in

Railroad Commission ordering paragraphs with established penalties for non-

compliance. The Board submits that being subject to final orders (with penalties)

is not the same as being subject to the statutory administrative process governing

licensees, and where no penalties have been imposed (and where it’s possible than

none will be).

      Dr. Jefferson’s position is no different than that of any other occupational

licensee facing discipline. Any licensee can claim that he or she would suffer “an

immediate and significant change in (his or her) conduct of their affairs” simply by

having to respond to a complaint and, if necessary, participating in a contested case

hearing. However, an occupational license is a privilege and not a right, and any

person requesting licensure does so with the full knowledge of the provisions in the

respective enabling acts. Vets such as Dr. Jefferson are or should be fully aware of

the provisions in the Act, including those pertaining to the Board’s jurisdiction to

                                         28
investigate and, if necessary, prosecute complaints. That includes being aware of

the possibility of enforcement when she established SAPA. Allowing a licensee to

escape the jurisdiction of its regulatory agency simply by claiming harm would

create an absurd result which the Legislature never intended.

V.    THE TRIAL COURT CORRECTLY DENIED DR. JEFFERSON’S
      REUEST FOR MANDAMUS RELIEF.

      It is well-settled that mandamus relief will lie only to compel a governmental

official to perform a ministerial act, one for which “the law clearly spells out the

duty to be performed by the official with sufficient certainty that nothing is left to

the exercise of discretion.”    Save Our Springs Coal., 828 S.W.2d at 342-43

(emphasis added) (holding that mandamus would not lie where the city had

discretion to act). Here, Dr. Jefferson has not and cannot show that the Act “clearly

spells out” any requirement that the Board simply ignore a complaint when a vet

simply claims to be exempt.

      Further, mandamus is an extraordinary remedy and is available only in limited

circumstances. City of San Antonio ex rel. City Serv. Pub. Bd. v. Bastrop Cent.

Appraisal Dist., 275 S.W.3d 919, 922-23 (Tex. App.—Austin 2009 pet. dism’d).

The remedy is only appropriate to correct a clear abuse of discretion or the violation

of a duty imposed by law when there is no adequate remedy at law. In re Columbia

Med. Ctr. of Las Colinas, L.P., 290 S.W.3d 204, 207 (Tex. 2009).


                                         29
      To use Dr. Jefferson’s quote from In re Prudential Ins. Co. of Am., 148

S.W.3d 124 (Tex. 2004), “[A] careful balance of jurisprudential considerations”

demonstrates that she in fact has an adequate remedy at law. The court in Prudential

provided guidance on this point:

      Mandamus review of significant rulings in exceptional cases may be
      essential to preserve important substantive and procedural rights from
      impairment or loss, allow the appellate courts to give needed and helpful
      direction to the law that would otherwise prove elusive in appeals from
      final judgments, and spare private parties and the public the time and
      money utterly wasted enduring eventual reversal of improperly
      conducted proceedings. An appellate remedy is “adequate” when any
      benefits to mandamus review are outweighed by the detriments. When
      the benefits outweigh the detriments, appellate courts must consider
      whether the appellate remedy is adequate.

148 S.W.3d at 135-136 (emphasis added).

      None of the considerations in the Prudential case are present here. The trial

court’s ruling that it lacked jurisdiction is not a significant ruling in an exceptional

case. It is in fact common and not “exceptional” that the Board reviews, investigates

and prosecute complaints under its enabling act. In addition, the trial court’s grant

of the Board’s plea was not such a “significant ruling” that would support mandamus

relief. It is not uncommon for governmental agencies and/or their officials to

challenge a trial court’s jurisdiction over a prematurely-filed lawsuit and for courts

to issue rulings on subject matter jurisdiction.




                                          30
      Furthermore, the benefits of mandamus relief are indeed outweighed by the

detriments. Id. Judicial interference with the Board’s investigation and prosecution

of complaints would have negatively impacted its ability to protect the public by

insuring that a vet who claims to be exempt from the Act is in fact correct. In

contrast, Dr. Jefferson’s adequate remedy at law, i.e., judicial review of a final Board

order, is in compliance with the Legislature’s intent as set forth in the Act and the

APA. Agencies such as the Board must have the ability in the first instance to

exercise jurisdiction over their licensees. If courts were allowed to intervene in that

process based simply on one vet’s claim to be exempt, those entire statutory schemes

would be turned on their head.

      Finally, Dr. Jefferson’s entire mandamus argument is based on the flawed

premised that Ms. Oria acted ultra vires. She in fact did not, as shown above.

      Dr. Jefferson’s mandamus claim is wholly without merit, and should be

dismissed for lack of jurisdiction.

VI.   THE TRIAL COURT’S DECLARATIONS REGARDING OTHER
      LAWS OUTSIDE THE ACT WERE BEYOND THE SCOPE OF
      RELIEF REQUESTED BY THE PARTIES.

      The Board agrees that the trial court’s declarations regarding its authority to

enforce other laws and its directive that the Board must enforce those laws “with

proper and due regard for the owner exemption” was beyond the scope of relief

requested by the parties. CR 856. The Board particularly disagrees with the trial

                                          31
court’s finding that it must take into account the owner exemption in enforcing other

laws. Id. The other laws—such as those pertaining to the handling of drugs,

cooperating with Board investigations, and continuing education—are independent

provisions that pertain to all veterinarians regardless of whether they may be exempt

from the Act. This is because they have nothing to do with the “treatment or care of

an animal in any manner” as set forth in the exemption.                        Tex. Occ. Code

§ 801.004(1).6

                             CONCLUSION AND PRAYER

       For the reasons discussed above, the Board respectfully requests this Court to

affirm the trial court’s judgment granting its plea to the jurisdiction.

       The Board prays for such other and further relief as this Court may deem just

and equitable.

Dated: September 11, 2015.




6
 The Board does not waive its right to argue in an appropriate forum that the other laws referred
to in the trial court’s judgment in fact do apply notwithstanding the applicability of the exemption
in § 801.004(1).

                                                32
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.
Division Chief, Administrative Law Division

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
State Bar No. 24008890
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4191
Facsimile: (512) 457-4674
Email: ted.ross@texasattorneygeneral.gov

Attorneys for Appellants/Cross-Appellees Texas
State Board of Veterinary Medical Examiners, and
Nicole Oria




        33
                         CERTIFICATE OF COMPLIANCE

        I hereby certify compliance with Texas Rules of Appellate Procedure 9 and
that there are 7,282 words in this document. Microsoft Word was used to prepare
this filing and calculate the number of words in it.

                                              /s/ Ted A. Ross
                                              Ted A. Ross
                                              Assistant Attorney General



                        CERTIFICATE OF SERVICE

      I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of
Appellate Procedure, a true and correct copy of the above and foregoing document
has been served on the following on this the 11th day of September 2015:

David F. Brown                          Via: Electronic Service and e-mail
dbrown@ebblaw.com
David P. Blanke
dblanke@ebblaw.com
Zeke DeRose III
zderose@ebblaw.com
111 Congress Avenue, 28th Floor
Austin, Texas 78701

Ryan Clinton
rdclinton@dgclaw.com
Davis, Gerald & Cremer, P.C.
111 Congress Avenue, Suite 1660
Austin, Texas 78701
Attorneys for Ellen Jefferson, D.V.M.

                                              /s/ Ted A. Ross
                                              Ted A. Ross
                                              Assistant Attorney General




                                         34
