
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-03-00270-CV


Robert O'Neal, D.C., Appellant


v.


Texas Board of Chiropractic Examiners, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN300020, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


 In this appeal, we consider whether the trial court properly granted a plea to the
jurisdiction dismissing a declaratory judgment action seeking a construction of a statute with which
the defendant agency agrees.  We affirm the judgment of the district court. 

BACKGROUND
	Appellant, Robert O'Neal (O'Neal), is a chiropractor licensed and regulated by
appellee, the Texas Board of Chiropractic Examiners (Board).  See Tex. Occ. Code Ann. §§ 201.301,
et seq. (West 2004).  As part of his practice, O'Neal employs needle electromyography ("needle
EMG"), a diagnostic technique that is used to study nerve conduction in patients.  Needle EMG
entails the insertion of a needle into a patient's muscle as a means of observing and recording
electrical activity. (1) 
	The scope of practice for a "chiropractor" is statutorily defined, in relevant part, as
the performance of "nonsurgical, nonincisive procedures, including adjustment and manipulation,
to improve the subluxation complex or the biomechanics of the musculoskeletal system."  Tex. Occ.
Code. Ann. § 201.002 (Vernon 2003).  The Board has issued statements in 1997, 1998, 1999, and
2002 concluding that needle EMG is within the scope of chiropractic practice.  Tex. Bd. Chiropractic
Exam'rs, Acupuncture, MUA and Needle EMG, (ratified September 11, 1997, amended May 7, 1998
and May 1999), and Tex. Bd. Chiropractic Exam'rs, Re: Scope of Practice Clarification regarding
Nerve Conduction Studies, (January 25, 2002) (memo to all Texas chiropractic licensees). (2)
	In a 1998 opinion, however, the Attorney General issued an opinion concluding that
the use of a needle for any purpose, other than drawing blood for diagnostic purposes or for
acupuncture, is outside the scope of practice of Texas chiropractors.  See Op. Tex. Att'y Gen. DM-427 (1998).  Whether the Board or the Attorney General is correct regarding needle EMG and the
scope of chiropractic practice has not yet been definitively resolved in the courts.  The issue has been
presented in one prior appeal to this court brought by a workers' compensation carrier who sued the
Board following the Board's 1997 opinion concluding that needle EMG was within the scope of
chiropractic practice.  Continental Casualty Co. v. Texas Bd. of Chiropractic Exam'rs, No. 03-00-00513-CV, 2001 WL 359632 (Tex. App.--Austin Apr. 12, 2001, no pet.) (not designated for
publication).  The carrier claimed that, under the Workers Compensation Act, it would be required,
due to the Board's opinion, to reimburse chiropractors for medical care the chiropractors could not
legally provide.  We affirmed the trial court's granting of a plea to the jurisdiction, concluding that
the carrier was requesting an impermissible advisory opinion where the carrier was not a licensee
of the Board and alleged no consequences that the Board could impose against it.  Id. at *7.  We
observed that the carrier's complaint "appears to be against the Workers' Compensation
Commission, which is not a party to the litigation," and added that because needle EMG was not
alleged to be illegal, the carrier would indisputably be required to pay some category of medical
professional for such services.  Id. at ** 7-8.  We thus did not reach the issue of whether needle
EMG is properly within the scope of chiropractic practice. 
	In a prior proceeding brought by O'Neal seeking reimbursement for needle EMG
services he had provided patients, the Texas Workers' Compensation Commission agreed with the
Attorney General that such services are outside the scope of chiropractic practice and not
reimbursable.  The Texas Fund d/b/a Tex. Worker's Comp. Ins. Fund v. Heath & Medical Practice
Assoc. and Texas Worker's Comp. Comm'n, SOAH docket No. 453-01-1615-M4 (July 18, 2001).
But O'Neal failed to timely perfect his appeal to the Travis County district court, and his case was
dismissed for want of jurisdiction.  O'Neal filed the present proceedings in January 2003.
	Here, O'Neal has sued the Board purporting to seek a declaration that needle EMG
is within the scope of chiropractic practice, a position that the Board has steadfastly maintained since
1997.  The district court, concluding that no justiciable controversy existed between O'Neal and the
Board, granted the Board's plea to the jurisdiction.  This appeal ensued. 

DISCUSSION

	O'Neal brings three issues on appeal: (1) his pleadings demonstrated the existence
of a justiciable controversy regarding whether the statutorily defined scope of chiropractic practice,
if interpreted in accord with the Attorney General's view, violates his due process and equal
protection rights, thereby invoking his "inherent, constitutional right to judicial review;" (2) the trial
court had subject matter jurisdiction under section 2001.038 of the Administrative Procedures Act,
Tex. Gov't Code Ann. § 2001.038 (West 2000), which authorizes declaratory judgment actions to
challenge an agency "rule"; and (3) the trial court was required to first rule on special exceptions the
Board had filed, and then permit O'Neal leave to amend his pleadings, before granting the plea to
the jurisdiction.  The Board responds that O'Neal failed to allege facts demonstrating a justiciable
controversy or any threatened or actual impairment of his rights by the Board.  This absence of
subject matter jurisdiction, the Board adds, was incurable.  Thus, the Board urges, the trial court was
not required to allow O'Neal the opportunity to amend and that, in any event, O'Neal had that
opportunity but waived it.  

Standard of review
 A plea to the jurisdiction challenges the trial court's authority to determine the subject
matter of a specific cause of action.  Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004).  When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. 
Id.  We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent.  Id.
Because the district court did not specify the grounds under which it dismissed O'Neal's action, we
may affirm on any of the grounds asserted.  Britton v. Texas Dept. of Criminal Justice, 95 S.W.3d
676, 682 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

Existence of a justiciable controversy
	We agree with the Board that O'Neal has failed to allege facts giving rise to a
justiciable controversy.  Nothing in either section 2001.038 nor any "inherent, constitutional right
to judicial review" can confer subject matter on the trial court where the defendant Board
indisputably agrees with the legal interpretation regarding the scope of chiropractic practice that
O'Neal seeks.  
	"To constitute a justiciable controversy, there must exist a real and substantial
controversy involving genuine conflict of tangible interests and not merely a theoretical dispute."
Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake
Protection Ass'n, 640 S.W.2d 778, 779-80 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.);
Chapman v. Marathon Mfg. Co., 590 S.W.2d 549, 552 (Tex. Civ. App.--Houston [1st Dist.] 1979,
no writ).  Moreover, "for a controversy to be justiciable, there must be a real controversy between
the parties that will be actually resolved by the judicial relief sought."  The State Bar of Tex. v.
Gomez, 891 S.W.2d 243, 245 (Tex. 1994). (3)  A declaratory judgment is appropriate only if a
justiciable controversy exists as to the rights and status of the parties and the controversy will be
resolved by the declaration sought.  Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). 
	O'Neal's only controversy or dispute alleged in his pleadings concerns the legal
opinions of the Attorney General or other agencies--not those of the Board.  He fails to allege
anything more than speculation that the Board might someday change its interpretation of the scope
of chiropractic practice.  Such allegations are too remote to confer subject matter jurisdiction on the
trial court.  For the same reason, even if O'Neal could bring an action challenging Op. Tex. Att'y
Gen. DM-427 or that the opinion is a "rule," the Board would not be the proper defendant. (4)
	Because we find that there is no justiciable controversy between the O'Neal and the
Board, the trial court lacked subject matter jurisdiction over the case. 

Leave to amend
	O'Neal contends that the district court erred when it did not allow him to amend his
pleadings after the Board alleged that his pleadings contained a jurisdictional defect.  We
acknowledge that if pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue
is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.
Miranda, 133 S.W.3d 217, 226.  However, if the pleadings affirmatively negate the existence of
jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an
opportunity to amend.  Id.  In this case, we see no manner in which O'Neal could have amended his
pleadings to have demonstrated that the trial court had jurisdiction over his case.  
	We note, however, that even if it were possible for O'Neal to cure the jurisdictional
defects by amending his pleadings, he waived his right to do so when he did not request to amend
the pleadings in response to the Board's plea to the jurisdiction.  See Kassen v. Hatley, 887 S.W.2d
4, 13-14 n.10 (Tex. 1994).  The Board filed its plea to the jurisdiction, special exceptions, and
original answer on January 24, 2003.  The district court held a hearing on the Board's plea to the
jurisdiction three months later.  Around the time of the hearing, O'Neal filed an opposition to the
Board's plea, but O'Neal did not request an opportunity to replead nor did he plead any additional
jurisdictional facts that would show a live controversy between the Board and O'Neal.  O'Neal had
ample notice of the Board's arguments, but he did not attempt to replead. (5)
  We overrule O'Neal's
issue.

CONCLUSION
 We affirm the judgment of the district court.


					__________________________________________
					Bob Pemberton, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Affirmed
Filed:   September 10, 2004
1.   An electromyogram or EMG is a record of the intrinsic electric activity in a skeletal
muscle.  In needle EMG, data regarding such activity are obtained by inserting a needle electrode
into the muscle and observing electrical activity through an oscilloscope and a loud speaker.  See Op.
Tex. Att'y Gen. DM-427, at 7 n.6 (1998) (citing Mosby's Medical, Nursing & Allied Health
Dictionary 534 (4th ed. 1994)).
2.   The original 1997 opinion and the 1998 and 1999 amendments to the 1997 opinion were
based on the uncodified version of the chiropractic practice definition found in Tex. Rev. Civ. Stat.
Ann. art. 4512b.  The 2002 opinion was based on the codified version.  See Act of May 28, 1999,
76th Leg., R.S., ch. 388, § 1, 1999 Tex. Gen. Laws 1528 (Tex. Occ. Code Ann. §§ 201.301, et seq.
(West 2004)).  Neither party has suggested that the codification had any impact on the issues before
us. 
3.   The doctrine has a pragmatic, prudential aspect that is directed toward "[conserving]
judicial time and resources for real and current controversies, rather than abstract, hypothetical, or
remote disputes."  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  Moreover,
avoiding premature litigation prevents courts from entangling themselves in abstract disagreements
while allowing them to postpone interfering when necessary so that other branches of government
and governmental agencies may perform their functions unimpeded.  Patterson v. Planned
Parenthood of Houston & Southeast Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998). 
4.   We also note that the attorney general opinions are advisory and are issued pursuant to
constitutional and statutory authority.  See Tex. Const. art. IV, § 22; Tex. Gov't Code Ann.
§§ 402.041-.045 (West 1998); see also Kneeland v. Nat'l Collegiate Athletic Ass'n, 850 F.2d 224,
227-28 (5th Cir. 1988).  Attorney General opinions are not rules:  "The attorney general's opinions 
. . . are purely ministerial and advisory."  City of San Antonio v. Texas Att'y Gen., 851 S.W.2d 946,
950 (Tex. App.--Austin 1993, writ denied) (citing James G. Dickson, Jr., Vital Crucible of the Law: 
Politics and Procedures of the Advisory Opinion Function of the Texas Attorney General, 9 Hous.
L. Rev. 495, 517-523 (1972)); Veterans of Foreign Wars v. Abbott, No. 03-02-00447-CV, 2003 WL
21705376, at * 11 (Tex. App.--Austin July 24, 2003); see also Anthony C. Grigsby, Rulemaking:
Before Filing a Challenge, in Administrative Law in Texas, University of Texas Continuing Legal
Education July 29, 2004 ("Statements are not rules if they are intended to provide guidance and
direction, not prescriptive interpretations of statutes, especially if the agency does not follow the
APA procedures when adopting the statements.").  

	Moreover, our court has concluded that attorney general opinions are not the proper subject
matter for an action for declaratory judgment: "In summary, how the Attorney General makes his
legal determinations and runs his office are not subject to declaratory and injunctive relief." 
Veterans of Foreign Wars, 2003 WL 21705376, at *13.
5.   O'Neal argues that the district court could not properly grant the Board's plea to the
jurisdiction without having decided the Board's special exceptions.  To support his contention,
O'Neal points to Texas Dept. of Corr. v. Herring, 513 S.W.2d 6, 9 (Tex. 1974).  However, in
Herring, the state had filed only a summary judgment; it had not filed special exceptions or a plea
to the jurisdiction, "The Department of Corrections leveled no special exceptions to Herring's
pleadings and thus no opportunity to amend his pleadings to state a cause of action was afforded." 
Id.  Instead, we look to Harris Co. v. Sykes, No. 02-1014, 2004 WL 1194127, at *3 (Tex. 2004): 

A trial court must grant a plea to the jurisdiction, after providing an appropriate
opportunity to amend, when the pleadings do not state a cause of action upon
which the trial court has jurisdiction.  This was such a case.  After Harris County
filed its plea to the jurisdiction, Sykes amended her petition to state with greater
particularity [her] theory.  	***

If a plaintiff has been provided a reasonable opportunity to amend after a
governmental entity files its plea to the jurisdiction, and the plaintiff's amended
pleading still does not allege facts that would constitute a waiver of immunity,
then the trial court should dismiss the plaintiff's action. 

Id.  Although, in this case, O'Neal did not choose to amend his pleadings, he was afforded a three-
month window of opportunity to do so.
