                                                                                         ACCEPTED
                                                                                     03-15-00262-CV
                                                                                             6432956
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                8/10/2015 4:45:15 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK



          No. 3-15-00262-CV                                          FILED IN
                                                              3rd COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                        In the Court of Appeals               8/10/2015 4:45:15 PM
                    Third District of Texas — Austin            JEFFREY D. KYLE
                                                                      Clerk


          TEXAS ASSOCIATION OF ACUPUNCTURE
                AND ORIENTAL MEDICINE,
                                        Appellant,
                          v.

  TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE
YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,
                                          Appellees.


          On Appeal from 201st District Court, Travis County, Texas
                       Cause No. D-1-GN-14-000355




         BRIEF OF APPELLANT
 TEXAS ASSOCIATION OF ACUPUNCTURE
       AND ORIENTAL MEDICINE

                           Craig T. Enoch
                          Melissa A. Lorber
                           Shelby O’Brien
                        ENOCH KEVER PLLC
                  600 Congress Avenue, Suite 2800
                         Austin, Texas 78701
                 (512) 615-1200 / (512) 615-1198 fax
                        Attorneys for Appellant

                ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL



Appellant (Plaintiff)
Texas Association of Acupuncture            Trial and Appellant counsel:
and Oriental Medicine (“Association”)       Craig T. Enoch
                                            Melissa A. Lorber
                                            Shelby O’Brien
                                            ENOCH KEVER PLLC
                                            600 Congress Avenue, Suite 2800
                                            Austin, Texas 78701


Appellees (Defendants)
Texas Board of Chiropractic                 Trial and Appellate counsel:
Examiners and Yvette Yarbrough,             Joe H. Thrash
Executive Director in her Official          Assistant Attorney General
Capacity                                    Administrative Law Division
(collectively “Chiropractic Board”)         P.O. Box 12548
                                            Austin, Texas 78711




                                        i
                              STATEMENT OF THE CASE

Nature of         This is an Administrative Procedures Act challenge to the validity of
the Case:         Chiropractic Board rules that authorize chiropractors to engage in
                  the unlicensed practice of acupuncture. The Association sought to
                  invalidate these rules and alternatively sought a declaration under
                  the Uniform Declaratory Judgment Act that the statutory scheme
                  purportedly authorizing chiropractors to practice acupuncture is
                  unconstitutional. 1 At issue is whether (1) the rules are invalid
                  because acupuncture is outside the statutory scope of chiropractic,
                  and (2) in the alternative, the statutory scheme purportedly
                  authorizing chiropractors to practice acupuncture violates the
                  constitutional prohibitions against the Legislature preferring one
                  school of medicine and enacting legislation that contains more than
                  one subject.

Trial Court: The 201st District Court of Travis County, Texas; Cause No. D-1-
             GN-14-000355.

Trial Court The trial court granted the Chiropractic Board’s motion for
Disposition: summary judgment and denied the Association’s competing
             motion. 2




1
    Clerk’s Record (“CR”) 3-19, 50-65, 716-32.
2
    Appendix (“App.”) A.


                                                 ii
              STATEMENT REGARDING ORAL ARGUMENT
      This is an appeal of the trial court’s summary judgment in a suit in which the

Association challenged Chiropractic Board rules that authorize chiropractors to

engage in the unlicensed practice of acupuncture. This case requires the Court to

consider the validity of administrative rules, evaluate the constitutionality of

statutes, and determine the extent to which an agency can adopt rules authorizing

its licensees to engage in an occupational practice that is regulated by a different

regulatory board. The Association believes oral argument would be helpful in the

Court’s determination of these important issues of administrative law.




                                        iii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................i
STATEMENT OF THE CASE ................................................................................. ii
STATEMENT REGARDING ORAL ARGUMENT ............................................. iii
INDEX OF AUTHORITIES................................................................................... vii
ISSUES PRESENTED........................................................................................... xiii
INTRODUCTION ..................................................................................................... 1
STATEMENT OF FACTS ........................................................................................ 4
         A.       Acupuncture and chiropractic are distinct practices regulated by
                  separate regulatory boards. .................................................................... 4
         B.       Despite the Chiropractic Chapter’s prohibition on needle use,
                  the Chiropractic Board has repeatedly asserted that
                  chiropractors may practice acupuncture and other procedures
                  requiring needle use............................................................................... 6
         C.       The Legislature amended the Acupuncture Chapter to define
                  acupuncture as the “nonincisive, nonsurgical” insertion of an
                  acupuncture needle. ............................................................................... 9
         D.       The Chiropractic Board adopted rules expressly authorizing
                  chiropractors to practice acupuncture without a license from the
                  Acupuncture Board.............................................................................. 12
         E.       This Court invalidated several Chiropractic Board rules,
                  including a rule authorizing chiropractors to use needles, but
                  the Chiropractic Board has refused to repeal its rules
                  authorizing needle use and the practice of acupuncture. .................... 13
SUMMARY OF ARGUMENT ............................................................................... 16
ARGUMENT ........................................................................................................... 18
I.       Because acupuncture is outside the statutory scope of chiropractic, the
         Chiropractic Board’s rules authorizing chiropractors to practice
         acupuncture without a license from the Acupuncture Board are
         invalid. ........................................................................................................... 18

                                                              iv
A.   The Chiropractic Board only has authority to adopt rules
     consistent with its statutory grant from the Legislature. ..................... 18
B.   The     Chiropractic   Chapter    unambiguously           prohibits
     chiropractors from performing procedures involving needles,
     including acupuncture, because there is only one exception for
     needles—those used for diagnostic blood draws. ............................... 20
     1.     The Chiropractic Chapter broadly instructs that ‘incisive”
            encompasses incisions made by needles into the skin. ............. 20
     2.     Statutory construction principles confirm that the
            Chiropractic Chapter prohibits all needle use except for
            needles used for diagnostic blood draws. ................................. 21
     3.     Chiropractic is limited to specific techniques on discrete
            parts of the body while acupuncture is a separate medical
            profession in which practitioners treat the whole body. ........... 26
C.   The Chiropractic Board’s interpretation of the Acupuncture
     Chapter as indirectly expanding the scope of chiropractic is
     entitled to no deference because it is unreasonable. ........................... 28
     1.     The Chiropractic Board’s interpretation contravenes the
            regulatory purpose of occupational statutes and creates a
            public health risk. ...................................................................... 28
     2.     It is unreasonable for the Chiropractic Board to rely on
            another profession’s scope of practice statute to allow its
            practitioners to practice a procedure that is prohibited
            under the Chiropractic Chapter. ................................................ 34
            a.       The Chiropractic Board has impermissibly latched
                     onto one word (“nonincisive”) in the Acupuncture
                     Chapter to redefine its own scope of practice. ............... 34
            b.       Legislative history supports that the amendment to
                     the definition of acupuncture in the Acupuncture
                     Chapter did not grant the Chiropractic Board the
                     authority to regulate acupuncture. .................................. 37




                                           v
                            c.       The Court should decline to read the Acupuncture
                                     Chapter and Chiropractic Chapter in pari materia
                                     to create an exemption for acupuncture in the
                                     Chiropractic Chapter....................................................... 42
         D.       The Chiropractic Board’s interpretation of the Acupuncture
                  Chapter is entitled to no deference because the Chiropractic
                  Board’s expertise is chiropractic, not acupuncture. ............................ 45
         E.       The Chiropractic Board’s rules are invalid because they
                  impermissibly allow chiropractors to practice acupuncture in
                  violation of the Acupuncture Chapter. ................................................ 46
         F.       The rules are invalid because they authorize chiropractors to
                  engage in the unauthorized practice of medicine. ............................... 47
II.      Alternatively, the statutory scheme purportedly authorizing
         chiropractors to practice acupuncture violates the Texas Constitution
         because the Legislature may not favor one school of medicine over
         another nor enact legislation containing more than one subject. .................. 49
         A.       The statutory scheme purportedly authorizing chiropractors to
                  practice acupuncture with significantly less education and
                  training in acupuncture than licensed acupuncturists violates
                  Texas Constitution, Article XVI, Section 31. ..................................... 50
         B.       The legislation that purportedly authorized chiropractors to
                  practice acupuncture violates the one-subject rule in Texas
                  Constitution, Article III, Section 35(a). .............................................. 52
III.     The Chiropractic Board’s statute of limitations defense fails as a
         matter of law. ................................................................................................. 54
PRAYER ..................................................................................................................59
CERTIFICATE OF COMPLIANCE ....................................................................... 61
CERTIFICATE OF SERVICE ................................................................................ 61
APPENDIX ..............................................................................................................62




                                                            vi
                                      INDEX OF AUTHORITIES
CASES
Andrews v. Ballard
  498 F. Supp. 1038 (S.D. Tex. 1980) .......................................................33, 47, 52
AT&T Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co.
  186 S.W.3d 528 (Tex. 2006) .............................................................................. 37
Bd. of Water Eng’gs v. City of San Antonio
   283 S.W.2d 722 (Tex. 1955) .............................................................................. 53
Beeman v. Livingston
   __ S.W.3d __, 2015 WL 4072404 (Tex. June 26, 2015) .............................. 23-24
Brooks v. Texas Medical Board
    No. 03-14-00239-CV, 2015 WL 3827327 (Tex. App.—Austin
   June 18, 2015, no pet. h.) ........................................................................ 36, 48-49
C. Hayman Constr. Co. v. Am. Indem. Co.
   471 S.W.2d 564 (Tex. 1971) .............................................................................. 52
CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities
  263 S.W.3d 448 (Tex. App.—Austin 2008), aff’d 324 S.W.3d 95
  (Tex. 2010) ..........................................................................................................23
City of Houston v. Clark
   197 S.W.3d 314 (Tex. 2006) .............................................................................. 33
City of Rockwall v. Hughes
   246 S.W.3d 621 (Tex. 2008) .............................................................................. 25
City of Round Rock v. Rodriguez
   399 S.W.3d 130 (Tex. 2013) .............................................................................. 38
Commonwealth v. Schatzberg
  371 A.2d 544 (Pa. Cmwlth. 1977) ................................................................33, 47
DLB Architects, P.C. v. Weaver
  305 S.W.3d 407 (Tex. App.—Dallas 2010, pet. denied).................................... 43
Dvorken v. Lone Star Indus., Inc.
  740 S.W.2d 565 (Tex. App.—Fort Worth 1987, no writ) .................................. 58


                                                           vii
Entergy Gulf States, Inc. v. Summers
   282 S.W.3d 433 (Tex. 2009) .............................................................................. 37
Ex parte Halsted
   182 S.W.2d 479 (Tex. Crim. App. 1944) .....................................................47, 51
Fazio v. Cypress/GR Houston I, L.P.
  403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, pet.
  denied).................................................................................................................23
Grasso v. Cannon Ball Motor Freight Lines
  81 S.W.2d 482 (Tex. Com. App. 1935) .............................................................. 39
Greater Houston P’ship v. Paxton
  __ S.W.3d __, 2015 WL 3978138 (Tex. June 26, 2015) ..............................24, 42
Heine v. Tex. Dept. of Pub. Safety
  92 S.W.3d 642 (Tex. App.—Austin 2002, pet. denied) ............................... 55-56
Howlett v. Tarrant Cnty.
  301 S.W.3d 840 (Tex. App.—Fort Worth 2009, pet. denied) ............................ 43
In re JMR
    149 S.W.3d 239 (Tex. App.—Austin 2004, no pet.) .......................................... 43
In re Smith
    333 S.W.3d 349 (Tex. 2011) .............................................................................. 19
Jessen Assocs., Inc. v. Bullock
   531 S.W.2d 593 (Tex. 1976) .............................................................................. 52
Jose Carreras, M.D., P.A. v. Marroquin
   339 S.W.3d 68 (Tex. 2011)................................................................................. 25
Kelley v. Raguckas
   270 N.W.2d 665 (Mich. App. 1978) ................................................................... 47
Kuntz v. Khan
  No. 03–10–00160–CV, 2011 WL 182882 (Tex. App.—Austin
  2011, no pet.) ......................................................................................................23
LeCroy v. Hanlon
  713 S.W.2d 335 (Tex. 1986) .............................................................................. 52



                                                           viii
Mid-Century Ins. Co. of Tex. v. Kidd
  997 S.W.2d 265 (Tex. 1999) .............................................................................. 23
Nat’l Media Corp. v. City of Austin
  No. 03-12-00188-CV, 2014 WL 4364815 (Tex. App.—Austin
  Aug. 27, 2014, no pet.) ................................................................................. 43-44
Nw. Austin Municipal Util. Dist. No. 1 v. City of Austin
  274 S.W.3d 820 (Tex. App.—Austin 2008, pet. denied) ............................. 58-59
People v. Roos
  514 N.E.2d 993 (Ill. 1987) .................................................................................. 47
Physician Assistants Bus. Alliance of Tex., LLC v. Tex. Med. Bd.
  No. 03-12-00735-CV, 2015 WL 681010 (Tex. App.—Austin Feb.
  13, 2015, no pet.) .................................................................................... 19-20, 23
Pruett v. Harris Cnty. Bail Bond Bd.
   249 S.W.3d 447 (Tex. 2008) .............................................................................. 19
Pub. Util. Comm’n of Tex. v. City of Pub. Serv. Bd. of San Antonio
  53 S.W.3d 310 (Tex. 2001)................................................................................. 18
R.R. Comm’n of Tex. v. Lone Star Gas Co.
   844 S.W.2d 679 (Tex. 1992) .............................................................................. 18
R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future and Clean Water
   336 S.W.3d 619 (Tex. 2011) .............................................................................. 19
Ritchie v. Rupe
   443 S.W.3d 856 (Tex. 2014) .............................................................................. 24
Robinson v. Crown Cork & Seal Co., Inc.
  335 S.W.3d 126 (Tex. 2010) .............................................................................. 37
Rodriguez v. Tex. Workforce Comm’n
  986 S.W.2d 781 (Tex. App.—Corpus Christi 1999, pet. denied) ...................... 42
Rogers v. Tex. Bd. of Architectural Exam’rs
  390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.) ....................................20, 45
Schlichting v. Tex. State Bd. of Medical Exam.
   310 S.W.2d 557 (Tex. 1958) .............................................................................. 50



                                                        ix
Sommermeyer v. State
  713 S.W.2d 183 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d)................ 53
State v. $1,760.00 in U.S. Currency
   406 S.W.3d 177 (Tex. 2013) .............................................................................. 24
State v. Rich
   339 N.E.2d 630 (Ohio 1975) .............................................................................. 47
State v. Won
   528 P.2d 594 (Ore. App. 1974)........................................................................... 47
State Agencies v. R.R. Comm’n of Tex.
   421 S.W.3d 690 (Tex. App.—Austin 2014, no pet.) .......................................... 34
State Office of Pub. Util. Council v. Pub. Util. Comm’n of Tex.
   131 S.W.3d 314 (Tex. App.—Austin 2004, pet. denied) .............................23, 57
Teem v. State
   183 S.W. 1144 (Tex. Crim. App. 1916) ............................................................. 47
Tex. Ass’n of Psychological Assoc. v. Tex. State Bd. for Exam’rs of
   Psychologists
   439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) ......................................... 55
Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n
   375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied)
   ..........................................5-9, 13-14, 19, 21-22, 25, 28, 38, 44-45, 49, 54-55, 57
Tex. Dep’t of Transp. v. Sefzik
   355 S.W.3d 618 (Tex. 2011) (per curiam) ......................................................... 50
Tex Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Exam’rs
   254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) .................19, 23, 48, 52
Tex. State Bd. of Barber Exam’rs v. Beaumont Barber College, Inc.
   454 S.W.2d 729 (Tex. 1970) ........................................................................28, 56
Tex. State Bd. of Chiropractic Examiners v. Abbott
   391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.) .............................. 25, 42-44
Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n
   458 S.W.3d 552, 554 (Tex. App.—Austin 2014, pet. filed) .............................. 55



                                                      x
Tex. State Bd. of Public Accountancy v. Fulcher
   515 S.W.2d 950 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d
   n.r.e.) .............................................................................................................36, 56
Tex. Water Comm’n v. Brushy Creek Mun. Util. Dist.
   917 S.W.2d 19 (Tex. 1996)................................................................................. 40
TGN-NOPEC Geophysical Co. v. Combs
  340 S.W.3d 432 (Tex. 2011) .............................................................................. 23
Thompson v. Tex. State Bd. of Med. Exam’rs
  570 S.W.2d 123 (Tex. App.—Tyler 1978, writ refused n.r.e.) .......................... 46
Transp. Ins. Co. v. Maksyn
   580 S.W.2d 334 (Tex. 1979) .............................................................................. 40
West Orange-Cove Consol. Indep. Sch. Dist. v. Alanis
  107 S.W.3d 558 (Tex. 2003) ........................................................................41, 54
Wilson v. State Bd. of Naturopathic Examiners
   298 S.W.2d 946 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.) .................... 50

RULES, STATUTES & OTHER PROVISIONS
22 TEX. ADMIN. CODE § 75.17 ................................................................ 12-15, 57-59
22 TEX. ADMIN. CODE § 75.21 ................................................................ 13-15, 57-59
22 TEX. ADMIN. CODE § 78.13 .......................................................... 14-16, 22, 57-59
22 TEX. ADMIN. CODE § 78.14 .............................................. 14-16, 27, 30-32, 57-59
22 TEX. ADMIN. CODE § 78.15 ...........................................................................14, 58
22 TEX. ADMIN. CODE § 183.2 ........................................................................... 29-30
22 TEX. ADMIN. CODE § 183.4 ........................................................................... 29-30
22 TEX. ADMIN. CODE § 183.20 ............................................................................... 30
22 TEX. ADMIN. CODE § 184.4 ................................................................................. 29
TEX. CIV. PRAC. & REM. CODE § 16.051................................................17, 54, 56, 58
TEX. CIV. PRAC. & REM. CODE § 37.004.................................................................. 50
TEX. CIV. PRAC. & REM. CODE § 37.006.................................................................. 50
                                     xi
TEX. CONST. art. III, § 35(a) ...................................................................17, 40, 49, 52
TEX. CONST. art. XVI, § 31 ..........................................................................17, 49, 50
TEX GOV’T CODE § 311.026..................................................................................... 42
TEX. OCC. CODE § 151.002 ............................................................................6, 48, 51
TEX. OCC. CODE § 151.052 ................................................................. 6, 47-48, 51-52
TEX. OCC. CODE § 201.002 ............................................... 5, 15, 20-21, 24, 26-27, 46
TEX. OCC. CODE § 201.152 ........................................................................................ 5
TEX. OCC. CODE § 201.1525 ................................................................................8, 12
TEX. OCC. CODE § 201.1526..................................................................................... 12
TEX. OCC. CODE § 205.001 ......................................................................9, 26, 46, 52
TEX. OCC. CODE § 205.101 ...................................................................................... 47
TEX. OCC. CODE § 205.201 ...................................................................................... 46
TEX. OCC. CODE § 205.203 ..........................................................................29, 33, 52
TEX. OCC. CODE § 205.206 ..........................................................................29, 33, 52
TEX. OCC. CODE § 205.255 ................................................................................30, 52

OTHER AUTHORITIES
Act of May 29, 1997, 75th Leg., R.S., ch. 1170, § 1 ...........................................9, 39
Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8 ...........................................8, 12
Tex. Att’y Gen. Op. DM-471 (1998) ................................................................. 11-12
Tex. Att’y Gen. Op. DM-472 (1998) ...................................................................8, 12
Tex. Att’y Gen. Op. DM-415 (1996) ......................................................................... 7
Tex. S.B. 1601, 82nd Leg., R.S. (2011).............................................................11, 39




                                                       xii
                           ISSUES PRESENTED
ISSUE 1: Because acupuncture is outside the statutory scope of
chiropractic, the Chiropractic Board’s rules authorizing chiropractors to
practice acupuncture without a license from the Acupuncture Board are
invalid.

ISSUE 2: Alternatively, the statutory scheme purportedly authorizing
chiropractors to practice acupuncture violates the Texas Constitution because
the Legislature may not favor one school of medicine over another nor enact
legislation containing more than one subject.

ISSUE 3: The Chiropractic Board’s statute of limitations defense fails as a
matter of law.




                                    xiii
                                INTRODUCTION
      Acupuncture and chiropractic are governed by distinct chapters of the

Occupations Code and are subject to regulation by separate administrative boards.

In these two chapters, the Legislature has set forth the unique training and

education requirements for each healthcare profession. And the Legislature has

granted each governing board the authority to regulate the healthcare profession

within its expertise—the Chiropractic Board regulates the practice of chiropractic

and the Texas State Board of Acupuncture Examiners (“Acupuncture Board”)

regulates the practice of acupuncture. Statutes governing healthcare professions

like chiropractic and acupuncture serve a critical function: they protect the public

by ensuring baseline standards that the public can assume have been met when

seeking a particular healthcare treatment.

      In this case, the Association challenged Chiropractic Board rules that

authorize chiropractors to practice acupuncture without a license from or oversight

by the Acupuncture Board. The Chiropractic Board adopted these rules even

though the Chiropractic Chapter limits chiropractic to treatment of the

musculoskeletal system and expressly prohibits chiropractors from performing

incisive procedures, with only one narrow exception for the use of needles for

diagnostic blood draws.




                                         1
          The Chiropractic Board performs no regulatory oversight over the practice

of acupuncture by its licensees, has no expertise in acupuncture, and does not

require its licensees to complete the education and training the Legislature has

statutorily determined is necessary for the safe practice of acupuncture. Licensed

acupuncturists must complete at least 2,625 hours in acupuncture training in a four-

year degree program. But the Chiropractic Board requires chiropractors to

complete only a paltry 100 hours of acupuncture instruction, with no requirement

of actual clinical training. The Chiropractic Board does not know how many or

which chiropractors practice acupuncture in Texas or if those chiropractors have

met even these minimal “standards” for the practice of acupuncture. This is simply

one strand in a larger pattern for the Chiropractic Board—authorizing healthcare

practices that far exceed what is “chiropractic,” even after censure by the

Legislature, the courts, and state officials.

          Recognizing      nothing     in   Texas       Occupations    Code,     Chapter   201

(“Chiropractic Chapter”) 3 authorized the practice of acupuncture by its licensees,

the Chiropractic Board creatively commandeered a term in the Chapter 205

(“Acupuncture          Chapter”) 4—defining           acupuncture     as   the   “nonincisive,

nonsurgical” insertion of acupuncture needles. The Board has twisted that term

3
    The Chiropractic Chapter is attached as App. C.
4
    The Acupuncture Chapter is attached as App. D.




                                                 2
into an “outside the Chapter” exception to the Chiropractic Chapter’s prohibition

on incisive procedures. But the Acupuncture Chapter does not mention

chiropractors, does not excuse chiropractors from obtaining a license from the

Acupuncture Board, does not except chiropractors from the minimum education

and training hours the Legislature has determined are required to safely and

effectively perform the procedure, and does not remove chiropractors from

oversight by the Acupuncture Board when practicing acupuncture.

      The Court should reject the Chiropractic Board’s effort to pile so much

meaning on the term “nonincisive” in the Acupuncture Chapter. The Chiropractic

Board’s hijacking of a term in another occupation’s governing statute to reinvent

its own scope of practice creates a statutory scheme in which practitioners and the

public are required to hop-scotch between the Acupuncture Chapter and the

Chiropractic Chapter (and potentially various other Occupations Code chapters and

agency rules) to determine what procedures chiropractors are authorized to

perform. If the Chiropractic Board’s rules are allowed to stand, this Court’s

conclusion will create a precedent where a regulatory board may simply pronounce

that its practitioners can perform another healthcare profession without complying

with the regulatory framework required by state law. The Chiropractic Board’s

novel interpretation is unreasonable and unworkable.




                                        3
      In adopting and improperly amending rules authorizing the unlicensed

practice of acupuncture, the Chiropractic Board has exceeded the scope of its

statutory authority and the rules should be declared invalid. Alternatively, the

statutory scheme purportedly authorizing chiropractors to practice acupuncture

without a license or oversight by the Acupuncture Board violates the provisions of

the Texas Constitution prohibiting legislation that favors one branch of medicine or

contains more than one subject. The Court should reverse the trial court’s judgment

and render judgment for the Association.


                           STATEMENT OF FACTS

A.    Acupuncture and chiropractic are distinct practices regulated by
      separate regulatory boards.
      The Texas Occupations Code is delineated into chapters, each regulating

distinct professions. Each of those chapters requires specific training and licensing

unique to each profession to ensure persons practicing those professions are well-

trained in their chosen field. Because the Legislature sets forth education and

training requirements unique to each profession, Texas consumers are able to

safely choose from providers who are appropriately qualified to practice a

particular procedure. The Chiropractic Chapter governs the practice of

chiropractic; the Acupuncture Chapter governs the practice of acupuncture.

      As is true with other regulated professions, chiropractors may only perform

procedures that are within the statutory scope of the practice of chiropractic, and

                                           4
the Chiropractic Board may only adopt rules governing chiropractic. See TEX. OCC.

CODE §§ 201.002, 201.152. Under the Chiropractic Chapter, chiropractors are
                                                                                             5
limited to treating the musculoskeletal system. See id. § 201.002(b)(1)-(2). And

incisive procedures—defined by that chapter as “making an incision into any

tissue, cavity, or organ by any person or implement”—are expressly identified as
                                                                                        6
outside the scope of chiropractic practice. See id. §§ 201.002(a)(3), (b)(2).

        The Chiropractic Chapter’s prohibition against incisive procedures

identifies only one exception: “the use of a needle for the purpose of drawing

blood for diagnostic testing.” Id. § 201.002(a)(3). Thus, the Chiropractic Chapter

considers the use of a needle to be an incisive procedure. Nothing in the Chapter

cross-references the Acupuncture Chapter, lists acupuncture as an exception to the

prohibition on incisive procedures, or otherwise specifies that a chiropractor can

practice acupuncture or any other procedure involving needles (except diagnostic

blood draws).




5
  Chiropractors may also improve the subluxation complex, which is a category of spinal
disorders, using nonincisive, nonsurgical procedures such as adjustment and manipulation. Tex.
Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464, 468 (Tex. App.—Austin 2012,
pet. denied). Because subluxation refers to a disorder of the spine, for ease of reference in this
brief, the term musculoskeletal is used to encompass this term.
6
 Surgical procedures are also prohibited, but there is no dispute that acupuncture is not a surgical
procedure. See TEX. OCC. CODE § 201.002(a)(4), (b)(2).




                                                 5
          Finally, though chiropractic is a healthcare profession, the Chiropractic

Board is not overseen by the Texas Medical Board, and chiropractors are exempt

from complying with the Texas Medical Practice Act—but only to the extent they

engage strictly in the practice of chiropractic. See id. §§ 151.002(13), 151.052. The

Chiropractic Chapter prohibits the use of needles by chiropractors; thus, when a

chiropractor practices acupuncture, he is not strictly engaged in the practice of

chiropractic.

B.        Despite the Chiropractic Chapter’s prohibition on needle use, the
          Chiropractic Board has repeatedly asserted that chiropractors may
          practice acupuncture and other procedures requiring needle use.
          Since the 1990s, the Chiropractic Board has controversially asserted that

acupuncture        and    other    procedures      involving     needles,   such   as   needle

electromyography (“needle EMG”), are within the scope of the practice of

chiropractic. See Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d
                                                             7
464, 469 (Tex. App.—Austin 2012, pet. denied). The Legislature responded to

this controversy in 1995 by enacting the current statutory language in the

Chiropractic Chapter prohibiting chiropractors from practicing incisive procedures,

with only the one exception for diagnostic blood draws. Id. When the Chapter was

amended to prohibit incisive procedures, Representative Janek explained that


7
    This Court’s Texas Medical Association opinion is attached as App. F.




                                                 6
“[t]his amendment would take out any ability by the chiropractors to put needles

into people.” Id. n.7. Soon after, in light of this amendment, the Attorney General

issued an opinion declaring that acupuncture is outside the scope of the practice of

chiropractic. Tex. Att’y Gen. Op. No. DM-415 (1996). The Attorney General

reached this conclusion because the sole exception to the prohibition on the

performance of incisive procedures was diagnostic blood draws. Id. Thus, the

Attorney General reasoned that all other procedures involving needles were outside

the statutory scope of chiropractic. Id.

          Disregarding the Attorney General’s opinion, the Chiropractic Board
                                                                                     8
nonetheless continued asserting that its practitioners could practice acupuncture.

This was simply another chapter in the Chiropractic Board’s long history of

attempting to aggrandize the practice of chiropractic far beyond what is

“chiropractic,” not only as commonly understood but as defined by statute:

          •    The Chiropractic Board claimed chiropractors could perform needle
               EMG. An administrative law judge found that needle EMG was not
               within the scope of chiropractic, but the Chiropractic Board continued
               to advise chiropractors that they could perform the procedure. 9 It
               continued to do so until this Court shut down the practice by
               concluding that needle EMG is an incisive procedure. See Tex. Med.
               Ass’n, 375 S.W.3d at 481-82, 497.



8
    CR 577.
9
    Id.




                                           7
           •   The Chiropractic Board claimed that chiropractors may perform
               manipulation under anesthesia (“MUA”). Consequently, the
               Legislature amended the Chiropractic Chapter to prohibit
               chiropractors from performing MUA, 10 but the Chiropractic Board
               continued advising chiropractors that they could perform the
               procedure. 11 Again, it was not until this Court mandated that MUA is
               a surgical procedure that the Chiropractic Board finally conceded that
               MUA was outside the scope of chiropractic. See id. at 488.

           •   The Chiropractic Board contended that chiropractors could inject
               substances into patients. The Attorney General opined that the
               injection of substances is the use of a needle and is thus outside the
               scope of chiropractic. See Tex. Att’y Gen. Op. DM-472 (1998). The
               Chiropractic Board ignored this opinion and continued advising
               chiropractors that they could perform procedures involving needles
               (like needle EMG). 12

           •   The Comptroller found that the Chiropractic Board had refused to
               comply with legislative enactments by failing to develop rules
               clarifying restrictions on performing incisive and surgical procedures,
               and recommended that the Chiropractic Board adopt rules establishing
               clear guidelines on the permissible scope of practice. 13 The
               Chiropractic Board declined to do so until forced to by the
               Legislature, despite the fact that it gave the Comptroller written
               assurances that it had begun the process of developing rules. 14 See Act
               of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8 (codified as TEX. OCC.
               CODE § 201.1525).




10
     CR 578.
11
     Id.
12
     CR 577.
13
     CR 578.
14
     Id.




                                           8
         •        The Chiropractic Board evaded rule challenges and input from
                  stakeholders by issuing opinions informing chiropractors that they
                  could perform various procedures, rather than adopting rules. Tex.
                  Med. Ass’n, 375 S.W.3d at 470. 15

C.       The Legislature amended the Acupuncture Chapter to define
         acupuncture as the “nonincisive, nonsurgical” insertion of an
         acupuncture needle.
         In 1997, in the course of the Acupuncture Board’s sunset review, the

Legislature amended the Acupuncture Chapter to define acupuncture as the

“nonincisive, nonsurgical” insertion of an acupuncture needle. See Act of May 29,

1997, 75th Leg., R.S., ch. 1170, § 1 (Senate Bill 361) (codified as TEX. OCC. CODE

§ 205.001(2)). This is the language the Chiropractic Board relies on to argue that

the definition of acupuncture in the Acupuncture Chapter constitutes both an

exception to the Chiropractic Chapter’s prohibition against needle use and an

invitation for chiropractors to practice acupuncture without a license from or

oversight by the Acupuncture Board.

         The bill’s legislative history demonstrates that:




15
     CR 574-80.




                                             9
           •      The Acupuncture Board’s sunset bill originated in the Senate. Senator
                  Madla offered an amendment amending the definition of acupuncture
                  in the Acupuncture Chapter by inserting the term “nonsurgical,
                  nonincisive” in an apparent indirect attempt to allow chiropractors to
                  practice acupuncture. 16 The Senate passed the legislation as
                  amended. 17

           •      When the bill was heard in the House Committee on Public Health,
                  Representative Gray offered amendments that removed the
                  “nonincisive, nonsurgical” amendment to the Acupuncture Chapter
                  that had been adopted in the Senate and instead amended the
                  Chiropractic Chapter to expressly authorize chiropractors to practice
                  acupuncture, set forth training and education requirements, and
                  provide for oversight by the Chiropractic Board. 18

           •      The legislation proceeded to the House floor. The House committee
                  amendments providing direct authority for chiropractors to practice
                  acupuncture were struck on point of order because the sunset bill was
                  limited to the function of the Acupuncture Board and the proposed
                  amendments to the scope of chiropractic were not germane to the
                  bill. 19

           •      Ultimately, the bill was sent to conference committee where the
                  conferees reinserted the “nonincisive, nonsurgical” amendment to the
                  definition of acupuncture in the Acupuncture Chapter that had
                  previously been added in the Senate. 20

           Notably, the Chiropractic Chapter was not amended to affirmatively allow

chiropractors to practice acupuncture, even though there was an effort to do so.

And nothing in Senate Bill 361 gave the Chiropractic Board the authority to adopt
16
     CR 455, 466.
17
     Id.
18
     CR 512.
19
     CR 515-16.
20
     CR 526, 534, 536.




                                             10
rules authorizing chiropractors to practice acupuncture or created an exemption for

chiropractors     from the Acupuncture Chapter’s       education   and licensing

requirements. Indeed, Representative Gray cautioned that amending the definition

of acupuncture in the Acupuncture Chapter would put the practice of acupuncture

by chiropractors under regulation by the Acupuncture Board, not the Chiropractic

Board. 21 Since Senate Bill 361’s enactment, legislation has unsuccessfully been

proposed to authorize chiropractors to practice acupuncture under regulation by the

Chiropractic Board. See Tex. S.B. 1601, 82nd Leg., R.S. (2011).

         Nonetheless, relying on the amendment to the Acupuncture Chapter, the

Attorney General reversed course, reasoning that the Chiropractic Chapter and

Acupuncture Chapter should be read in pari materia since both regulate healthcare

professions. Tex. Att’y Gen. Op. DM-471 (1998). Improperly reading the chapters

together, the Attorney General reached the unsound conclusion that acupuncture

had become within the statutory scope of the practice of chiropractic simply by

virtue of the amendment to the Acupuncture Chapter. Id. That same day, the

Attorney General also issued a contradictory opinion concluding that the use of

needles continued to exceed the statutory scope of chiropractic, with the statutory




21
     CR 478-80.




                                        11
exception of blood draws and the “new exception” for acupuncture recognized in

DM-471. Tex. Att’y Gen. Op. DM-472 (1998).

D.       The Chiropractic Board adopted rules expressly authorizing
         chiropractors to practice acupuncture without a license from the
         Acupuncture Board.

         A few years later, in the course of the Chiropractic Board’s 2004 sunset

review, the Sunset Advisory Committee criticized the Chiropractic Board for its

systematic refusal to comply with the confines of the Chiropractic Chapter’s scope

of practice provision. 22 It found that “[t]he Board has a history of acting

unilaterally to expand scope of practice in a way that seems to indicate a greater

interest in promoting the profession than following the law and protecting

patients.” 23

         In response, during the 2005 legislative session, the Legislature enacted a

provision requiring the Chiropractic Board to adopt rules clarifying which specific

activities are included in the scope of the practice of chiropractic. See Act of May

27, 2005, 79th Leg., R.S., ch. 1020, § 8 (codified at TEX. OCC. CODE §§ 201.1525-

.1526). In 2006, the Chiropractic Board responded by promulgating 22 Texas

Administrative Code § 75.17, formally authorizing chiropractors to perform

manipulation under anesthesia, acupuncture, and needle EMG. Subsequently, in
22
     CR 574, 577-798.
23
     CR 577.




                                          12
2009, the Chiropractic Board enacted 22 Texas Administrative Code § 75.21,

which set forth parameters for the practice of acupuncture by chiropractors.

E.    This Court invalidated several Chiropractic Board rules, including a
      rule authorizing chiropractors to use needles, but the Chiropractic
      Board has refused to repeal its rules authorizing needle use and the
      practice of acupuncture.
      The Texas Medical Association challenged several of the Chiropractic

Board’s newly adopted scope of practice rules, including those authorizing

chiropractors to perform needle EMG, on grounds that needle EMG is an incisive

procedure involving a needle and thus is outside the statutory scope of chiropractic.

See Tex. Med. Ass’n, 375 S.W.3d at 472. The district court agreed and invalidated

several of the rules, including Rule 75.17(a)(3), which expressly authorized

chiropractors to use needles. At the time of the suit, Rule 75.17(a)(3) stated:

      (3) Needles may be used in the practice of chiropractic under
      standards set forth by the Board but may not be used for procedures
      that are incisive or surgical.
             (A)    The use of a needle for a procedure is incisive if the
                    procedure results in the removal of tissue other than for
                    the purpose of drawing blood.
             (B)    The use of a needle for a procedure is surgical if the
                    procedure is listed in the surgical section of the CPT
                    Codebook.

      This Court affirmed the portion of the district court’s judgment invalidating

Rule 75.17(a)(3), concluding that needle EMG is an incisive procedure. See Tex.




                                          13
Med. Ass’n, 375 S.W.3d at 497. 24 In response to the Court’s decision, in 2013, the

Chiropractic Board repealed or amended several rules related to needle EMG that

were declared invalid by the district court, but declined to repeal Rule 75.17(a)(3)

and other rules authorizing needle use by chiropractors. That same year the

Chiropractic Board amended Rule 75.21 to specify that chiropractors must comply

with the chiropractic scope of practice when performing acupuncture.

       In January 2015, after the summary judgment hearing in this case, but before

the trial court’s judgment, the Chiropractic Board repealed Rules 75.17 and 75.21

as part of a non-substantive reorganization of its rules, then renumbered Rule 75.17

as Rules 78.13 and 78.15, and renumbered Rule 75.21 as Rule 78.14. See 40 Tex.

Reg. 376, 379 (2015). In the current version of the rules, Rule 78.13 provides that a

person practices chiropractic if he or she performs “nonsurgical, nonincisive

procedures,” and expressly authorizes needles to be used if they are not used for

incisive, surgical procedures. 22 TEX. ADMIN. CODE §§ 78.13(b)(1)(B), (b)(2).

Conversely, Rule 78.15 excludes from the practice of chiropractic “incisive or

surgical procedures.” Id. §§ 78.15(a)(1), (b)(1)(A), (b)(2)(A). Rule 78.13 also

narrowly defines an incision as “a cut or surgical wound; also, a division of the soft

24
   The Texas Medical Association also challenged rules related to other procedures, including
MUA. These rules were also invalidated by the district court. This Court affirmed most of the
district court’s judgment, including the portion invalidating the MUA rule, but remanded other
claims.




                                             14
parts made with a knife or hot laser,” id. § 78.13(a)(4), despite the fact that the

Chiropractic Chapter broadly defines an incisive procedure as an incision into “any

tissue, cavity, or organ by any person or implement,” TEX. OCC. CODE

§ 201.002(a)(3) (emphasis added).

          Thus, by crafting a definition of “incision” that is far narrower than the

Chiropractic Chapter’s broad definition of incisive, the Chiropractic Board has

enlarged the class of invasive procedures chiropractors are allowed to perform

beyond that allowed in the Chiropractic Chapter. Further, Rules 78.13(e)(2)(C) and

78.14 specifically authorize chiropractors to practice acupuncture in violation of

the Chiropractic Chapter and with minimal education and training “standards” for

the practice of acupuncture by chiropractors.

          The Association filed suit challenging the Chiropractic Board’s rules that

authorize chiropractors to practice acupuncture—former 22 Texas Administrative
                                                               25
Code §§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21,                  which are now 22 Texas
                                                                                   26
Administrative Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14.                       The parties

filed competing motions for summary judgment. After a hearing, the trial court

granted the Chiropractic Board’s motion and denied the Association’s motion.


25
     The rules repealed in January 2015 can be found in the record at CR 213-24.
26
     The new version of the rules is attached as App. B.




                                                  15
                         SUMMARY OF ARGUMENT
      The Court should invalidate the Chiropractic Board’s rules that authorize

chiropractors to practice acupuncture without a license from or oversight by the

Acupuncture Board because the chiropractic scope of practice does not include the

practice of acupuncture. See 22 TEX. ADMIN. CODE §§ 78.13(a)(4), (b)(2),

(e)(2)(C), 78.14. The Chiropractic Chapter limits the practice of chiropractic to

treatment of the musculoskeletal system and expressly prohibits chiropractors from

performing incisive procedures, except for diagnostic blood draws. Under

established principles of statutory construction, since the prohibition against

incisive procedures includes an exception for a needle used for one purpose, the

prohibition encompasses needles used for other purposes—including acupuncture.

      With a single-minded focus on purported legislative intent, the Chiropractic

Board has argued that the Legislature intended to exempt chiropractors practicing

acupuncture from the Acupuncture Chapter’s licensing requirements when it

amended the Acupuncture Chapter to define acupuncture as the “nonincisive”

insertion of an acupuncture needle. But the Legislature’s intent about an enactment

is expressed through the statutory language. And nothing in the Acupuncture

Chapter (or Chiropractic Chapter) grants chiropractors the authority to practice

acupuncture without a license from or oversight by the Acupuncture Board.

Further, even if it is appropriate to consider legislative history, the Chiropractic



                                        16
Board’s argument fails because the history does not support that the amendment

successfully authorized chiropractors to practice acupuncture without a license.

The Chiropractic Board’s interpretation of the Acupuncture Chapter and

Chiropractic Chapter is unreasonable and entitled to no deference.

       Alternatively, if Senate Bill 361’s amendment to the Acupuncture Chapter

expanded the scope of chiropractic as set forth in the Chiropractic Chapter to

include acupuncture, the statutory scheme is unconstitutional. First, it creates a

regime in which chiropractors can practice acupuncture with virtually no training

in the procedure while acupuncturists must complete extensive education and

training to become licensed. This violates the Texas Constitution’s prohibition

against preference for one school of medicine over another. See TEX. CONST. art.

XVI, § 31. Second, it violated the one-subject rule because that bill concerned the

continuation and functions of the Acupuncture Board, not the scope of the practice

of chiropractic. See id. art. III, § 35(a).

       Finally, the Chiropractic Board’s affirmative defense of limitations fails as a

matter of law. The Board urges that because it has for more than four years

illegally authorized chiropractors to practice acupuncture, the residual statute of

limitations in Texas Civil Practice and Remedies Code, Section 16.051 allows it to

continue to exceed its statutory authority and violate Texas law, daily and with

impunity. No court has applied the residual statute of limitations to an



                                              17
Administrative Procedures Act declaratory judgment action challenging the

validity of agency rules. But even if it applied, the four-year limitations period has

not expired because the Chiropractic Board amended the challenged rules in 2013

and 2015 and the rules are a continuing and ongoing violation of state law.

      The Association urges the Court to reverse and render judgment for the

Association declaring the Chiropractic Board’s rules authorizing chiropractors to

practice acupuncture are invalid or, alternatively, the statutory scheme authorizing

chiropractors to practice acupuncture is unconstitutional. In the further alternative,

if the Court believes any fact issue exists, the Association requests that the Court

remand for a new trial.

                                   ARGUMENT

                                     I.
      Because acupuncture is outside the statutory scope of
      chiropractic, the Chiropractic Board’s rules authorizing
      chiropractors to practice acupuncture without a license from the
      Acupuncture Board are invalid.

A.    The Chiropractic Board only has authority to adopt rules consistent
      with its statutory grant from the Legislature.
      An agency’s power to make rules is dependent on a valid statutory grant.

Pub. Util. Comm’n of Tex. v. City of Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310,

315 (Tex. 2001); R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685

(Tex. 1992). In determining whether rules were adopted or amended within an

agency’s statutory grant, a court must consider whether each rule (1) contravenes


                                         18
specific statutory language, (2) runs counter to the objectives of the underlying

statute, or (3) imposes additional burdens, conditions, or restrictions in excess of or

inconsistent with the statutory provisions. Physician Assistants Bus. Alliance of

Tex., LLC v. Tex. Med. Bd., No. 03-12-00735-CV, 2015 WL 681010, at *2 (Tex.

App.—Austin Feb. 13, 2015, no pet.); Tex. Med. Ass’n, 375 S.W.3d at 474; Tex

Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Examiners, 254 S.W.3d 714,

719 (Tex. App.—Austin 2008, pet. denied). “Absent specific or implied statutory

authority, an agency rule is void.” Physician Assistants Bus. Alliance, 2015 WL

681010, at *2.

      Further, though courts give great weight to an agency’s interpretation of a

statute, this deferential standard of review only applies if the language of a statute

is ambiguous, and courts give even less deference when legislative intent is at

issue. R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future and Clean Water,

336 S.W.3d 619, 625 (Tex. 2011); In re Smith, 333 S.W.3d 349, 356 (Tex. 2011).

Additionally, an agency’s construction of a statute must be reasonable. Tex.

Citizens for a Safe Future and Clean Water, 336 S.W.3d at 625. And notably, if an

agency attempts to regulate activities outside the scope of its statutory grant, the

rule is void regardless of how reasonable it may be. Pruett v. Harris Cnty. Bail

Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008). Relatedly, a court grants no deference

to an agency’s interpretation in regard to issues that do not lie within the agency’s



                                          19
expertise. Rogers v. Tex. Bd. of Architectural Exam’rs, 390 S.W.3d 377, 384 (Tex.

App.—Austin 2011, no pet.).

      The Chiropractic Board’s rules authorizing chiropractors to practice

acupuncture contravene the plain statutory language and objectives of the

Chiropractic Chapter. And the Chiropractic Board’s effort to co-opt the

Acupuncture Chapter to redefine chiropractic is entitled to no deference because its

interpretation is unreasonable, and acupuncture is neither subject to the

Chiropractic Board’s regulation nor within its expertise.

B.    The Chiropractic Chapter unambiguously prohibits chiropractors from
      performing procedures involving needles, including acupuncture,
      because there is only one exception for needles—those used for
      diagnostic blood draws.

      1.     The Chiropractic Chapter broadly instructs that ‘incisive”
             encompasses incisions made by needles into the skin.
      If a statute is unambiguous, a court looks no further beyond the literal text.

Physician Assistants Bus. Alliance, 2015 WL 681010, at *2. The Chiropractic

Chapter defines, without ambiguity, what is “chiropractic.” A person practices

chiropractic if the person (1) “uses objective or subjective means to analyze,

examine, or evaluate the biomechanical condition of the spine and musculoskeletal

system of the human body,” or (2) “performs nonincisive, nonsurgical procedures,

including adjustment and manipulation, to improve the subluxation complex or the

biomechanics of the musculoskeletal system.” TEX. OCC. CODE § 201.002(b).



                                         20
“Incisive,” in turn, is defined as “making an incision into any tissue, cavity, or

organ by any person or implement,” with one exception for “the use of a needle for

the purpose of drawing blood for diagnostic testing.” Id. § 201.002(a)(3).

       Acupuncture is an invasive procedure in which acupuncturists use needles to

penetrate skin. The Chiropractic Chapter specifically instructs that incisive

procedures include those procedures in which an incision is made into any tissue,

cavity, or organ by any person or implement. Id. § 201.002(a)(3). Skin is both a

tissue and an organ, 27 and a needle is an “implement” for making an incision.28

Thus, a needle penetrating skin is an incisive procedure expressly prohibited by the

Chiropractic Chapter. 29

       2.     Statutory construction principles confirm that the Chiropractic
              Chapter prohibits all needle use except for needles used for
              diagnostic blood draws.
       The legal question raised in this case was not answered by this Court’s

decision in Texas Medical Association. The Court noted that differences might
27
       See    Merriam-Webster     Dictionary,    available      at     http://www.merriam-
webster.com/dictionary/skin;    https://www.aad.org/dermatology-a-to-z/for-kids/about-skin;
http://www.webmd.com/skin-problems-and-treatments/picture-of-the-skin.
28
   Dictionary.com, available at http://dictionary.reference.com/browse/implement) (defining
“implement” as an article used in some activity, especially an instrument, tool, or utensil).
29
   Indeed, Yvette Yarbrough, the Executive Director of the Chiropractic Board, admitted at a
2012 Chiropractic Board meeting that acupuncture is “in practice” an incisive procedure, and
that chiropractors may practice the procedure only by latching onto the definition of acupuncture
in the Acupuncture Chapter (discussed further below). Chiropractic Board July 11, 2012 ad hoc
meeting,                  at                1:46:00,                 available                 at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.




                                               21
exist between the “technical” and “ordinary” meanings of “incisive,” and that the

“technical” meaning may be limited to a “cut” (such as by an instrument with a

beveled edge) while the ordinary meaning may also include “piercing.” See 375

S.W.3d at 479-80. The Court observed that it could be such a distinction that

would explain how acupuncture needles would be capable of being inserted in a

“nonincisive” manner under the Acupuncture Chapter. Id. at 481.

      But the Court did not reach the question of whether “incisive” as used in the

Chiropractic Chapter— “making an incision into any tissue, cavity, or organ by

any person or implement”—is limited to “cutting” as stated in the Chiropractic

Board’s Rule 78.13(a)(4). The Medical Board did not challenge that definition in

the Chiropractic Board’s rules. Id. at 480. The Association challenges that

definition now and urges the Court to conclude, as a matter of statutory

construction, that the term “incisive” in the Chiropractic Chapter encompasses all

needle use (save the one listed exception for needles used for diagnostic blood

draws), regardless of whether a needle has a beveled edge.

      First, under the doctrine of expressio unius est exclusio, the fact that a needle

used for diagnostic purposes is the only exception to the Chiropractic Chapter’s

prohibition on “incisive” procedures conveys both the Legislature’s belief that

needles are incisive and intent to prohibit chiropractors from using needles for

other purposes:



                                         22
      •     The Legislature is presumed to choose its words carefully and include
            or exclude particular words purposefully. TGN-NOPEC Geophysical
            Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); Tex Orthopaedic
            Ass’n, 254 S.W.3d at 719.

      •     When the Legislature intends to include a particular term in a statute,
            it does so expressly. See Beeman v. Livingston, __ S.W.3d __, 2015
            WL 4072404, at *4 (Tex. June 26, 2015).

      •     When a statute lists specific exceptions to its application, the intent is
            clear that no other exceptions shall apply. Mid-Century Ins. Co. of
            Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999). This is especially true
            when the exception is of the same type expressly included—here,
            procedures involving needles. Fazio v. Cypress/GR Houston I, L.P.,
            403 S.W.3d 390, 421 (Tex. App.—Houston [1st Dist.] 2013, pet.
            denied); CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal.
            of Cities, 263 S.W.3d 448, 464 (Tex. App.—Austin 2008), aff’d 324
            S.W.3d 95 (Tex. 2010).

      •     A rule is void if it conflicts with a statute’s plain language, and a rule
            may not change the scope of a legislatively mandated exception.
            Physician Assistants Bus. Alliance, 2015 WL 681010, at *3; see also
            State Office of Pub. Util. Council v. Pub. Util. Comm’n of Tex., 131
            S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied).

      In adopting and later amending rules authorizing chiropractors to practice

acupuncture, the Chiropractic Board has read into its scope of practice statute an

additional exception to the prohibition on needle use that is not there. In the

process, the Chiropractic Board has impermissibly attempted to narrow the scope

of what is “incisive.” This Court has rejected similar efforts to read into scope of

practice statutes terms that are not included. See, e.g., Kuntz v. Khan, No. 03–10–

00160–CV, 2011 WL 182882, at *7-8 (Tex. App.—Austin 2011, no pet.).




                                        23
      Had the Legislature intended for chiropractors to practice acupuncture, it

could have listed acupuncture as a second exception to the prohibition against

incisive procedures. Or the Legislature could have defined chiropractic as

including acupuncture, along with the other practices expressly listed, such as the

adjustment and manipulation of the musculoskeletal system. See TEX. OCC. CODE

§§ 201.002(a)(3), (b). Indeed, legislation that would have authorized chiropractors

to practice acupuncture has been proposed and rejected on three occasions. See

Part I.C.2.b, infra. The Chiropractic Board may not imply the practice of

acupuncture into its scope of practice statute where it has been excluded.

      Second, it is also most consistent with the context of the Chiropractic

Chapter to interpret “incisive” as encompassing all procedures involving needles,

including acupuncture. Courts look to dictionary definitions for the meaning of a

term used in a statute and apply the definition that is most consistent with its use in

the statute. Beeman, 2015 WL 4072404, at *4; State v. $1,760.00 in U.S. Currency,

406 S.W.3d 177, 180 (Tex. 2013). And courts “rely on the doctrine of noscitur a

cociis (“it is known by its associates”) to avoid ascribing to a word a meaning so

broad that it is incommensurate with the statutory context. Beeman, 2015 WL

4072404, at *4; see also Ritchie v. Rupe, 443 S.W.3d 856, 869 (Tex. 2014).

Contextual clues come from the words immediately surrounding a term. See

Greater Houston P’ship v. Paxton, __ S.W.3d __, 2015 WL 3978138, at *5-7



                                          24
(Tex. June 26, 2015). When read in its contextual environment, the Chiropractic

Chapter’s prohibition on incisive procedures encompasses acupuncture because by

including blood draw needles within the definition of incisive, the Legislature

intended for “incisive” to encompass other needles as well.

         Third, the Court should not read the term “incisive” in a manner that leads to

absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008);

Tex. State Bd. of Chiropractic Examiners v. Abbott, 391 S.W.3d 343, 347 (Tex.

App.—Austin 2013, no pet.). An acupuncture needle is a needle and, as

Representative Janek observed during debate on Senate Bill 361, “a needle is a
           30
needle.” It is absurd to contemplate a statutory scheme in which it is necessary to

examine each needle used in a particular practice under a magnifying glass to

determine whether it has a beveled edge or not. See Jose Carreras, M.D., P.A. v.

Marroquin, 339 S.W.3d 68, 73 (Tex. 2011). This is not what the Legislature

intended when it amended the Chiropractic Chapter to prohibit incisive procedures.

See Tex. Med. Ass’n, 375 S.W.3d at 469 n.7.




30
     CR 493.




                                           25
      3.     Chiropractic is limited to specific techniques on discrete parts of
             the body while acupuncture is a separate medical profession in
             which practitioners treat the whole body.
      Additionally, while acupuncture treats and mitigates “a human condition,”

TEX. OCC. CODE § 205.001(2), chiropractic is limited to treating the

musculoskeletal system, id. § 201.002(b). Acupuncture cannot be included within

the statutory scope of chiropractic because acupuncture is not limited to treatment

of the musculoskeletal system and so, by its very nature, exceeds the scope of

chiropractic. Acupuncture is also a separate medical practice and profession, with

its own history and philosophical and theoretical underpinnings, entirely separate

from that of chiropractic.

      In adopting rules authorizing chiropractors to practice acupuncture, the

Chiropractic Board has authorized its licensees to practice an entirely different type

of medicine. The rules are akin to an Acupuncture Board rule authorizing

acupuncturists to practice chiropractic or dentistry—professions regulated by

separate regulatory boards with distinct licensing requirements. And the

Chiropractic Board has not only authorized its licensees to practice a different

medical profession, but has unilaterally exempted them from the education,

training, and licensing requirements mandated by the Legislature and the

regulatory board that does regulate that profession. The Chiropractic Board’s rules




                                         26
undermine and devalue the education and training of those who lawfully perform

acupuncture and put the public at risk of untrained practitioners.

      The fact that the Chiropractic Board has included a limitation in its

acupuncture rule that the “therapeutic modalities” used in performing acupuncture

“must comply with the chiropractic scope of practice as defined by Texas

Occupations Code § 201.002” does nothing to make the Board’s rules valid. See 22

TEX. ADMIN. CODE § 78.14(a). The limitation instead creates a circular argument:

the scope of the practice of chiropractic, as defined in the Chiropractic Chapter,

does not include acupuncture. The Board cannot simply “make” chiropractic

include acupuncture by purportedly limiting acupuncture to a statutory scope that

does not include acupuncture in the first place.

      In sum, because the Chiropractic Chapter unambiguously prohibits

chiropractors from using needles (except for diagnostic blood draws) and limits

chiropractic to treatment of the musculoskeletal system, and chiropractic and

acupuncture are entirely separate healthcare professions with discreet enabling

statutes, the Chiropractic Board exceeded its statutory authority in adopting, and

later amending, rules authorizing chiropractors to practice acupuncture. The Court

should render judgment for the Association and declare the rules invalid.




                                         27
C.    The Chiropractic Board’s interpretation of the Acupuncture Chapter as
      indirectly expanding the scope of chiropractic is entitled to no deference
      because it is unreasonable.

      1.    The Chiropractic Board’s interpretation contravenes the
            regulatory purpose of occupational statutes and creates a public
            health risk.
      The Chiropractic Board’s interpretation of its scope of practice statute is

entitled to no deference because it contravenes the purpose of the Occupation

Code’s regulation of healthcare professions and creates a public health risk. The

purpose of healthcare regulations is to protect public health and safety. Tex. State

Bd. of Barber Exam’rs v. Beaumont Barber College, Inc., 454 S.W.2d 729, 731

(Tex. 1970). This is why each chapter of the Occupations Code, including the

Acupuncture and Chiropractic Chapters, sets forth specific educational and training

requirements for a person to become licensed to perform a particular profession.

But by authorizing chiropractors to practice acupuncture without completing the

education and training requirements statutorily required for acupuncture, the

Chiropractic Board controverts the purpose of the Acupuncture Chapter and

creates a public health risk. Tex. Med. Ass’n, 375 S.W.3d at 474.

      For acupuncturists licensed by the Acupuncture Board under the

Acupuncture Chapter:




                                        28
       •      Acupuncturists are statutorily required to complete an intensive course
              of study to lawfully practice acupuncture. Before an acupuncturist
              may become licensed to practice acupuncture, a prospective licensee
              must complete at least 1,800 instructional hours from an accredited
              acupuncture school and satisfy at least two terms of a resident course
              of clinical instruction (although, as explained below, Acupuncture
              Board rules require acupuncture education to far exceed these
              statutory minimums). See TEX. OCC. CODE §§ 205.203, 205.206; 22
              TEX. ADMIN. CODE § 183.4. 31

       •      An applicant must attend an acupuncture school that is accredited or is
              a candidate for accreditation by the Accreditation Commission for
              Acupuncture and Oriental Medicine (“ACAOM”). See 22 TEX.
              ADMIN. CODE §§ 183.2(2), 183.4(a)(4). ACAOM requires a minimum
              of four years of oriental medicine and acupuncture study (a minimum
              of 146 semester credits or 2,625 hours, including 870 hours of clinical
              training). 32 All three acupuncture schools in Texas exceed these
                                       33
              minimum requirements.

       •      An applicant must have passed the Council of Colleges of
              Acupuncture and Oriental Medicine Clean Needle Technique course
              and practical examination. See id. § 184.4(a)(6). 34




31
  The Acupuncture Board’s rules establishing education and training requirements are attached
as App. E.
32
        See    ACAOM       Accreditation      Manual,     at        26,      available     at
http://www.acaom.org/documents/accreditation_manual_712.pdf.
33
   See AOMA Graduate School of Integrative Medicine, Graduate Program Catalog 2014-2015,
at 15, available at http://aoma.edu/assets/uploads/files/AOMA_MAcOM_2014-15-w.pdf; Texas
Health and Science University, Masters of Science in Acupuncture and Oriental Medicine
Curriculum, available at http://www.thsu.edu/our-programs/ms-aom-curriculum/; American
College of Acupuncture and Oriental Medicine, 2015-2016 Catalog, at 16-18, available at
http://acaom.edu/attachments/Catalog.pdf.
34
   See Council of Colleges of Acupuncture and Oriental Medicine Clean Needle Technique
Manual, Best Practices for Acupuncture Needle Safety and Related Procedures (2015), available
at http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf.




                                             29
       •      An applicant must sit for the full series of National Certification
              Commission for Acupuncture and Oriental Medicine (“NCCAOM”)
              examinations, the requirements of which parallel ACAOM program
                                                                                35
              criteria. See 22 TEX. ADMIN. CODE §§ 183.2(19), 183.4(a)(5), (6).

       •      Acupuncturists must complete seventeen hours of continuing
              education each year to enhance the licensee’s acupuncture knowledge,
              skills, and competence. This includes training in acupuncture,
              herbology, biomedicine, and ethics. TEX. OCC. CODE § 205.255; 22
              TEX. ADMIN. CODE § 183.20.

       In contrast, the Chiropractic Chapter does not include any statutorily

approved training or education requirements for chiropractors to practice

acupuncture—because it does not authorize chiropractors to practice acupuncture.

Rather, by rule, the Chiropractic Board has created a lackluster regime of

questionable education and credentialing requirements:

       •      Chiropractors must only complete a meager 100 hours of acupuncture
              education and training to practice the procedure, with no
              specifications as to the content of that training and no clinical training
              requirement—grossly inadequate as compared to the course of study
              mandated in the Acupuncture Chapter and Acupuncture Board rules.
              See 22 TEX. ADMIN. CODE § 78.14. 36

35
  See National Certification Commission of Acupuncture and Oriental Medicine Eligibility
Requirements, available at http://www.nccaom.org/applicants/eligibility-requirements.
36
    CR 248-49l see also generally NBCE, Acupuncture Examination, available at
http://mynbce.org/wp-content/uploads/2015/07/acu_2015.pdf. The Chiropractic Board denied at
the trial court that chiropractors may complete the 100 hours of instruction without a clinical
component because “no course without clinical instruction has been approved by the Board.” CR
249-50. Yet Parker University is a chiropractic college approved by the Board for providing
acupuncture training, and it does not require any clinical training in acupuncture. See Texas
Board of Chiropractic Examiners meeting on acupuncture, July 11, 2012, at 2:04-2:07, available
at http://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3; see also Parker University,
Texas State Board Approvals, available at http://ce.parker.edu/state-board-approvals/texas/.




                                              30
           •      Effective January 1, 2010, a chiropractor must successfully complete
                  either the standardized certification examination in acupuncture
                  offered by the National Board of Chiropractic Examiners (“NBCE”)
                  or the examination offered by the NCCAOM to practice acupuncture.
                  Id. § 78.14(d). As explained above, the NCCAOM examination is the
                  examination required by the Acupuncture Board to become a licensed
                  acupuncturist and requires at least 2,625 hours of training, but the
                  NBCE examination requires a mere 100 hours of classroom
                  instruction. 37

          •       The 100 hours of acupuncture instruction used to qualify for NBCE
                  certification in acupuncture is typically taught as continuing
                  education, not as for-credit coursework that is part of any degree
                  program or core curriculum. 38 The 100-hour “continuing education”
                  course in acupuncture may be taken while still training in
                  chiropractic—thus allowing students of chiropractic to learn an
                  entirely new discipline before even having completed the foundational
                  chiropractic curriculum. 39 Further, nothing prohibits chiropractors
                  from completing most of the course online. See id. § 78.14. 40

           •      Chiropractors need not complete any continuing education in
                  acupuncture. 41 Id.

           Importantly, removing chiropractors from the licensing requirements of the

Acupuncture Board also removes them from the Acupuncture Board’s oversight.

And the Chiropractic Board has admitted that it is not regulating the practice of


37
   See NBCE, Acupuncture Examination, at 3, available at http://mynbce.org/wp-
content/uploads/2015/07/acu_2015.pdf.
38
   For instance, at Parker University, the acupuncture course is a continuing education course.
See Parker University Continuing Education, Acupuncture Program–Basic, available at
http://ce.parker.edu/programs/acupuncture-program-basic/.
39
     See id. (allowing chiropractic students to enroll in the program).
40
     CR 248-49.
41
     CR 250.




                                                   31
acupuncture by chiropractors. 42 The Chiropractic Board does not require

chiropractors to receive a certificate or license endorsement from the Board to

practice acupuncture. Id. It also does not track how many chiropractors, and which

chiropractors, are practicing acupuncture and whether these chiropractors have

completed the Board’s minimal acupuncture training requirements. 43 The

Chiropractic Board has instead advised its licensees that it trusts that chiropractors

will “exercise reasonable care of the safety of patients” and has warned that any

chiropractor who performs acupuncture without training “does so at his or her own
        44
risk.” As the Sunset Advisory Committee has observed, the Chiropractic Board’s

position appears to be buyer beware: the Board declines to regulate the practice of

acupuncture by chiropractors while simultaneously authorizing them to perform

the procedure. 45

42
     CR 249-51.
43
  CR 249-51, 253. At the summary judgment hearing, the Chiropractic Board’s counsel did not
know the number either: “We have evidence that over 1,400—over 1,000—the number is not
100 percent clear—over 1,000 chiropractors in Texas do practice acupuncture as a part of their
practice.” Reporter’s Record (“RR”) 18.
44
   CR 284. At the summary judgment hearing, the Chiropractic Board’s counsel confirmed that
this is the Chiropractic Board’s stance: “We think chiropractors are responsible. They are going
to practice their profession in a safe way. If they think they need more than 100 hours of training
in order to incorporate acupuncture into their practice, they are going to receive that additional
training.” RR 28. And “we would think that a chiropractor who is incorporating acupuncture into
his practice is going to seek continuing education. It’s just not specifically required to be within
that particular scope. But it’s up to each individual chiropractor to ensure that they are practicing
their profession in a safe and effective manner.” RR 29.
45
     CR 577.




                                                32
       The consequence of the Chiropractic Board’s construction of the

Chiropractic Chapter (and the one word it latches onto in the Acupuncture

Chapter) is a potential threat to public safety and health. Chiropractors lack the

education and training the Legislature has determined are statutorily required for

the safe performance of acupuncture, and those under-trained practitioners are not

subject to oversight by either the Acupuncture Board or the Chiropractic Board.

See TEX. OCC. CODE §§ 205.203, 205.206; see also Andrews v. Ballard, 498 F.

Supp. 1038, 1054 (S.D. Tex. 1980) (“An acupuncture needle in unskilled hands

can cause serious damage.”); Commonwealth v. Schatzberg, 371 A.2d 544, 547

(Pa. Cmwlth. 1977) (chiropractors should not practice acupuncture because

“acupuncture can cause immediate and serious medical problems”); 46 see also City

of Houston v. Clark, 197 S.W.3d 314, 318 (Tex. 2006) (in construing a statute, a

court should consider the consequences of a particular construction).




46
   See also National Institute of Health’s National Center for Complementary and Integrative
Health,      Acupuncture:       What      You       Need     to    Know,      available    at
https://nccih.nih.gov/health/acupuncture/introduction#hed4 (advising that acupuncture is safe
when performed by experienced, well-trained practitioners, but can cause serious side effects
when improperly performed).




                                             33
      2.     It is unreasonable for the Chiropractic Board to rely on another
             profession’s scope of practice statute to allow its practitioners to
             practice a procedure that is prohibited under the Chiropractic
             Chapter.

             a.    The Chiropractic Board has impermissibly latched onto one
                   word (“nonincisive”) in the Acupuncture Chapter to
                   redefine its own scope of practice.
      One of the fundamental principles of administrative law is that because an

agency is a creature of the Legislature, the agency only has the powers expressly

stated in its governing statute. State Agencies v. R.R. Comm’n of Tex., 421 S.W.3d

690, 699 (Tex. App.—Austin 2014, no pet.). The agency may not create or

exercise what really amounts to a new or additional power. Id. And while an

agency possesses some implied powers that are necessary to fulfill its express

functions, it may not, “through the guise of implied powers, exercise what is

effectively a new power, or a power contrary to a statute.” Id.

      In the face of an unambiguous prohibition in the Chiropractic Chapter

against the use of needles, the Chiropractic Board has pursued an indirect route in

its crusade to allow chiropractors to insert needles into patients without adequate

training or oversight. The Board has inventively latched onto the definition of

acupuncture as the “nonincisive” insertion of acupuncture needles in the

Acupuncture Chapter to create an exception to the Chiropractic Chapter’s

prohibition against needle use. And the Chiropractic Board has contended that the

amendment to the Acupuncture Chapter’s definition of acupuncture was intended


                                         34
to create a “carve out” from that chapter so that chiropractors could practice

acupuncture without a license from or oversight by the Acupuncture Board. This is

patently unreasonable. But even if that was the Legislature’s intent, the Legislature

failed to accomplish this purpose. Nothing in the Chiropractic Chapter authorizes

the Chiropractic Board to use a definition in another chapter of the Occupations

Code to evade the plain limitations of its scope of practice statute. And there is no

authority supporting that a regulatory body may exempt its licensees from

obtaining a license to perform a medical profession regulated by another state

board.

         There are several reasons the Chiropractic Board’s novel theory fails. First,

chiropractors and the public would be precluded from determining the “real” scope

of chiropractic by consulting the Chiropractic Chapter. Instead, they would be

required to review the entire Occupations Code—and guess which parts also apply

to chiropractic. And it would not be enough to read the Occupations Code. As

discussed in the next section, because the Chiropractic Board primarily relies on

legislative debate in the enactment of Senate Bill 361 to support its unreasonable

interpretation, a person would also need to review legislative history, including

legislative debate, to glean what “chiropractic” actually is.

         Second, condoning one of the Chiropractic Board’s many attempts at

statutory manipulation would defeat an important purpose of occupational



                                           35
statutes—to put the public on notice of the permissible scope of a professional’s

practice and to protect the integrity of medical professions. Chiropractors are

prohibited from claiming to practice a profession they are not licensed to practice.

In Brooks v. Texas Medical Board, the Court recently concluded that because a

chiropractor’s website suggested that her practice was not limited to the evaluation

of the biomechanical condition of the spine and musculoskeletal system (i.e., the

practice of chiropractic), she was engaging in the unlicensed practice of medicine.

No. 03-14-00239-CV, 2015 WL 3827327, at *1, 5 (Tex. App.—Austin June 18,

2015, no pet. h.). In so holding, the Court adopted the Medical Board’s rationale

that “the lay public would be confused about the scope of her practice if she

omitted   words    defining    chiropractic   treatment,   such   as   ‘spinal’   or

‘musculoskeletal,’ from her website.” Id. at *4.

      The same rationale applies here. If a chiropractor cannot advertise that he

performs a procedure that is not truly “chiropractic,” then surely a chiropractor

cannot perform the procedure without a license from the agency that regulates the

procedure. See Tex. State Bd. of Public Accountancy v. Fulcher, 515 S.W.2d 950,

954 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d n.r.e.) (statutes regulating

the practice of professions are necessary to ensure practitioners possess the

“requisite degree of skill in learning in professions which affect the public” to

protect the public “against fraud [and] deception as the consequence of ignorance



                                         36
and incompetence”). The Court should not sanction the Chiropractic Board’s fast

and loose interpretation of the Chiropractic and Acupuncture Chapters, nor allow

the Board to devalue the profession of acupuncture in this manner.

            b.     Legislative history supports that the amendment to the
                   definition of acupuncture in the Acupuncture Chapter did
                   not grant the Chiropractic Board the authority to regulate
                   acupuncture.
      To support its stance that the amendment to the definition of acupuncture in

the Acupuncture Chapter was intended to allow chiropractors to practice

acupuncture without a license from or oversight by the Acupuncture Board, the

Chiropractic Board has heavily relied on comments made by an individual

legislator (Representative Gray) in committee during Senate Bill 361’s debate. The

Court should not be persuaded.

      It is well-established that comments and testimony by members of the

Legislature do not evince legislative intent. As the Texas Supreme Court has

repeatedly counseled, “a single statement by a single legislator does not evidence

legislative intent and does not determine legislative intent.” Robinson v. Crown

Cork & Seal Co., Inc., 335 S.W.3d 126, 191-92 (Tex. 2010); see also AT&T

Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co., 186 S.W.3d 528-29 (Tex. 2006). “The

Legislature does not speak through individuals—even its members—in committee

hearings, in bill analyses and reports, in legislative debate, or in pre- and post-

enactment commentary; it speaks through its enactments.” Entergy Gulf States,

                                        37
Inc. v. Summers, 282 S.W.3d 433, 447 (Tex. 2009) (Hecht, J., concurring). Further,

it is inappropriate to look to legislative history when statutory text is unambiguous.

City of Round Rock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013).

      Regardless, legislative history, including Representative Gray’s comments,

nonetheless counsels the opposite of what the Chiropractic Board asserts. The

Legislature has repeatedly declined to enact legislation authorizing chiropractors to

practice acupuncture under regulation by the Chiropractic Board. Before 1995, the

Chiropractic Chapter did not expressly prohibit chiropractors from performing

procedures involving needles, leading to disputes about whether those sorts of

practices were within the statutory scope of chiropractic. See Tex. Med. Ass’n, 375

S.W.3d at 469. To resolve those disputes, in 1995, the Legislature amended the

Chiropractic Chapter to explicitly prohibit chiropractors from performing “incisive,

surgical” procedures (with the exception of using needles for diagnostic blood

draws). See id. The impetus of this change was a floor amendment offered by

Representative Uher that contained the current limitation on nonincisive

procedures, but with broad exceptions for needle use, including for acupuncture

and needle EMG. Id. n.7. His amendment, however, was amended by

Representative Janek to strip these exceptions from the bill, leaving the narrow

exception for diagnostic blood draws. Id. When presenting this amendment,

Representative Janek stated that “[t]his amendment would take out any ability by



                                         38
the chiropractors to put needles into people.” Id. Representative Uher’s amendment

was ultimately adopted, but as circumscribed by Representative Janek’s

amendment.

          The next session, Representative Gray attempted to amend Senate Bill 361

(the Acupuncture Board’s sunset bill) to expressly authorize chiropractors to

practice acupuncture, but these amendments were stripped from the bill before
                                              47
enactment because they were not germane.           Instead, as ultimately enacted, the

Acupuncture Chapter was amended to define acupuncture as “nonincisive.” See

Act of May 29, 1997, 75th Leg., R.S., ch. 1170, § 1. Since Senate Bill 361’s

enactment, there has been further attempt to amend the Chiropractic Chapter to

authorize chiropractors to practice acupuncture under regulation by the

Chiropractic Board—and this legislation also failed to pass. See Tex. S.B. 1601,

82nd Leg., R.S. (2011).

          Thus, the Legislature has repeatedly rejected attempts to amend the

Chiropractic Chapter to include acupuncture within the scope of chiropractic, and

“[n]o court could justify putting into a statute by implication what both Houses of

the Legislature had expressly rejected by decisive votes.” Grasso v. Cannon Ball

Motor Freight Lines, 81 S.W.2d 482, 485 (Tex. Com. App. 1935); see also Tex.


47
     See supra, pp. 9-10.




                                         39
Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 23 (Tex. 1996)

(“courts should decline to infer a limitation in a statute that the Legislature has

explicitly rejected”); Transp. Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex. 1979)

(“Courts should be slow to put back that which the Legislature has rejected.”).

      Further, Representative Gray’s proposed amendments to the Chiropractic

Chapter in Senate Bill 361 to authorize chiropractors to practice acupuncture

without a license from the Acupuncture Board were stricken on points of order

because the amendments were not germane to the subject of the bill. The

Legislature’s germaneness rules mirror the Texas Constitution’s prohibition on

legislation containing more than one subject. Compare, e.g., Texas House Rules

for the 84th Legislature, Rule 4, § 41, and Rule 11, § 2, with TEX. CONST. art. III,

§ 35(a). As explained in Part II.B below, the fact that the Legislature could not

constitutionally authorize chiropractors to practice acupuncture in the Acupuncture

Board’s sunset bill negates any argument that the sunset bill’s change in the

definition of acupuncture impacted the practice of acupuncture by chiropractors.

“The Legislature cannot do by indirection what it cannot do directly.” See West




                                        40
Orange-Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W.3d 558, 600 (Tex. 2003)

(quoting Jernigan v. Finley, 38 S.W. 24, 26 (Tex. 1896)). 48

         Finally, Representative Gray’s statements that the Chiropractic Board has

relied on for support actually undermine the Board’s argument. Representative

Gray acknowledged during committee debate on Senate Bill 361 that amending the

definition of acupuncture in the Acupuncture Chapter would not enable

chiropractors to practice acupuncture without a license from the Acupuncture

Board. She explained that:

         The Senate bill included language that put [the practice of
         acupuncture by chiropractors] under the Acupuncture Board. … What
         the [House’s] amendments would do is put [the practice of
         acupuncture by chiropractors] under the Chiropractic Board but with
         certain guidelines. … [An amendment authorizing chiropractors to
         practice acupuncture] needs to be in the practice act as it relates to
         chiropractors and not [ ] under the Board of Acupuncture
                    49
         Examiners.




48
   The Chiropractic Board’s counsel stated at the summary judgment hearing that the
Chiropractic Board’s position is that Senate Bill 361 authorized chiropractors to practice
acupuncture without a license through the “back door” because “it was not as easy, politically” to
directly authorize them to do so. RR 40.
49
     CR 478-80, 483.




                                               41
Thus, post-Senate Bill 361, chiropractors practicing acupuncture must still obtain a

license from the Acupuncture Board and remain within the oversight of that

agency. 50

              c.     The Court should decline to read the Acupuncture Chapter
                     and Chiropractic Chapter in pari materia to create an
                     exemption for acupuncture in the Chiropractic Chapter.

       The Chiropractic Board has also attempted to utilize the doctrine of “in pari

materia” to justify using the definition of acupuncture in the Acupuncture Chapter

to inform the scope of the practice of chiropractic in the Chiropractic Chapter.

Extrinsic tools of statutory construction are not available when a statute is

unambiguous. Greater Houston P’ship, 2015 WL 3978138, at 5. But even if the

Court believes the relevant statutes are ambiguous, the Court should decline to use

this tool.

       First, the doctrine of in pari materia is inapplicable. Texas Government

Code, Section 311.026(b) codified this common-law doctrine, and the statute only

applies if a conflict between statutes is irreconcilable. Abbott, 391 S.W.3d at 348.

While it is true that courts read conflicting statutes together to harmonize them,

there is no conflict here. See Rodriguez v. Tex. Workforce Comm’n, 986 S.W.2d

781, 783 (Tex. App.—Corpus Christi 1999, pet. denied). One does not need to read

50
  Indeed, there are chiropractors who are dually licensed by the Chiropractic and Acupuncture
Boards and therefore lawfully practice acupuncture.




                                             42
the Acupuncture Chapter to determine the scope of chiropractic since that scope is

found solely in the Chiropractic Chapter. Thus, not only are the two chapters not

“irreconcilable,” there is no conflict at all because each chapter discreetly applies

to a different profession.

      Second, for two statutes that do not reference each other to be in pari

materia, they must have been enacted with the same object or purpose in mind.

See, e.g., Nat’l Media Corp. v. City of Austin, No. 03-12-00188-CV, 2014 WL

4364815, at *2 (Tex. App.—Austin Aug. 27, 2014, no pet.); Abbott, 391 S.W.3d at

348; Howlett v. Tarrant Cnty., 301 S.W.3d 840, 846 (Tex. App.—Fort Worth

2009, pet. denied). “The adventitious occurrence of like or similar phrases, or even

of similar subject matters, in laws enacted for wholly different ends will not justify

applying the doctrine.” Abbott, 391 S.W.3d at 349; see also In re JMR, 149 S.W.3d

239, 292 (Tex. App.—Austin 2004, no pet.). To determine whether two statutes

share a common purpose, courts must consider whether the statutes were clearly

written to achieve the same objectives. See In re JMR, 149 S.W.3d at 292-94

(emphasis added); Abbott, 391 S.W.3d at 350. And if two statutes were enacted

“many years apart for different purposes and objectives,” they are not to be read in

pari materia. DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 410 (Tex. App.—

Dallas 2010, pet. denied).




                                         43
      Based on these principles, this Court has refused to read in pari materia

separate statutory or regulatory provisions that do not clearly share the same

purpose. See In re JMR, 149 S.W.3d at 294 (trespass statute in the Penal Code and

trespass statute in the Education Code could not be read in pari materia because

one was intended to protect a property interest while the other was intended to

protect the safety of those on school grounds); National Media Corp., 2014 WL

4364815, at *1-2 (City’s Zoning Code and Sign Regulations Code could not be

read in pari materia since they did not touch on the same subject, have the same

purpose, or relate to the same objective); Abbott, 391 S.W.3d at 347-49 (statutory

provisions regarding patient confidentiality did not share the same purpose as

provisions concerning the confidentiality of Chiropractic Board investigations and

so could not be read in pari materia).

      As in these cases, the legislation limiting chiropractic to “nonincisive”

procedures, and the later legislation limiting acupuncture to “nonincisive” needle

insertion, did not share the same object or purpose, nor were they enacted during

the same legislative session. To the contrary, the legislation limiting chiropractic to

nonincisive procedures (except for diagnostic blood draws) was enacted to prohibit

chiropractors from performing procedures involving needles. See Tex. Med. Ass’n,

375 S.W.3d at 469 n.7, 477-78. The legislation limiting acupuncture to the

nonincisive insertion of an acupuncture needle was enacted as part of the



                                          44
Acupuncture Board’s sunset bill—not as part of any legislation concerning

chiropractic. The Chiropractic Board may not apply an amendment to the

Acupuncture Chapter to end-run the Chiropractic Chapter’s prohibition against

needle use.

D.     The Chiropractic Board’s interpretation of the Acupuncture Chapter is
       entitled to no deference because the Chiropractic Board’s expertise is
       chiropractic, not acupuncture.
       Because the Chiropractic Board’s expertise is chiropractic (not acupuncture),

its interpretation of the Acupuncture Chapter is entitled to no deference. Rogers,

390 S.W.3d at 384. To defer to the Chiropractic Board’s construction would be

akin to deferring to a conclusion by the Acupuncture Board that acupuncturists

may practice nursing or physical therapy without a license from the relevant

occupational board or the intensive education and training required for the practice.

Further, notably, the agencies that do possess expertise about the scope of the

practice of acupuncture—the Acupuncture Board and the Texas Medical Board

(which oversees the Acupuncture Board)—believe that the Acupuncture Chapter

does not broaden the scope of the practice of chiropractic to include acupuncture.

See Tex. Med. Ass’n, 375 S.W.3d at 477-78. 51 If the Court is going to grant

deference, it should defer to those agencies, not the Chiropractic Board.

51
  See also CR 401-02, 408-13, 762-64. The Attorney General declined to accept the
Acupuncture Board’s 2013 request for opinion due to the Texas Medical Association litigation.




                                             45
E.    The Chiropractic Board’s rules are invalid because they impermissibly
      allow chiropractors to practice acupuncture in violation of the
      Acupuncture Chapter.
      The Chiropractic Board’s rules are also invalid because they unlawfully

authorize chiropractors to practice acupuncture in violation of the Acupuncture

Chapter. To practice acupuncture, a person must hold a license issued by the

Acupuncture Board. See TEX. OCC. CODE § 205.201. The Acupuncture Chapter

specifically mandates that “a person may not practice acupuncture in this state

unless the person holds a license to practice acupuncture issued by the acupuncture

board under this chapter.” Id. § 205.201 (emphasis added). The only exception is

for healthcare professionals licensed under another statute of this state and acting

within the scope of the license. See id. § 205.003(a) (emphasis added).

      Thus, the only way a chiropractor is exempt from the requirements of the

Acupuncture Chapter is if the chiropractor is practicing within the scope of

chiropractic as defined in the chiropractor’s licensing statute: the Chiropractic

Chapter. Under the express terms of the Chiropractic Chapter, chiropractors are

prohibited from performing procedures involving needles, save for diagnostic

blood draws, and are limited to treating the musculoskeletal portion of the body.

See id. § 201.002. Within the scope of their licensing statute, chiropractors may not

practice acupuncture—which by its statutory definition requires the use of needles

and treats the entire body. Id. § 205.001(2).



                                          46
F.    The rules are invalid because they authorize chiropractors to engage in
      the unauthorized practice of medicine.
      The Chiropractic Board’s rules also authorize chiropractors to engage in the

unauthorized practice of medicine. Historically, only physicians could perform

most medical procedures, including chiropractic and acupuncture. See Thompson v.

Tex. State Bd. of Med. Exam’rs, 570 S.W.2d 123, 130 (Tex. App.—Tyler 1978,

writ refused n.r.e.); Teem v. State, 183 S.W. 1144, 1147-48 (Tex. Crim. App.

1916). Over time, the Legislature exempted various healthcare professionals,

including chiropractors, from adhering to the requirements of the Medical Practice

Act. But the Legislature has never severed the practice of acupuncture from its

historical roots as a practice of medicine under the authority of the Texas Medical

Board. See, e.g., Andrews, 498 F. Supp. at 1039-40. As a result, acupuncturists

continue to be subject to the supervision of the Texas Medical Board, though with

separate licensing requirements, and are not fully excluded from the scope of the

Medical Practice Act. See, e.g., TEX. OCC. CODE §§ 151.052, 205.101. Other states

similarly have historically considered acupuncture to constitute the practice of

medicine. See, e.g., People v. Roos, 514 N.E.2d 993, 996 (Ill. 1987). And many

courts—including in Texas—have held that a chiropractor’s practice of

acupuncture constitutes the unauthorized practice of medicine. See Kelley v.

Raguckas, 270 N.W.2d 665, 625-26 (Mich. App. 1978); Schatzberg, 371 A.2d at

46-47; State v. Rich, 339 N.E.2d 630, 197 (Ohio 1975); State v. Won, 528 P.2d


                                        47
594, 595-96 (Ore. App. 1974); Ex parte Halsted, 182 S.W.2d 479, 485 (Tex. Crim.

App. 1944).

      The Medical Practice Act excludes chiropractors from its scope and

requirements, but only to the extent chiropractors are engaged strictly in the

practice of chiropractic. See TEX. OCC. CODE §§ 151.002(13), 151.052; Tex.

Orthopaedic Ass’n, 254 S.W.3d at 717. “When engaged strictly in the practice of

chiropractic as defined by law, a licensed chiropractor is not engaging in the

unlicensed practice of medicine. But to the extent that a chiropractor exceeds the

statutory scope of chiropractic, she would subject herself to the Medical Practice

Act—and practice medicine unlawfully.” Brooks, 2015 WL 3827327, at *2.

      This Court has refused to allow an occupational board to adopt rules that

have the effect of allowing non-physician healthcare professionals to engage in the

unauthorized practice of medicine. For example, in Texas Orthopaedic

Association, the Court concluded that a rule adopted by the Texas State Board of

Podiatric Medical Examiners exceeded the statutory scope of podiatry because it

allowed podiatrists to treat parts of the body above the foot that were outside the

scope of podiatry training. Id. at 721. Consequently, the Court held that the rule

authorized podiatrists to engage in the unauthorized practice of medicine because

they were treating parts of the body “outside the traditional scope of podiatry

without satisfying the requirements of the Medical Practice Act.” Id. The rule



                                        48
exceeded the limited exemption from the Medical Practice Act by allowing

podiatrists to engage in acts that were not strictly the practice of podiatry. Id.

      Similarly, the Court has concluded that chiropractors were engaged in the

unauthorized practice of medicine by performing needle EMG, see Tex. Med.

Ass’n, 375 S.W.3d at 497, and by claiming to treat medical conditions like autism

that are not limited to the biomechanical condition of the spine or musculoskeletal

system, Brooks, 2015 WL 3827327, at *1, 5. The rules challenged in this lawsuit

likewise authorize chiropractors to engage in a practice that is not strictly the

practice of chiropractic and therefore are beyond the limited exception granted to

them by the Medical Practice Act.

      For all of these reasons, the Chiropractic Board’s rules authorizing

chiropractors to practice acupuncture are invalid. The Court should reverse and

render judgment for the Association.


                                           II.
      Alternatively, the statutory scheme purportedly authorizing
      chiropractors to practice acupuncture violates the Texas
      Constitution because the Legislature may not favor one school of
      medicine over another nor enact legislation containing more than
      one subject.
      In the alternative, the Association requests that the Court reverse and render

judgment for the Association and declare that (1) the statutory scheme purportedly

authorizing chiropractors to practice acupuncture with significantly less education



                                           49
or training in acupuncture than acupuncturists is invalid in violation of Texas

Constitution, Article XVI, Section 31; and (2) Senate Bill 361 violated the one-

subject rule in Texas Constitution, Article III, Section 35(a). See TEX. CIV. PRAC.

& REM. CODE §§ 37.004, 37.006; Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618,

622 (Tex. 2011) (per curiam).

A.    The statutory scheme purportedly authorizing chiropractors to practice
      acupuncture with significantly less education and training in
      acupuncture than licensed acupuncturists violates Texas Constitution,
      Article XVI, Section 31.
      The Texas Constitution broadly states: “The Legislature may pass laws

prescribing the qualifications of practitioners of medicine in this State, and to

punish persons for mal-practice, but no preference shall ever be given by law to

any schools of medicine.” See TEX. CONST. art. XVI, § 31 (emphasis added).

Texas courts have interpreted this provision to prohibit the Legislature from

unfairly and arbitrarily “preferring” one branch of medicine over another by

allowing one category of healthcare professionals to obtain licenses with less

burdensome conditions. See, e.g., Schlichting v. Tex. State Bd. of Medical Exam.,

310 S.W.2d 557, 564 (Tex. 1958); Wilson v. State Bd. of Naturopathic Examiners,

298 S.W.2d 946, 948-50 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.).

      In Schlichting, the Texas Supreme Court held that to allow one school of

medicine to be licensed on easier terms than those required for a similar practice of

medicine would violate article XVI, section 31. Id. at 564. And the violation is

                                         50
even more obvious when one group is allowed to practice without any license at

all, while practitioners of a similar form of medicine must be licensed on onerous

conditions. Id.; see also Wilson, 298 S.W.2d at 949-50.

      Indeed, the Court of Criminal Appeals has held that a broad interpretation of

the scope of chiropractic would violate this provision of the Constitution. The

Court considered the chiropractic statute in effect at that time and concluded:

      Assuming, then, that under the Act before us, the Legislature has set
      up, recognized, and defined chiropractic as a system, means, and
      method for the treatment of diseases and disorders of the human body,
      and that practitioners thereof are authorized to treat, by chiropractic,
      patients for diseases and disorders, it is evident that the Legislature
      has preferred such science and such practitioners over all others
      engaged in doing the same thing, that is, in treating the human body
      for diseases and disorders, because the chiropractor is not required
      to have the same educational qualifications, nor is he required, as a
      condition precedent to his right to so treat patients, to pass a
      satisfactory examination upon the same subjects that are required of
      all others similarly situated.

Ex parte Halsted, 182 SW.2d at 487 (emphasis added).

      Of course, as the Chiropractic Board argued at the trial court, this

constitutional provision is not applicable when chiropractors are strictly practicing

chiropractic because they are then not “practicing medicine.” TEX. OCC. CODE §§

151.002(13), 151.052; George D. Braden et al., The Constitution of the State of

Texas: An Annotated and Comparative Analysis, at 768 (1977). But if a

chiropractor does not practice in this strict manner, she is not only engaged in the




                                         51
practice of medicine, but the unauthorized practice of medicine. See, e.g., Tex.
                                                  52
Orthopaedic Ass’n, 254 S.W.3d at 717, 721.

       Here, the Acupuncture Chapter requires acupuncturists to complete

significant education and training in acupuncture in order to practice the procedure.

See TEX. OCC. CODE §§ 205.203, .206, .255. In contrast, if the Legislature has

allowed chiropractors to practice acupuncture, it has done so without requiring

them to complete any education or training in acupuncture. Under this statutory

scheme, the Legislature unconstitutionally prefers chiropractic over acupuncture.

B.     The legislation that purportedly authorized chiropractors to practice
       acupuncture violates the one-subject rule in Texas Constitution, Article
       III, Section 35(a).
       The Texas Constitution prohibits the Legislature from enacting a bill that

contains more than one subject. TEX. CONST. art. III, § 35(a). For a bill to pass

muster, its provisions must relate, directly or indirectly, to the same subject and

have a mutual connection. LeCroy v. Hanlon, 713 S.W.2d 335, 337 (Tex. 1986);

Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 601 (Tex. 1976); C. Hayman

Constr. Co. v. Am. Indem. Co., 471 S.W.2d 564, 566 (Tex. 1971). In other words,

to be valid, a provision must be germane to the subject of the bill. Jessen Assocs.,

52
  As explained previously, acupuncture treats any condition in the entire body and is not
expressly severed from the Medical Practice Act as a practice of medicine, and the Acupuncture
Board operates under the supervision of the Texas Medical Board. See, e.g., TEX. OCC. CODE
§§ 151.052, 205.001(2), .101; Andrews, 498 F. Supp. at 1039-40.




                                             52
531 S.W.2d at 601. As specific to amendments to a bill, to be germane, the subject

matter of an amendment must be reasonably related to the content of the original

act. Sommermeyer v. State, 713 S.W.2d 183, 184-85 (Tex. App.—Houston [14th

Dist.] 1986, pet. ref’d). The policy reason behind the one-subject rule is:

      [I]f the provisions of the law or section to be amended involve a
      subject different from that actually dealt with in the body of the
      amending act, a reading of the former will not disclose to the reader
      the true subject of the amending act but, on the contrary, will mislead
      him as to the latter.

Bd. of Water Eng’gs v. City of San Antonio, 283 S.W.2d 722, 727 (Tex. 1955).

      Senate Bill 361 was the Acupuncture Board’s sunset bill. It related to the

Acupuncture Board’s continuation and functions, as plainly indicated from the

bill’s caption and its content. If the bill additionally expanded the scope of the

practice of chiropractic, it violated the one-subject rule because it embraced two

subjects: the continuation and function of the Acupuncture Board and the statutory

scope of the practice of chiropractic.

      During Senate Bill 361’s journey through the Legislature, the bill amended

the Chiropractic Chapter’s scope of practice provision to authorize chiropractors to

practice acupuncture. See Part I.C.2.b, supra. But on the House floor, those

provisions were challenged and ultimately struck from the bill on germaneness

grounds because the chiropractic scope of practice has no relationship or

connection to the functions of the Acupuncture Board. The Legislature could not



                                          53
have expressly authorized chiropractors to practice acupuncture without violating

the one-subject rule—and it cannot do indirectly what it could not do directly. West

Orange-Cove, 107 S.W.3d at 600. Thus, if the amendment to the Acupuncture

Chapter authorizes chiropractors to practice acupuncture, it rendered that portion of

the bill unconstitutional.

                                       III.
      The Chiropractic Board’s statute of limitations defense fails as a
      matter of law.
      In its summary judgment motion, the Chiropractic Board urged that the

Association’s challenge is time-barred under the residual statute of limitations

found in the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.

CODE § 16.051. But as the Chiropractic Board acknowledged, no court has applied

the residual statute of limitations to a declaratory judgment action challenging the

validity of agency rules. Adopting the Chiropractic Board’s novel argument would

be a sea change in how Texas courts resolve allegations that an agency is

overstepping its statutory authority. And it would thwart the very purpose of the

statutory scheme the Chiropractic Board seeks to continue to violate.

      The Chiropractic Board urges that because it has for more than four years

illegally authorized chiropractors to practice acupuncture, it can continue to exceed

its statutory authority and violate Texas law, daily and with impunity. This is not

the law in Texas. In 2012, in Texas Medical Association, this Court invalidated the


                                         54
Chiropractic Board’s rules allowing chiropractors to perform needle EMG and

MUA—despite that the Chiropractic Board had been authorizing chiropractors to
                                                                53
practice needle EMG and MUA since at least the 1980s. 375 S.W.3d at 469, 481,

488. Likewise, in Texas Association of Psychological Associates v. Texas State

Board for Examiners of Psychologists, the Court reviewed whether the Psychology

Board’s rules exceeded its statutory authority—despite that the challenged rules

had been adopted more than four years earlier. 439 S.W.3d 597, 600-02 (Tex.

App.—Austin 2014, no pet.). And in Texas State Board of Examiners of Marriage

& Family Therapists v. Texas Medical Association, the Court reviewed and

affirmed a trial court judgment invalidating a rule that had been adopted in 1994.

458 S.W.3d 552, 554 (Tex. App.—Austin 2014, pet. filed).

       The residual statute of limitations should not be applied as urged by the

Chiropractic Board because limitations cannot be used to defeat the legislative

intent of a statute. See Heine v. Tex. Dept. of Pub. Safety, 92 S.W.3d 642, 648-49

(Tex. App.—Austin 2002, pet. denied). The Legislature enacted the statutes

regulating the various healthcare professions, including acupuncture and

chiropractic, to protect the public. To ensure practitioners possess the “requisite
53
  As the Sunset Commission observed in making recommendations regarding the Chiropractic
Board, the Chiropractic Board evaded rule challenges and obtaining stakeholder input by issuing
“opinions” that operated as de facto rules rather than adopting rules through the statutorily
required process. See CR 574-80. These opinions authorized MUA, needle EMG, and
acupuncture. Id.




                                              55
degree of skill in learning in [these] professions which affect the public,” the

Legislature mandates that individuals complete specified training, obtain a license,

and be overseen by the governing board for each specific healthcare profession.

See Tex. State Bd. of Public Accountancy, 515 S.W.2d at 954. This is essential for

healthcare professions because, absent adequate training, the very life and safety of

the public are at stake. See, e.g., Tex. State Bd. of Barber Exam’rs, 454 S.W.2d at

731.

       The Chiropractic Board’s limitations argument seeks to erase the protections

afforded by the Acupuncture Chapter. The Chiropractic Board argues that because

it has, for years, illegally allowed chiropractors to practice acupuncture with little

to none of the training hours required for acupuncturists, without a license from the

Acupuncture Board, and without oversight from any board, it should be allowed to

continue to do so into perpetuity—putting countless additional patients at risk of

being deceived about the qualifications of their practitioners, subject to

incompetent and ineffective treatment or, worse, harmed. The protective intent of

the Legislature in enacting the Acupuncture Chapter “should not be thwarted” by

applying Section 16.051 so as to give the Chiropractic Board a free pass to

continue violating Texas law. Heine, 92 S.W.3d at 649.

       Moreover, even if the Court concludes that the four-year residual statute of

limitations in Section 16.051 does govern challenges to an agency’s authority to



                                         56
adopt and enforce administrative rules, there are at least three reasons why this

Court should hold that the Association’s claims for declaratory and injunctive

relief are not time-barred. First, the Chiropractic Board is incorrect that the “most

recent action of the Chiropractic Board relevant to the lawsuit became four years

old on July 2, 2013.” To the contrary, in 2013, the Board adopted amended

versions of both of the challenged rules as specifically related to needle use and the

practice of acupuncture by chiropractors (then Rules 75.17 and 75.21); in January

2015, during this lawsuit, the Chiropractic Board again amended the Rules,

renumbering them as Rules 78.13 and 78.14. When an agency promulgates a new

version of a rule, any limitations period begins anew and a court has authority to

review the entire amended rule (not just specifically amended subparts of the rule).
                                                                            54
See State Office of Pub. Util. Counsel, 131 S.W.3d at 321.                       Thus, the

Association’s challenge to the amended rules would not be time-barred until 2019.

      Second, equally important is what the Chiropractic Board failed to amend in

2013 and 2015. In 2012, in Texas Medical Association, the Court upheld the trial

court’s decision invalidating the entirety of Rule 75.17(a)(3). See 375 S.W.3d at

481. But when the Chiropractic Board thereafter amended that rule, it did not

amend the portion of the rule that continues to allow needle-use by chiropractors.

54
   This case concerned a limitation provision in the Public Utility Regulatory Act, not the
residual limitations statute. See id. But the same reasoning is applicable here.




                                            57
And the Chiropractic Board did not amend the related Rules 75.17(b)(4),

75.17(e)(2)(C), and 75.21 (now Rules 78.13(a)(4), (b)(2), (e)(2)(C), 78.14, and

78.15(a)(1), (b)(1)(A), (b)(2)(A)), even though the court invalidated rules

permitting chiropractors to use needles. “A cause of action accrues and the

applicable limitations period begins to run when a wrongful act causes some legal

injury.” Nw. Austin Municipal Util. Dist. No. 1 v. City of Austin, 274 S.W.3d 820,

836-37 (Tex. App.—Austin 2008, pet. denied). The Chiropractic Board’s failure in

2013 and 2015 to bring its rules within this Court’s precedent constituted an

additional wrongful act that created a new controversy between the Chiropractic

Board and the Association. Thus, for this additional reason, the Association’s

claims would not be time-barred until 2019.

      Third, the residual statute of limitations in section 16.051 does not bar the

Association’s challenge that the Chiropractic Board’s rules are a continuing and

ongoing violation of state law. Id. at 836. The Board did not just authorize

chiropractors to practice acupuncture (without adequate training, a license from the

Acupuncture Board, or oversight) at some distant time in the past—it continues to

do so every day. Until the Chiropractic Board’s rules are amended or repealed, the

Board violates state law every day, “caus[ing] the accrual of the cause of action to

occur each day.” Dvorken v. Lone Star Indus., Inc., 740 S.W.2d 565, 567 (Tex.

App.—Fort Worth 1987, no writ). While Section 16.051 may bar the Association



                                        58
from seeking damages that accrued more than four years ago, it does not bar this

suit to determine if the challenged rules are currently in violation of Texas law.

Nw. Austin Municipal Util. Dist. No. 1, 274 S.W.3d at 837. Thus, the Association’s

challenge to the continuing violation is not time-barred.

         For each of these reasons, the Court should conclude that, if the trial court

granted summary judgment on the Chiropractic Board’s affirmative defense of

limitations, it erred.


                                       PRAYER
         The Texas Association of Acupuncture and Oriental Medicine prays that the

Court:

         (1)        reverse the trial court’s judgment, render judgment for the
                    Association, and declare invalid and enjoin 22 Texas
                    Administrative Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14
                    (previously §§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21));

         (2)        alternatively, reverse the trial court’s judgment, render judgment
                    for the Association, and declare that the statutory scheme created
                    by Senate Bill 361’s amendment to the Acupuncture Chapter is
                    unconstitutional because the Legislature may not favor one
                    school of medicine over another nor enact legislation containing
                    more than one subject; or

         (3)        in the further alternative, if the Court believes any fact issue
                    precludes rendition of judgment, reverse the trial court’s
                    judgment and remand for a new trial.

The Association further prays for any other relief to which it may be entitled.




                                           59
Respectfully submitted,


By: /s/ Craig T. Enoch
      Craig T. Enoch
       Texas Bar No. 00000026
       cenoch@enochkever.com
      Melissa A. Lorber
       Texas Bar No. 24032969
       mlorber@enochkever.com
      Shelby O'Brien
       Texas Bar No. 24037203
       sobrien@enochkever.com
      ENOCH KEVER PLLC
      600 Congress Avenue
      Suite 2800
      Austin, Texas 78701
      512.615.1200 Telephone
      512.615.1198 Fax
Attorneys for Texas Association of Acupuncture
and Oriental Medicine




        60
                      CERTIFICATE OF COMPLIANCE
      Appellant certifies that this Brief of Appellant (when excluding the caption,

identity of parties and counsel, table of contents, index of authorities, statement of

the case, statement of issues presented, signature, proof of service, certificate of

compliance, and appendix) contains 13,517 words.


                                           /s/ Craig T. Enoch
                                            Craig T. Enoch




                         CERTIFICATE OF SERVICE
       I hereby certify that, on August 10, 2015, the foregoing Brief of Appellant
Texas Association of Acupuncture and Oriental Medicine was served via
electronic service on the following:

Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov



                                           /s/ Craig T. Enoch
                                            Craig T. Enoch




                                         61
             No. 3-15-00262-CV
                            In the Court of Appeals
                        Third District of Texas — Austin


              TEXAS ASSOCIATION OF ACUPUNCTURE
                    AND ORIENTAL MEDICINE,
                                            Appellant,
                              v.

  TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE
YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,
                                          Appellees.


              On Appeal from 201st District Court, Travis County, Texas
                           Cause No. D-1-GN-14-000355




                             APPENDIX


A.   Trial Court’s Judgment

B.   22 Texas Administrative Code §§ 78.13-78.15

C.   Texas Occupations Code, Chapter 201

D.   Texas Occupations Code, Chapter 205

E.   22 Texas Administrative Code §§ 183.2, 183.4, 183.20

F.   Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Bd., 375 S.W.3d 464 (Tex.
     App.—Austin 2012, pet. denied)


                                         62
APPENDIX A
Appendix A to Brief of Appellant   Page 1 of 2
Appendix A to Brief of Appellant   Page 2 of 2
APPENDIX B
Texas Administrative Code                                           http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_...



          <<Prev Rule                                                                                             Next Rule>>



                            TITLE 22               EXAMINING BOARDS
                            PART 3                 TEXAS BOARD OF CHIROPRACTIC EXAMINERS
                            CHAPTER 78             RULES OF PRACTICE
                            RULE §78.13            Scope of Practice

          (a) Definitions. The following words and terms, when used in this section, shall have the following meanings,
          unless the context clearly indicates otherwise:

           (1) Board--The Texas Board of Chiropractic Examiners.

           (2) CPT Codebook--The American Medical Association's annual Current Procedural Terminology
          Codebook (2004). The CPT Codebook has been adopted by the Centers for Medicare and Medicaid Services
          of the United States Department of Health and Human Services as Level I of the common procedure coding
          system.

           (3) Cosmetic treatment--A treatment that is primarily intended by the licensee to address the outward
          appearance of a patient.

           (4) Incision--A cut or a surgical wound; also, a division of the soft parts made with a knife or hot laser.

           (5) Musculoskeletal system--The system of muscles and tendons and ligaments and bones and joints and
          associated tissues and nerves that move the body and maintain its form.

           (6) On-site--The presence of a licensed chiropractor in the clinic, but not necessarily in the room, while a
          patient is undergoing an examination or treatment procedure or service.

           (7) Practice of chiropractic--The description and terms set forth under Texas Occupations Code §201.002,
          relating to the practice of chiropractic.

            (8) Subluxation--A lesion or dysfunction in a joint or motion segment in which alignment, movement
          integrity and/or physiological function are altered, although contact between joint surfaces remains intact. It
          is essentially a functional entity, which may influence biomechanical and neural integrity.

           (9) Subluxation complex--A neuromusculoskeletal condition that involves an aberrant relationship between
          two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in
          the biomechanical and/or neuro-physiological reflections of these articular structures, their proximal
          structures, and/or other body systems that may be directly or indirectly affected by them.

          (b) Aspects of Practice.

           (1) A person practices chiropractic if they:

             (A) use objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the
          spine and musculoskeletal system of the human body; or


           Appendix B to Brief of Appellant                                                                           Page 1 of 9

1 of 6                                                                                                                     8/6/2015 1:40 PM
Texas Administrative Code                                            http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_...



            (B) perform nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the
          subluxation complex or the biomechanics of the musculoskeletal system.

           (2) Needles may be used in the practice of chiropractic under standards set forth by the Board but may not
          be used for procedures that are incisive or surgical.

           (3) This section does not apply to:

            (A) a health care professional licensed under another statute of this state and acting within the scope of
          their license; or

             (B) any other activity not regulated by state or federal law.

          (c) Examination and Evaluation.

           (1) In the practice of Chiropractic, licensees of this board provide necessary examination and evaluation
          services to:

             (A) Determine the bio-mechanical condition of the spine and musculoskeletal system of the human body
          including, but not limited to, the following:

              (i) the health and integrity of the structures of the system;

              (ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of the
          system;

              (iii) the existence of the structural pathology, functional pathology or other abnormality of the system;

             (iv) the nature, severity, complicating factors and effects of said structural pathology, functional
          pathology or other abnormality of the system;

              (v) the etiology of said structural pathology, functional pathology or other abnormality of the system; and

              (vi) the effect of said structural pathology, functional pathology or other abnormality of the system on
          the health of an individual patient or population of patients;

            (B) Determine the existence of subluxation complexes of the spine and musculoskeletal system of the
          human body and to evaluate their condition including, but not limited to:

              (i) The nature, severity, complicating factors and effects of said subluxation complexes;

              (ii) the etiology of said subluxation complexes; and

              (iii) The effect of said subluxation complexes on the health of an individual patient or population of
          patients;

             (C) Determine the treatment procedures that are indicated in the therapeutic care of a patient or condition;

            (D) Determine the treatment procedures that are contra-indicated in the therapeutic care of a patient or
          condition; and


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            (E) Differentiate a patient or condition for which chiropractic treatment is appropriate from a patient or
          condition that is in need of care from a medical or other class of provider.

           (2) To evaluate and examine individual patients or patient populations, licensees of this board are
          authorized to use:

             (A) physical examinations;

             (B) diagnostic imaging;

             (C) laboratory examination;

             (D) electro-diagnostic testing, other than an incisive procedure;

             (E) sonography; and

             (F) other forms of testing and measurement.

           (3) Examination and evaluation services which require a license holder to obtain additional training or
          certification, in addition to the requirements of a basic chiropractic license, include:

             (A) Performance of radiologic procedures, which are authorized under the Texas Chiropractic Act, Texas
          Occupations Code, Chapter 201, may be delegated to an assistant who meets the training requirements set
          forth under §78.1 of this title (relating to Registration of Chiropractic Radiologic Technologists).

             (B) Technological Instrumented Vestibular-Ocular-Nystagmus Testing may be performed by a licensee
          with a diplomate in chiropractic neurology and that has successfully completed 150 hours of clinical and
          didactic training in the technical and professional components of the procedures as part of coursework in
          vestibular rehabilitation including the successful completion of a written and performance examination for
          vestibular specialty or certification. The professional component of these procedures may not be delegated to
          a technician and must be directly performed by a qualified licensee.

          (d) Analysis, Diagnosis, and Other Opinions.

           (1) In the practice of chiropractic, licensees may render an analysis, diagnosis, or other opinion regarding
          the findings of examinations and evaluations. Such opinions could include, but are not limited to, the
          following:

           (A) An analysis, diagnosis or other opinion regarding the biomechanical condition of the spine or
          musculoskeletal system including, but not limited to, the following:

              (i) the health and integrity of the structures of the system;

              (ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of the
          system;

              (iii) the existence of structural pathology, functional pathology or other abnormality of the system;

             (iv) the nature, severity, complicating factors and effects of said structural pathology, functional
          pathology, or other abnormality of the system;


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              (v) the etiology of said structural pathology, functional pathology or other abnormality of the system; and

              (vi) the effect of said structural pathology, functional pathology or other abnormality of the system on
          the health of an individual patient or population of patients;

           (B) An analysis, diagnosis or other opinion regarding a subluxation complex of the spine or
          musculoskeletal system including, but not limited to, the following:

              (i) the nature, severity, complicating factors and effects of said subluxation complex;

              (ii) the etiology of said subluxation complex; and

              (iii) the effect of said subluxation complex on the health of an individual patient or population of
          patients;

            (C) An opinion regarding the treatment procedures that are indicated in the therapeutic care of a patient or
          condition;

             (D) An opinion regarding the likelihood of recovery of a patient or condition under an indicated course of
          treatment;

            (E) An opinion regarding the risks associated with the treatment procedures that are indicated in the
          therapeutic care of a patient or condition;

            (F) An opinion regarding the risks associated with not receiving the treatment procedures that are
          indicated in the therapeutic care of a patient or condition;

            (G) An opinion regarding the treatment procedures that are contraindicated in the therapeutic care of a
          patient or condition;

             (H) An opinion that a patient or condition is in need of care from a medical or other class of provider;

             (I) An opinion regarding an individual's ability to perform normal job functions and activities of daily
          living, and the assessment of any disability or impairment;

             (J) An opinion regarding the biomechanical risks to a patient, or patient population from various
          occupations, job duties or functions, activities of daily living, sports or athletics, or from the ergonomics of a
          given environment; and

             (K) Other necessary or appropriate opinions consistent with the practice of chiropractic.

          (e) Treatment Procedures and Services.

            (1) In the practice of chiropractic, licensees recommend, perform or oversee the performance of the
          treatment procedures that are indicated in the therapeutic care of a patient or patient population in order to:

            (A) Improve, correct, or optimize the biomechanical condition of the spine or musculoskeletal system of
          the human body including, but not limited to, the following:

              (i) the health and integrity of the structures of the musculoskeletal system; and


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             (ii) the coordination, balance, efficiency, strength, conditioning, and functional health and integrity of the
          musculoskeletal system;

             (B) Promote the healing of, recovery from, or prevent the development or deterioration of abnormalities
          of the biomechanical condition of the spine or musculoskeletal system of the human body including, but not
          limited to, the following:

              (i) the structural pathology, functional pathology, or other abnormality of the musculoskeletal system;

             (ii) the effects and complicating factors of any structural pathology, functional pathology, or other
          abnormality of the musculoskeletal system;

             (iii) the etiology of any structural pathology, functional pathology, or other abnormality of the
          musculoskeletal system; and

             (iv) the effect of any structural pathology, functional pathology, or other abnormality of the
          musculoskeletal system on the health of an individual patient or population of patients; and

            (C) Promote the healing of, recovery from, or prevent the development or deterioration of a subluxation
          complex of the spine or musculoskeletal system, including, but not limited to, the following:

              (i) the structural pathology, functional pathology, or other abnormality of a subluxation complex;

             (ii) the effects and complicating factors of any structural pathology, functional pathology, or other
          abnormality of a subluxation complex;

             (iii) the etiology of any structural pathology, functional pathology, or other abnormality of a subluxation
          complex; and

             (iv) the effect of any structural pathology, functional pathology, or other abnormality of a subluxation
          complex on the health of an individual patient or population of patients.

           (2) In order to provide therapeutic care for a patient or patient population, licensees are authorized to use:

             (A) osseous and soft tissue adjustment and manipulative techniques;

             (B) physical and rehabilitative procedures and modalities;

             (C) acupuncture and other reflex techniques;

             (D) exercise therapy;

             (E) patient education;

             (F) advice and counsel;

             (G) diet and weight control;

             (H) immobilization;

             (I) splinting;

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             (J) bracing;

            (K) therapeutic lasers (non-invasive, nonincisive), with adequate training and the use of appropriate safety
          devices and procedures for the patient, the licensee and all other persons present during the use of the laser;

             (L) durable medical goods and devices;

            (M) homeopathic and botanical medicines, including vitamins, minerals; phytonutrients, antioxidants,
          enzymes, nutraceuticals, and glandular extracts;

             (N) non-prescription drugs;

             (O) referral of patients to appropriate health care providers; and

             (P) other treatment procedures and services consistent with the practice of chiropractic.


          Source Note: The provisions of this §78.13 adopted to be effective January 29, 2015, 40 TexReg 379


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          <<Prev Rule                                                                                              Next Rule>>



                            TITLE 22               EXAMINING BOARDS
                            PART 3                 TEXAS BOARD OF CHIROPRACTIC EXAMINERS
                            CHAPTER 78             RULES OF PRACTICE
                            RULE §78.14            Acupuncture

          (a) Acupuncture, and the related practices of acupressure and meridian therapy, includes methods for
          diagnosing and treating a patient by stimulating specific points on or within the musculoskeletal system by
          various means, including, but not limited to, manipulation, heat, cold, pressure, vibration, ultrasound, light
          electrocurrent, and short-needle insertion for the purpose of obtaining a biopositive reflex response by nerve
          stimulation. All therapeutic modalities provided by Doctors of Chiropractic in Texas must comply with the
          chiropractic scope of practice as defined by the Texas Occupations Code §201.002.

          (b) In order to practice acupuncture, a licensee shall either:

           (1) successfully complete at least one-hundred (100) hours training in undergraduate or post-graduate
          classes in the use and administration of acupuncture provided by a bona fide reputable chiropractic school or
          by an acupuncture school approved by the Texas State Board of Acupuncture Examiners;

           (2) successfully complete either:

            (A) the national standardized certification examination in acupuncture offered by the National Board of
          Chiropractic Examiners; or

           (B) the examination offered by the National Certification Commission for Acupuncture and Oriental
          Medicine; or

           (3) successfully complete at least one-hundred (100) hours training in the use and administration of
          acupuncture in a course of study approved by the board.

          (c) Existing licensees that have been trained in acupuncture, that have been practicing acupuncture, and that
          are in good standing with the Texas Board of Chiropractic Examiners and other jurisdictions where they are
          licensed, may meet the requirements of subsection (b) of this section by counting each year of practice as ten
          hours of training in the use and administration of acupuncture.

          (d) Beginning on January 1, 2010, an applicant for licensure must successfully complete either the national
          standardized certification examination in acupuncture offered by the National Board of Chiropractic
          Examiners or the examination offered by the National Certification Commission for Acupuncture and
          Oriental Medicine in order to practice acupuncture. This requirement will supersede the provisions of
          subsection (b) of this section.


          Source Note: The provisions of this §78.14 adopted to be effective January 29, 2015, 40 TexReg 379


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          <<Prev Rule                                                                                            Next Rule>>



                            TITLE 22                EXAMINING BOARDS
                            PART 3                  TEXAS BOARD OF CHIROPRACTIC EXAMINERS
                            CHAPTER 78              RULES OF PRACTICE
                            RULE §78.15             Scope of Prohibitions

          (a) The practice of chiropractic does not include:

           (1) incisive or surgical procedures;

           (2) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
          prescription; or

           (3) the use of x-ray therapy or therapy that exposes the body to radioactive materials.

          (b) Aspects of Prohibition.

           (1) Examination and evaluation services, and the equipment used for such services, which are outside the
          scope of chiropractic practice include:

             (A) incisive or surgical procedures;

            (B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
          prescription;

             (C) the use of x-ray therapy or therapy that exposes the body to radioactive materials; or

            (D) other examination and evaluation services that are inconsistent with the practice of chiropractic and
          with the examination and evaluation services described under this subsection.

           (2) Analysis, diagnosis, and other opinions regarding the findings of examinations and evaluations which are
          outside the scope of chiropractic include:

             (A) incisive or surgical procedures;

            (B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
          prescription;

             (C) the use of x-ray therapy or therapy that exposes the body to radioactive materials; or

            (D) other analysis, diagnosis, and other opinions that are inconsistent with the practice of chiropractic and
          with the analysis, diagnosis, and other opinions described under this subsection.

           (3) The treatment procedures and services provided by a licensee which are outside of the scope of practice
          include:

             (A) incisive or surgical procedures;
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            (B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
          prescription;

             (C) the use of x-ray therapy or therapy that exposes the body to radioactive materials;

             (D) cosmetic treatments; or

            (E) other treatment procedures and services that are inconsistent with the practice of chiropractic and with
          the treatment procedures and services described under this subsection.

          (c) Questions Regarding Scope of Practice. Further questions regarding whether a service or procedure is
          within the scope of practice and this rule may be submitted in writing to the Board and should contain the
          following information:

           (1) a detailed description of the service or procedure that will provide the Board with sufficient background
          information and detail to make an informed decision;

           (2) information on the use of the service or procedure by chiropractors in Texas or in other jurisdictions;
          and

           (3) an explanation of how the service or procedure is consistent with either:

            (A) using subjective or objective means to analyze, examine, or evaluate the biomechanical condition of
          the spine and musculoskeletal system of the human body; or

            (B) performing nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve
          the subluxation complex or the biomechanics of the musculoskeletal system.


          Source Note: The provisions of this §78.15 adopted to be effective January 29, 2015, 40 TexReg 379


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           Appendix B to Brief of Appellant                                                                          Page 9 of 9

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APPENDIX C
 OCCUPATIONS CODE CHAPTER 201. CHIROPRACTORS                           Page 1 of 61




                                                OCCUPATIONS CODE

                                      TITLE 3. HEALTH PROFESSIONS

             SUBTITLE C. OTHER PROFESSIONS PERFORMING MEDICAL PROCEDURES

                                       CHAPTER 201. CHIROPRACTORS

                                    SUBCHAPTER A. GENERAL PROVISIONS

       Sec. 201.001. DEFINITIONS. In this chapter:
           (1) "Board" means the Texas Board of Chiropractic
  Examiners.
           (2) "Chiropractor" means a person licensed to practice
  chiropractic by the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.002. PRACTICE OF CHIROPRACTIC. (a) In this section:
           (1) "Controlled substance" has the meaning assigned to that
  term by Section 481.002, Health and Safety Code.
           (2) "Dangerous drug" has the meaning assigned to that term
  by Section 483.001, Health and Safety Code.
           (3) "Incisive or surgical procedure" includes making an
  incision into any tissue, cavity, or organ by any person or
  implement. The term does not include the use of a needle for the
  purpose of drawing blood for diagnostic testing.
           (4) "Surgical procedure" includes a procedure described in
  the surgery section of the common procedure coding system as adopted
  by the Centers for Medicare and Medicaid Services of the United
  States Department of Health and Human Services.
       (b) A person practices chiropractic under this chapter if the
  person:
           (1) uses objective or subjective means to analyze, examine,
  or evaluate the biomechanical condition of the spine and
  musculoskeletal system of the human body;




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           (2) performs nonsurgical, nonincisive procedures, including
  adjustment and manipulation, to improve the subluxation complex or
  the biomechanics of the musculoskeletal system;
           (3) represents to the public that the person is a
  chiropractor; or
           (4) uses the term "chiropractor," "chiropractic," "doctor
  of chiropractic," "D.C.," or any derivative of those terms or
  initials in connection with the person's name.
       (c) The practice of chiropractic does not include:
           (1) incisive or surgical procedures;
           (2) the prescription of controlled substances, dangerous
  drugs, or any other drug that requires a prescription; or
           (3) the use of x-ray therapy or therapy that exposes the
  body to radioactive materials.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 1, eff.
  September 1, 2005.


            Sec. 201.003.           APPLICATIONS AND EXEMPTIONS.   (a)   This chapter
  does not apply to a registered nurse licensed under Chapter 301, a
  vocational nurse licensed under Chapter 301, a person who provides
  spinal screening services as authorized by Chapter 37, Health and
  Safety Code, a physical therapist licensed under Chapter 453, or a
  massage therapist or a massage therapy instructor qualified and
  registered under Chapter 455 if:
           (1) the person does not represent to the public that the
  person is a chiropractor or use the term "chiropractor,"
  "chiropractic," "doctor of chiropractic," "D.C.," or any derivative
  of those terms or initials in connection with the person's name or
  practice; and
           (2) the person practices strictly within the scope of the
  license or registration held in compliance with all laws relating to
  the license and registration.
       (b) This chapter does not limit or affect the rights and powers
  of a physician licensed in this state to practice medicine.




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       (c) This section does not affect or prevent a student enrolled
  in a college of chiropractic in this state from engaging in all
  phases of clinical practice if the practice is:
           (1) part of the curriculum; and
           (2) conducted under the supervision of a licensed
  chiropractor or a licensed physician.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2003, 78th Leg., ch. 553, Sec. 2.014, eff. Feb. 1, 2004.


       Sec. 201.004. APPLICATION OF SUNSET ACT. The Texas Board of
  Chiropractic Examiners is subject to Chapter 325, Government Code
  (Texas Sunset Act). Unless continued in existence as provided by
  that chapter, the board is abolished and this chapter expires
  September 1, 2017.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 2, eff.
  September 1, 2005.


                     SUBCHAPTER B. TEXAS BOARD OF CHIROPRACTIC EXAMINERS

       Sec. 201.051. BOARD; MEMBERSHIP. (a) The Texas Board of
  Chiropractic Examiners consists of nine members appointed by the
  governor with the advice and consent of the senate as follows:
           (1) six chiropractors who are reputable practicing
  chiropractors and who have resided in this state for at least five
  years preceding appointment; and
           (2) three members who represent the public.
       (b) Appointments to the board shall be made without regard to
  the race, color, disability, sex, religion, age, or national origin
  of the appointee.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.




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       Sec. 201.052. MEMBERSHIP ELIGIBILITY. (a) A person is not
  eligible to serve as a member of the board if the person:
           (1) is a member of the faculty or board of trustees of a
  chiropractic school or a doctor of chiropractic degree program;
           (2) is a stockholder in a chiropractic school or college;
  or
                    (3)       has a financial interest in a chiropractic school or
  college.
       (b) A person is not eligible for appointment as a public member
  of the board if the person or the person's spouse:
           (1) is registered, certified, or licensed by an
  occupational regulatory agency in the field of health care;
           (2) is employed by or participates in the management of a
  business entity or other organization regulated by or receiving funds
  from the board;
           (3) owns or controls, directly or indirectly, more than a
  10 percent interest in a business entity or other organization
  regulated by or receiving funds from the board; or
           (4) uses or receives a substantial amount of tangible
  goods, services, or funds from the board, other than compensation or
  reimbursement authorized by law for board membership, attendance, or
  expenses.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 1, eff.
  June 15, 2007.


       Sec. 201.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In
  this section, "Texas trade association" means a cooperative and
  voluntarily joined statewide association of business or professional
  competitors in this state designed to assist its members and its
  industry or profession in dealing with mutual business or
  professional problems and in promoting their common interest.
       (b) A person may not be a member of the board and may not be a
  board employee employed in a "bona fide executive, administrative, or
  professional capacity," as that phrase is used for purposes of




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  establishing an exemption to the overtime provisions of the federal
  Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if:
           (1) the person is an officer, employee, or paid consultant
  of a Texas trade association in the field of health care; or
           (2) the person's spouse is an officer, manager, or paid
  consultant of a Texas trade association in the field of health care.
       (c) Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff.
  September 1, 2005.
       (d) A person may not be a member of the board or act as the
  general counsel to the board if the person is required to register as
  a lobbyist under Chapter 305, Government Code, because of the
  person's activities for compensation on behalf of a profession
  related to the operation of the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 3, eff.
  September 1, 2005.
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 36, eff.
  September 1, 2005.


            Sec. 201.054.           TERMS;       VACANCY.       (a)   Members of the board are
  appointed for staggered six-year terms. The terms of one-third of
  the members expire on February 1 of each odd-numbered year.
       (b) A person may not be appointed to serve more than two terms.
       (c) If a vacancy occurs because of the death or resignation of
  a board member, the governor shall appoint a replacement to fill the
  unexpired term.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.055. OFFICERS. (a) The governor shall designate a
  chiropractic member of the board as the board's president. The
  president serves in that capacity at the will of the governor.
       (b) The board shall elect one of its members as vice president
  and one of its members as secretary-treasurer at the first board
  meeting after the biennial appointment of board members.
       (c) Repealed by Acts 2003, 78th Leg., ch. 285, Sec. 31(31).


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  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2003, 78th Leg., ch. 285, Sec. 31(31), eff. Sept. 1, 2003.


            Sec. 201.056.           GROUNDS FOR REMOVAL.        (a)   It is a ground for
  removal from the board that a member:
           (1) does not have at the time of taking office the
  qualifications required by Sections 201.051 and 201.052(b);
           (2) does not maintain during service on the board the
  qualifications required by Sections 201.051 and 201.052(b);
           (3) is ineligible for membership under Section 201.052 or
  201.053;
                    (4)       cannot, because of illness or disability, discharge the
  member's duties for a substantial part of the member's term; or
           (5) is absent from more than half of the regularly
  scheduled board meetings that the member is eligible to attend during
  a calendar year without an excuse approved by a majority vote of the
  board.
       (b) The validity of an action of the board is not affected by
  the fact that it is taken when a ground for removal of a board member
  exists.
       (c) If the executive director has knowledge that a potential
  ground for removal exists, the executive director shall notify the
  president of the board of the potential ground. The president shall
  then notify the governor and the attorney general that a potential
  ground for removal exists. If the potential ground for removal
  involves the president, the executive director shall notify the next
  highest ranking officer of the board, who shall then notify the
  governor and the attorney general that a potential ground for removal
  exists.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 4, eff.
  September 1, 2005.




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       Sec. 201.057. PER DIEM; REIMBURSEMENT. (a) A board member is
  entitled to a per diem as set by the General Appropriations Act for
  each day the member engages in the business of the board.
       (b) A member may not receive reimbursement for travel expenses,
  including expenses for meals and lodging, other than transportation
  expenses as provided by the General Appropriations Act.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.058. MEETINGS. (a) The board shall hold regular
  meetings to examine applicants and transact business at least twice
  each year at the times and places determined by the board.
       (b) A special meeting may be held at the call of three board
  members.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.060. BOARD SEAL. The seal of the board consists of a
  five-point star with the words, "The State of Texas," and the words,
  "Texas Board of Chiropractic Examiners," around the margin.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.061.           TRAINING.          (a)      A person who is appointed to and
  qualifies for office as a member of the board may not vote,
  deliberate, or be counted as a member in attendance at a meeting of
  the board until the person completes a training program that complies
  with this section.
       (b) The training program must provide the person with
  information regarding:
           (1) this chapter and the board's programs, functions,
  rules, and budget;
           (2) the results of the most recent formal audit of the
  board;
           (3) the requirements of laws relating to open meetings,
  public information, administrative procedure, and conflicts of
  interest; and



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           (4) any applicable ethics policies adopted by the board or
  the Texas Ethics Commission.
       (c) A person appointed to the board is entitled to
  reimbursement, as provided by the General Appropriations Act, for the
  travel expenses incurred in attending the training program regardless
  of whether the attendance at the program occurs before or after the
  person qualifies for office.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 5, eff.
  September 1, 2005.


                                     SUBCHAPTER C. BOARD PERSONNEL

            Sec. 201.101.           DIVISION OF RESPONSIBILITIES.    The board shall
  develop and implement policies that clearly separate the policymaking
  responsibilities of the board and the management responsibilities of
  the executive director and the staff of the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 6, eff.
  September 1, 2005.


       Sec. 201.102. QUALIFICATIONS AND STANDARDS OF CONDUCT
  INFORMATION. The board shall provide as often as necessary to its
  members and employees information regarding their:
           (1) qualifications for office or employment under this
  chapter; and
           (2) responsibilities under applicable laws relating to
  standards of conduct for state officers or employees.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.103. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS.
  (a) The executive director or the executive director's designee
  shall develop an intra-agency career ladder program. The program




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  must require intra-agency postings of all nonentry level positions
  concurrently with any public posting.
       (b) The executive director or the executive director's designee
  shall develop a system of annual performance evaluations. All merit
  pay for board employees must be based on the system established under
  this subsection.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.104. EQUAL EMPLOYMENT OPPORTUNITY; REPORT. (a) The
  executive director or the executive director's designee shall prepare
  and maintain a written policy statement to ensure implementation of
  an equal employment opportunity program under which all personnel
  transactions are made without regard to race, color, disability, sex,
  religion, age, or national origin. The policy statement must
  include:
           (1) personnel policies, including policies relating to
  recruitment, evaluation, selection, application, training, and
  promotion of personnel, that are in compliance with Chapter 21, Labor
  Code;
           (2) a comprehensive analysis of the board workforce that
  meets federal and state guidelines;
           (3) procedures by which a determination can be made of the
  significant underuse in the board workforce of all persons for whom
  federal or state guidelines encourage a more equitable balance; and
           (4) reasonable methods to appropriately address those areas
  of significant underuse.
       (b) A policy statement prepared under Subsection (a) must be:
           (1) prepared to cover an annual period;
           (2) updated annually;
           (3) reviewed by the Commission on Human Rights for
  compliance with Subsection (a)(1); and
           (4) filed with the governor.
       (c) The governor shall deliver a biennial report to the
  legislature based on the information received under Subsection (b).
  The report may be made separately or as part of other biennial
  reports made to the legislature.




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  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                                    SUBCHAPTER D. BOARD POWERS AND DUTIES

       Sec. 201.151. GENERAL POWERS AND DUTIES. The board shall
  administer the purposes of and enforce this chapter.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.152. RULES. (a)                           The board may adopt rules and
  bylaws:
           (1) necessary to:
               (A) perform the board's duties; and
               (B) regulate the practice of chiropractic; and
           (2) relating to the board's proceedings and the board's
  examination of an applicant for a license to practice chiropractic.
       (b) The board shall adopt rules for the enforcement of this
  chapter. The board shall issue all rules based on a vote of a
  majority of the board at a regular or special meeting. The issuance
  of a disciplinary action or disciplinary order of the board is not
  limited by this subsection.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 7, eff.
  September 1, 2005.


       Sec. 201.1525. RULES CLARIFYING SCOPE OF PRACTICE OF
  CHIROPRACTIC. The board shall adopt rules clarifying what activities
  are included within the scope of the practice of chiropractic and
  what activities are outside of that scope. The rules:
           (1) must clearly specify the procedures that chiropractors
  may perform;
           (2) must clearly specify any equipment and the use of that
  equipment that is prohibited; and




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           (3) may require a license holder to obtain additional
  training or certification to perform certain procedures or use
  certain equipment.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 8, eff.
  September 1, 2005.


       Sec. 201.1526. DEVELOPMENT OF PROPOSED RULES REGARDING SCOPE OF
  PRACTICE OF CHIROPRACTIC. (a) This section applies to the process
  by which the board develops proposed rules under Section 201.1525
  before the proposed rules are published in the Texas Register and
  before the board complies with the rulemaking requirements of Chapter
  2001, Government Code. This section does not affect the duty of the
  board to comply with the rulemaking requirements of that law.
       (b) The board shall establish methods under which the board, to
  the extent appropriate, will seek input early in the rule development
  process from the public and from persons who will be most affected by
  a proposed rule. Methods must include identifying persons who will
  be most affected and soliciting, at a minimum, the advice and
  opinions of those persons. Methods may include negotiated
  rulemaking, informal conferences, advisory committees, and any other
  appropriate method.
       (c) A rule adopted by the board under Section 201.1525 may not
  be challenged on the grounds that the board did not comply with this
  section. If the board was unable to solicit a significant amount of
  advice and opinion from the public or from affected persons early in
  the rule development process, the board shall state in writing the
  reasons why the board was unable to do so.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 8, eff.
  September 1, 2005.


  This section was amended by the 84th Legislature. Pending publication
     of the current statutes, see H.B. 7, 84th Legislature, Regular
             Session, for amendments affecting this section.

       Sec. 201.153. FEES. (a) The board by rule shall set fees in
  amounts reasonable and necessary to cover the costs of administering


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  this chapter. The board may not set a fee in an amount that is less
  than the amount of that fee on September 1, 1993.
       (b) Each of the following fees imposed under Subsection (a) is
  increased by $200:
           (1) the fee for an annual renewal of a license;
           (2) the fee for issuance of a license to an out-of-state
  applicant;
           (3) the fee for an examination; and
           (4) the fee for a reexamination.
       (c) For each $200 fee increase collected under Subsection (b),
  $50 shall be deposited in the foundation school fund and $150 shall
  be deposited in the general revenue fund.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.                Amended
  by Acts 2003, 78th Leg., ch. 899, Sec. 2.


            Sec. 201.154.           CERTIFICATION FOR MANIPULATION UNDER ANESTHESIA
  PROHIBITED. Notwithstanding any other provision of this chapter, the
  board may not adopt a process to certify chiropractors to perform
  manipulation under anesthesia.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.155.           RULES RESTRICTING ADVERTISING OR COMPETITIVE
  BIDDING. (a) The board may not adopt rules restricting advertising
  or competitive bidding by a person regulated by the board except to
  prohibit false, misleading, or deceptive practices by that person.
       (b) The board may not include in rules to prohibit false,
  misleading, or deceptive practices by a person regulated by the board
  a rule that:
           (1) restricts the use of any advertising medium;
           (2) restricts the person's personal appearance or use of
  the person's voice in an advertisement;
           (3) relates to the size or duration of an advertisement by
  the person; or
           (4) restricts the use of a trade name in advertising by the
  person.



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  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.1555. FRAUD. (a) The board shall strictly and
  vigorously enforce the provisions of this chapter prohibiting fraud.
       (b) The board shall adopt rules to prevent fraud in the
  practice of chiropractic, including rules relating to:
           (1) the filing of workers' compensation and insurance
  claims; and
           (2) records required to be maintained in connection with
  the practice of chiropractic.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 9, eff.
  September 1, 2005.


       Sec. 201.156. BOARD DUTIES REGARDING COMPLAINTS.                (a)   The
  board by rule shall:
           (1) adopt a form to standardize information concerning
  complaints made to the board; and
           (2) prescribe information to be provided to a person when
  the person files a complaint with the board.
       (b) The board shall provide reasonable assistance to a person
  who wishes to file a complaint with the board.
       (c) The board by rule shall adopt procedures concerning:
                    (1)       the retention of information files on license holders;
  and
                    (2)       the expunction of files on license holders, including
  complaints, adverse reports, and other investigative information on
  license holders.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.157. IMMUNITY. In the absence of fraud, conspiracy,
  or malice, a member or employee of the board, a witness called to
  testify by the board, or a consultant or hearing officer is not
  liable in a civil action for any alleged injury, wrong, loss, or
  damage for any investigation, report, recommendation, statement,




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  evaluation, finding, order, or award made in the course of performing
  the person's official duties.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.158. BOARD COMMITTEES. (a) The board may appoint
  committees from its own members.
       (b) A committee appointed from the members of the board shall:
           (1) consider matters referred to the committee relating to
  the enforcement of this chapter and the rules adopted by the board;
  and
           (2) make recommendations to the board.
       (c) The board may delegate to a committee of the board an
  authority granted to the board under Section 201.505(c).

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.159. RECORDS. (a) The board shall preserve a record
  of its proceedings in a register that contains:
           (1) the name, age, place, and duration of residence of each
  applicant for a license;
           (2) the amount of time spent by the applicant in the study
  of chiropractic in respective doctor of chiropractic degree programs;
  and
           (3) other information the board desires to record.
       (b) The register shall show whether an applicant was rejected
  or licensed.
       (c) The information recorded in the register is prima facie
  evidence of the matters contained in the register. A certified copy
  of the register with the seal of the board is admissible as evidence
  in any court of this state.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 1420, Sec. 14.051(a), eff. Sept. 1,
  2001.
  Amended by:
       Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 2, eff.
  June 15, 2007.


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       Sec. 201.160. PAYMENT OF OTHER EXPENSES. The board shall pay
  the necessary expenses of an employee of the board incurred in the
  performance of the employee's duties.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.    Amended
  by Acts 2003, 78th Leg., ch. 285, Sec. 24, eff. Sept. 1, 2003.


       Sec. 201.161. APPROPRIATION FROM STATE TREASURY PROHIBITED.
  The legislature may not appropriate money, other than fees, from the
  state treasury for an expenditure made necessary by this chapter.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.163. POLICY ON TECHNOLOGICAL SOLUTIONS. The board
  shall implement a policy requiring the board to use appropriate
  technological solutions to improve the board's ability to perform its
  functions. The policy must ensure that the public is able to
  interact with the board on the Internet.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 10, eff.
  September 1, 2005.


       Sec. 201.164. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE
  RESOLUTION POLICY. (a) The board shall develop and implement a
  policy to encourage the use of:
           (1) negotiated rulemaking procedures under Chapter 2008,
  Government Code, for the adoption of board rules; and
           (2) appropriate alternative dispute resolution procedures
  under Chapter 2009, Government Code, to assist in the resolution of
  internal and external disputes under the board's jurisdiction.
       (b) The board's procedures relating to alternative dispute
  resolution must conform, to the extent possible, to any model
  guidelines issued by the State Office of Administrative Hearings for
  the use of alternative dispute resolution by state agencies.
       (c) The board shall designate a trained person to:




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           (1) coordinate the implementation of the policy adopted
  under Subsection (a);
           (2) serve as a resource for any training needed to
  implement the procedures for negotiated rulemaking or alternative
  dispute resolution; and
           (3) collect data concerning the effectiveness of those
  procedures, as implemented by the board.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 10, eff.
  September 1, 2005.


      SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES

            Sec. 201.201.           PUBLIC INTEREST INFORMATION.   (a)   The board
  shall prepare information of public interest describing the functions
  of the board and the procedures by which complaints are filed with
  and resolved by the board.
       (b) The board shall make the information available to the
  public and appropriate state agencies.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.202. PUBLIC PARTICIPATION. (a) The board shall
  develop and implement policies that provide the public with a
  reasonable opportunity to appear before the board and to speak on any
  issue under the board's jurisdiction.
       (b) The board shall prepare and maintain a written plan that
  describes how a person who does not speak English may be provided
  reasonable access to the board's programs.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.203. COMPLAINTS. (a) The board by rule shall
  establish methods by which consumers and service recipients are
  notified of the name, mailing address, and telephone number of the
  board for the purpose of directing complaints to the board. The
  board may provide for that notice:



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           (1) on each registration form, application, or written
  contract for services of a person regulated by the board; or
           (2) on a sign prominently displayed in the place of
  business of each person regulated by the board.
       (b) The board shall list with its regular telephone number any
  toll-free telephone number established under other state law that may
  be called to present a complaint about a health professional.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.204. RECORDS OF COMPLAINTS. (a) The board shall keep
  an information file about each complaint filed with the board. The
  board's information file must be kept current and contain a record
  for each complaint of:
           (1) each person contacted in relation to the complaint;
           (2) a summary of findings made at each step of the
  complaint process;
           (3) an explanation of the legal basis and reason for a
  complaint that is dismissed;
           (4) the schedule required under Section 201.205 and a
  notification of any change in the schedule; and
           (5) other relevant information.
       (b) Except as provided by Subsection (c), if a written
  complaint is filed with the board that the board has authority to
  resolve, the board, at least quarterly and until final disposition of
  the complaint, shall notify the parties to the complaint of the
  status of the complaint unless the notice would jeopardize an
  undercover investigation.
       (c) If a written complaint that the board has authority to
  resolve is referred to the enforcement committee, the board at least
  semiannually and until final disposition of the complaint, shall
  notify the parties to the complaint of the status of the complaint
  unless the notice would jeopardize an undercover investigation.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION
  AND DISPOSITION. (a) The board shall adopt rules concerning the


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  investigation of a complaint filed with the board. The rules adopted
  under this section must:
           (1) distinguish between categories of complaints;
           (2) require the board to prioritize complaints for purposes
  of determining the order in which they are investigated, taking into
  account the seriousness of the allegations made in a complaint and
  the length of time a complaint has been pending;
           (3) ensure that a complaint is not dismissed without
  appropriate consideration;
           (4) require that the board be advised of a complaint that
  is dismissed and that a letter be sent to the person who filed the
  complaint explaining the action taken on the complaint;
           (5) ensure that the person who filed the complaint has the
  opportunity to explain the allegations made in the complaint; and
           (6) prescribe guidelines concerning the categories of
  complaints that require the use of a private investigator and the
  procedures for the board to obtain the services of a private
  investigator.
       (b) The board shall:
           (1) dispose of a complaint in a timely manner; and
           (2) establish a schedule for conducting each phase of the
  complaint process that is under the control of the board not later
  than the 30th day after the date the board receives the complaint.
       (c) The board shall notify the parties to the complaint of the
  projected time requirements for pursuing the complaint.
       (d) The board shall notify the parties to the complaint of any
  change in the schedule not later than the seventh day after the date
  the change is made.
       (e) The executive director shall notify the board of a
  complaint that is unresolved after the time prescribed by the board
  for resolving the complaint so that the board may take necessary
  action on the complaint.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 11, eff.
  September 1, 2005.




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       Sec. 201.206. CONFIDENTIALITY OF INVESTIGATION FILES. (a) The
  board's investigation files are confidential, privileged, and not
  subject to discovery, subpoena, or any other means of legal
  compulsion for release other than to the board or an employee or
  agent of the board.
       (b) The board shall share information in investigation files,
  on request, with another state or federal regulatory agency or with a
  local, state, or federal law enforcement agency regardless of whether
  the investigation has been completed. The board is not required to
  disclose under this subsection information that is an attorney-client
  communication, an attorney work product, or other information
  protected by a privilege recognized by the Texas Rules of Civil
  Procedure or the Texas Rules of Evidence.
       (c) On the completion of the investigation and before a hearing
  under Section 201.505, the board shall provide to the license holder,
  subject to any other privilege or restriction set forth by rule,
  statute, or legal precedent, access to all information in the board's
  possession that the board intends to offer into evidence in
  presenting its case in chief at the contested case hearing on the
  complaint. The board is not required to provide:
           (1) a board investigative report or memorandum;
           (2) the identity of a nontestifying complainant; or
           (3) attorney-client communications, attorney work product,
  or other materials covered by a privilege recognized by the Texas
  Rules of Civil Procedure or the Texas Rules of Evidence.
       (d) Notwithstanding Subsection (a), the board may:
           (1) disclose a complaint to the affected license holder;
  and
           (2) provide to a complainant the license holder's response
  to the complaint, if providing the response is considered by the
  board to be necessary to investigate the complaint.
       (e) This section does not prohibit the board or another party
  in a disciplinary action from offering into evidence in a contested
  case under Chapter 2001, Government Code, a record, document, or
  other information obtained or created during an investigation.

  Added by Acts 2003, 78th Leg., ch. 329, Sec. 1, eff. Sept. 1, 2003.




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       Sec. 201.207. INSPECTIONS. (a) The board, during reasonable
  business hours, may:
           (1) conduct an on-site inspection of a chiropractic
  facility to investigate a complaint filed with the board; and
           (2) examine and copy records of the chiropractic facility
  pertinent to the inspection or investigation.
       (b) The board is not required to provide notice before
  conducting an inspection under this section.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 12, eff.
  September 1, 2005.


       Sec. 201.208. COOPERATION WITH TEXAS DEPARTMENT OF INSURANCE.
  (a) In this section, "department" means the Texas Department of
  Insurance.
       (b) This section applies only to information held by or for the
  department or the board that relates to a person who is licensed or
  otherwise regulated by the department or the board.
       (c) The department and the board, on request or on the
  department or board's own initiative, may share confidential
  information or information to which access is otherwise restricted by
  law.        The department and the board shall cooperate with and assist
  each other when either agency is conducting an investigation by
  providing information that is relevant to the investigation. Except
  as provided by this section, confidential information that is shared
  under this section remains confidential under law, and legal
  restrictions on access to the information remain in effect unless the
  agency sharing the information approves use of the information by the
  receiving agency for enforcement purposes. The provision of
  information by the board to the department or by the department to
  the board under this subsection does not constitute a waiver of
  privilege or confidentiality as established by law.
       (d) The department and the board shall develop and maintain a
  system for tracking investigations conducted by each agency with the
  cooperation and assistance of the other agency, including information
  on all disciplinary actions taken.
       (e) The department and the board shall collaborate on taking
  appropriate disciplinary actions to the extent practicable.


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  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 12, eff.
  September 1, 2005.


            Sec. 201.209.              INFORMATION ON STATUS OF CERTAIN INVESTIGATIONS.
  The board shall include in the annual financial report required by
  Section 2101.011, Government Code, information on all investigations
  conducted by the board with the cooperation and assistance of the
  Texas Department of Insurance and the Texas Workers' Compensation
  Commission during the preceding fiscal year.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 12, eff.
  September 1, 2005.


                                    SUBCHAPTER F. PEER REVIEW COMMITTEES

       Sec. 201.251. APPOINTMENT OF PEER REVIEW COMMITTEES; TERMS.
  (a) The board shall appoint local chiropractic peer review
  committees. Members of a local chiropractic peer review committee
  serve staggered terms of three years, with as near to one-third of
  the members' terms as possible expiring December 31 of each year.
       (b) The board may seek input from state chiropractic
  associations in selecting persons to appoint to a local peer review
  committee.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 13, eff.
  September 1, 2005.


       Sec. 201.252. COMMITTEE MEMBER ELIGIBILITY. (a) Only a
  chiropractor who has completed a program of peer review training
  approved by the board is eligible to serve on a chiropractic peer
  review committee.
       (b) A member of a local peer review committee may not be a
  consultant to or an employee of any company or carrier of health care
  insurance.



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       (c) The board shall establish requirements for peer review
  training programs that do not discriminate against any chiropractor.
  A peer review training program must include training in the
  investigation of complaints in accordance with this chapter and board
  rules.
       (d) The board by rule shall adopt additional requirements for
  eligibility to serve on a chiropractic peer review committee,
  including a requirement that a member have:
           (1) a clean disciplinary record; and
           (2) an acceptable record regarding utilization review
  performed in accordance with Article 21.58A, Insurance Code.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 14, eff.
  September 1, 2005.


       Sec. 201.253. EXECUTIVE PEER REVIEW COMMITTEE. (a) The board
  shall appoint an executive chiropractic peer review committee to
  direct the activities of the local committees. The executive peer
  review committee consists of six volunteer members. Members of the
  executive peer review committee serve staggered terms of three years,
  with one-third of the members' terms expiring December 31 of each
  year. The executive peer review committee shall elect a presiding
  officer from its members.
       (b) The executive peer review committee shall conduct hearings
  relating to disputes referred by a local peer review committee and
  shall make its recommendations based solely on evidence presented in
  the hearings.
       (c) A member of an executive peer review committee may not be a
  consultant to or an employee of any company or carrier of health care
  insurance.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 15, eff.
  September 1, 2005.




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       Sec. 201.254. DUTIES OF PEER REVIEW COMMITTEE WITH REGARD TO
  CERTAIN DISPUTES. (a) Each local chiropractic peer review committee
  shall:
           (1) review and evaluate chiropractic treatment and services
  in disputes involving a chiropractor and a patient or a person
  obligated to pay a fee for chiropractic services or treatment; and
           (2) mediate in a dispute involving a chiropractor and a
  patient or person obligated to pay a fee for chiropractic services or
  treatment.
       (b) Each local peer review committee shall report its findings
  and recommendations to the executive chiropractic peer review
  committee. A local peer review committee shall refer a dispute that
  is not resolved at the local level to the executive peer review
  committee.
       (c)            Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff.
  September           1, 2005.
       (d)            Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff.
  September           1, 2005.
       (e)            Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff.
  September           1, 2005.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 16, eff.
  September 1, 2005.
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 36, eff.
  September 1, 2005.


       Sec. 201.2545. COMPLAINT INVESTIGATION BY PEER REVIEW
  COMMITTEE. (a) The board may refer to a local chiropractic peer
  review committee for investigation a complaint regarding whether
  chiropractic treatment or services provided by a chiropractor were
  provided according to the standard of care in the practice of
  chiropractic.
       (b) In conducting an investigation of a referred complaint, the
  committee shall review the records and other evidence obtained by the
  staff of the board in the course of the staff's investigation of the
  complaint.


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       (c) The committee shall report to the board its findings
  regarding the complaint, including a statement of:
           (1) the standard of care in the practice of chiropractic
  governing the chiropractic treatment or services provided by the
  chiropractor;
           (2) whether the chiropractor met the standard of care in
  providing the treatment or services; and
           (3) the clinical basis for the committee's finding under
  Subdivision (2).
       (d) The board may request a member of the committee to attend
  an informal conference or testify at a contested case hearing.
       (e) The board, with input from the executive chiropractic peer
  review committee, shall adopt rules necessary to implement this
  section.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 17, eff.
  September 1, 2005.


       Sec. 201.2546. IMMUNITY; ELIGIBILITY TO PARTICIPATE IN
  COMMITTEE ACTIVITIES. (a) In the absence of fraud, conspiracy, or
  malice, a member of a peer review committee is not liable in a civil
  action for a finding, evaluation, recommendation, or other action
  made or taken by the member as a member of the committee or by the
  committee. The immunity granted by this subsection does not limit
  the operation of federal or state antitrust laws as applied to the
  conduct of a local or executive peer review committee that involves
  price fixing or any other unreasonable restraint of trade.
       (b) A member of a peer review committee may not participate in
  committee deliberations or other activities involving chiropractic
  services or treatment rendered or performed by the member.
       (c) Except for the express immunity provided by Subsection (a),
  this section does not deprive any person of a right or remedy, legal
  or equitable.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 17, eff.
  September 1, 2005.




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       Sec. 201.255. REQUEST FOR INFORMATION; REPORT TO BOARD ON
  DISPUTES MEDIATED. (a) The board may request from a chiropractic
  peer review committee information pertaining to actions taken by the
  peer review committee.
       (b) The executive chiropractic peer review committee shall file
  annually with the board a report on the disputes mediated by the
  local chiropractic peer review committees under Section 201.254
  during the preceding calendar year. The report must include:
           (1) the number of disputes referred to the committees;
           (2) a categorization of the disputes referred to the
  committees and the number of complaints in each category; and
           (3) the number of disputes resolved and the manner in which
  they were resolved.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 18, eff.
  September 1, 2005.


       Sec. 201.256.                  PUBLIC ACCESS TO INFORMATION REGARDING PEER
  REVIEW COMMITTEES.                  The board shall maintain on the board's Internet
  website information regarding local chiropractic peer review
  committees, including:
           (1) the services committees provide; and
           (2) the types of disputes committees mediate.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 19, eff.
  September 1, 2005.


                                    SUBCHAPTER G. LICENSE REQUIREMENTS

       Sec. 201.301. LICENSE REQUIRED. A person may not practice
  chiropractic unless the person holds a license issued by the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.




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       Sec. 201.302. LICENSING EXAMINATION APPLICATION. (a) An
  applicant for a license by examination must present satisfactory
  evidence to the board that the applicant:
           (1) is at least 18 years of age;
           (2) is of good moral character;
           (3) has completed 90 semester hours of college courses
  other than courses included in a doctor of chiropractic degree
  program; and
           (4) is either a graduate or a final semester student of a
  bona fide reputable doctor of chiropractic degree program.
       (b) An application for examination must be:
           (1) made in writing;
                    (2)       verified by affidavit;
                    (3)       filed with the secretary-treasurer of the board on a
  form prescribed by the board; and
           (4) accompanied by a fee.
       (c) Each applicant shall be given reasonable notice of the time
  and place of the examination.
       (d) Notwithstanding Subsection (a)(3), if the Council on
  Chiropractic Education or another national chiropractic education
  accreditation organization recognized by the board requires a number
  of semester hours of college courses other than courses included in a
  doctor of chiropractic degree program that is greater or less than
  the number of hours specified by that subsection to qualify for
  admission to a doctor of chiropractic degree program, the board may
  adopt the requirement of that organization if the board determines
  that requirement to be appropriate.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 20, eff.
  September 1, 2005.
       Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 3, eff.
  June 15, 2007.


       Sec. 201.303. EDUCATIONAL REQUIREMENTS. (a) To comply with
  the requirements of Section 201.302, the applicant must submit to the
  board a transcript of credits that certifies that the applicant has


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  satisfactorily completed at least the number of semester hours of
  college credits required by that section at a college or university
  that issues credits accepted by The University of Texas at Austin for
  a bachelor of arts or bachelor of science degree.
       (b) Repealed by Acts 2003, 78th Leg., ch. 329, Sec. 5.
       (c) The board may charge a fee of not more than $50 for
  verifying that the applicant has satisfied the requirements of this
  section.
       (d) A bona fide reputable doctor of chiropractic degree program
  that satisfies Section 201.302(a)(4) is one that:
           (1) has entrance requirements and a course of instruction
  as high as those of a better class of doctor of chiropractic degree
  programs in the United States;
           (2) maintains a resident course of instruction equivalent
  to:
               (A) not less than four terms of eight months each; or
               (B) not less than the number of semester hours required
  by The University of Texas for a bachelor of arts or bachelor of
  science degree;
           (3) provides a course of instruction in the fundamental
  subjects listed in Section 201.305(b); and
           (4) has the necessary teaching staff and facilities for
  proper instruction in all of the fundamental subjects listed in
  Section 201.305(b).

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2003, 78th Leg., ch. 329, Sec. 5.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 21, eff.
  September 1, 2005.
       Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 4, eff.
  June 15, 2007.


       Sec. 201.304. EXAMINATION REQUIREMENTS. (a) To receive a
  license, an applicant for a license by examination must pass:
           (1) the required and optional parts of the examination
  given by the National Board of Chiropractic Examiners, as required by
  and under conditions established by board rule; and


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           (2) an examination prepared by the board that tests the
  applicant's knowledge and understanding of the laws relating to the
  practice of chiropractic in this state.
       (b) The board shall periodically determine whether applicants
  who hold National Board of Chiropractic Examiners certificates have
  been adequately examined. If the board determines that those
  applicants have not been adequately examined, the board shall require
  those applicants to submit to an additional examination prepared by
  the board.
       (c) The board may give an examination during the applicant's
  last semester of college if the board receives evidence indicating
  the applicant has satisfactory grades. Immediately after the
  applicant graduates from chiropractic college, the applicant must
  forward to the board evidence of satisfactory completion of the
  applicant's course of study.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 721, Sec. 1, eff. Sept. 1, 2001.


       Sec. 201.305. EXAMINATION PROCEDURE. (a) Each examination for
  a license to practice chiropractic shall be conducted in the English
  language and in a fair and impartial manner.
       (b) An examination given under Section 201.304(a)(1) shall be
  conducted on practical and theoretical chiropractic and in the
  subjects of anatomy-histology, chemistry, bacteriology, physiology,
  symptomatology, pathology and analysis of the human spine, and
  hygiene and public health.
       (c) Applicants may be known to the examiners only by numbers,
  without a name or another method of identification on examination
  papers by which members of the board could identify an applicant,
  until after the general averages of the applicants' numbers in the
  class are determined and the licenses are granted or refused.
       (d) The board by rule shall ensure that the examination is
  administered to applicants with disabilities in compliance with the
  Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et
  seq.).




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  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 721, Sec. 2, eff. Sept. 1, 2001.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 22, eff.
  September 1, 2005.


       Sec. 201.306. EXAMINATION RESULTS. (a) The board shall notify
  each applicant of the results of an examination given by the board
  not later than the 30th day after the date the licensing examination
  is administered.
       (b) If requested by a person who fails an examination given by
  the board, the board shall review with the person the circumstances
  surrounding the adverse score.
       (c) To pass the examination under Section 201.304(a)(2), an
  applicant must score a grade of at least 75 percent.
       (d) All questions and answers from an examination given by the
  board, with the grades attached, authenticated by the signature of
  the examiner, shall be preserved in the executive office of the board
  for at least one year.
       (e) Each license shall be attested by the seal of the board and
  signed by all members of the board or a quorum of the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 721, Sec. 3, eff. Sept. 1, 2001.


       Sec. 201.307. REEXAMINATION. (a) An applicant who fails to
  pass a required examination may take another examination.
       (b) The board by rule shall establish the number of times an
  applicant may retake the examination required by Section 201.304(a)
  (1) or (b), as applicable. An applicant must pass the examination
  required by Section 201.304(a)(2) within three attempts. The board
  by rule shall establish the conditions under which an applicant may
  retake an examination. The board may require an applicant to fulfill
  additional educational requirements.
       (c) If the applicant makes a satisfactory grade on
  reexamination, the board shall grant to the applicant a license to
  practice chiropractic.



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            (d)       The board's decision under this section is final.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 721, Sec. 4, eff. Sept. 1, 2001.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 23, eff.
  September 1, 2005.


       Sec. 201.308. TEMPORARY LICENSE. (a) The board by rule may
  provide for the issuance of a temporary license.
       (b) The board by rule shall provide a time limit for the period
  a temporary license is valid.
       (c) The board may issue a temporary faculty license to practice
  chiropractic to a person as provided by this section. The person:
           (1) must hold a current chiropractic license that is
  unrestricted and not subject to a disciplinary order or probation in
  another state or a Canadian province;
           (2) may not hold a chiropractic license in another state or
  a Canadian province that has any restrictions, disciplinary orders,
  or probation;
           (3) must pass the examination required under Section
  201.304(a)(2);
           (4) must have been engaged in the practice of chiropractic:
               (A) for at least the three years preceding the date of
  the application under this section; or
               (B) as a chiropractic educator in a doctor of
  chiropractic degree program accredited by the Council on Chiropractic
  Education for at least the three years preceding the date of the
  application under this section; and
           (5) must hold a salaried faculty position of at least the
  level of assistant professor and be working full-time at:
               (A) Parker College of Chiropractic; or
               (B) Texas Chiropractic College.
       (d) A person is eligible for a temporary license under
  Subsection (c) if the person holds a faculty position of at least the
  level of assistant professor, the person works at least part-time at
  an institution listed in Subsection (c)(5), and:




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           (1) the person is on active duty in the United States armed
  forces; and
           (2) the person's practice under the temporary license will
  fulfill critical needs of the citizens of this state.
       (e) A chiropractor who is issued a temporary license under
  Subsection (c) must sign an oath on a form prescribed by the board
  swearing that the person:
           (1) has read and is familiar with this chapter and board
  rules;
           (2) will abide by the requirements of this chapter and
  board rules while practicing under the chiropractor's temporary
  license; and
                    (3)       will be subject to the disciplinary procedures of the
  board.
       (f) A chiropractor holding a temporary license under Subsection
  (c) and the chiropractor's chiropractic school must file affidavits
  with the board affirming acceptance of the terms and limits imposed
  by the board on the chiropractic activities of the chiropractor.
       (g) A temporary license issued under Subsection (c) is valid
  for one year.
       (h) The holder of a temporary license issued under Subsection
  (c) is limited to the teaching confines of the applying chiropractic
  school as a part of the chiropractor's duties and responsibilities
  assigned by the program and may not practice chiropractic outside of
  the setting of the chiropractic school or an affiliate of the
  chiropractic school.
       (i) The application for a temporary license under Subsection
  (c) must be made by the chiropractic school in which the chiropractor
  teaches and must contain the information and documentation requested
  by the board. The application must be endorsed by the dean of the
  chiropractic school or the president of the institution.
       (j) A chiropractor who holds a temporary license issued under
  Subsection (c) and who wishes to receive a permanent unrestricted
  license must meet the requirements for issuance of a permanent
  unrestricted license, including any examination requirements.
       (k) The board shall adopt:
           (1) rules governing the issuance of a renewal temporary
  faculty license, including a rule that permits a person licensed



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  under Subsection (c) to continue teaching while an application for a
  renewal temporary license is pending;
           (2) fees for the issuance of a temporary license and a
  renewal temporary license; and
           (3) an application form for temporary licenses and renewal
  temporary licenses to be issued under this section.
       (l) The fee for a renewal temporary license issued under
  Subsection (k)(1) must be less than the amount of the fee for a
  temporary license issued under Subsection (c).
       (m) A chiropractic school shall notify the board not later than
  72 hours after the time:
           (1) except as provided by Subdivision (2), a chiropractor
  licensed under Subsection (c) ceases to hold a full-time salaried
  position of at least the level of assistant professor at the school;
  and
           (2) a chiropractor described by Subsection (d) ceases to
  hold a part-time salaried position of at least the level of assistant
  professor at the school.
       (n) The board shall revoke a license issued under this section
  if the license holder no longer satisfies the requirements of this
  section.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2009, 81st Leg., R.S., Ch. 957 (H.B. 3450), Sec. 1, eff.
  September 1, 2009.


       Sec. 201.309. LICENSE ISSUANCE TO CERTAIN OUT-OF-STATE
  APPLICANTS. The board shall issue a license to practice chiropractic
  to an out-of-state applicant who:
           (1) submits a written application to the board on a form
  prescribed by the board, accompanied by the application fee set by
  the board and any other information requested by the board;
           (2) is licensed in good standing to practice chiropractic
  in another state or foreign country that has licensing requirements
  substantially equivalent to the requirements of this chapter;




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           (3) has not been the subject of a disciplinary action and
  is not the subject of a pending investigation in any jurisdiction in
  which the applicant is or has been licensed;
           (4) has graduated from a doctor of chiropractic degree
  program accredited by the Council on Chiropractic Education and
  approved by rule by the board;
           (5) has passed a national or other examination recognized
  by the board relating to the practice of chiropractic;
           (6) has passed the board's jurisprudence examination;
           (7) has practiced chiropractic:
               (A) for at least the three years immediately preceding
  the date of the application under this section; or
               (B) as a chiropractic educator in a doctor of
  chiropractic degree program accredited by the Council on Chiropractic
  Education for at least the three years immediately preceding the date
  of the application under this section; and
           (8) meets any other requirements adopted by rule by the
  board under this chapter.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2003, 78th Leg., ch. 899, Sec. 1.
  Amended by:
       Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 5, eff.
  June 15, 2007.


       Sec. 201.311. INACTIVE STATUS. (a) The board by rule shall
  adopt a system by which a license holder may place the license on
  inactive status. A license holder must apply for inactive status, on
  a form prescribed by the board, before the expiration date of the
  license.
       (b) A license holder whose license is on inactive status:
                    (1)       is not required to pay license renewal fees; and
                    (2)       may not perform an activity regulated under this
  chapter.
       (c) A license holder whose license is on inactive status may
  return to active practice by notifying the board in writing. The
  board shall remove the license holder's license from inactive status




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  after the holder pays an administrative fee and complies with any
  educational or other requirements established by board rules.
       (d) The board by rule shall establish a rule setting a limit on
  the time a license holder's license may remain on inactive status.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.312. REGISTRATION OF FACILITIES. (a) The board by
  rule shall adopt requirements for registering chiropractic facilities
  as necessary to protect the public health, safety, and welfare.
       (b) The rules adopted under this section must:
           (1) specify the registration requirements for a
  chiropractic facility;
           (2) prescribe the standards for the chiropractic facility
  registration program;
           (3) provide for the issuance of a separate certificate of
  registration to an owner of a chiropractic facility for each
  chiropractic facility owned by the owner; and
           (4) provide for the board to send notice to an owner of a
  chiropractic facility and to each chiropractor practicing in the
  facility of the impending expiration of the facility's certificate of
  registration before the expiration of the certificate.
       (c) The standards adopted under Subsection (b)(2) must be
  consistent with industry standards for the practice of chiropractic.
       (d) To register a                   chiropractic facility, the owner of the
  facility must:
           (1) file with                   the board a written application for
  registration; and
           (2) pay, with                   the application, a registration fee in an
  amount set by the board                  not to exceed $75.
       (e) The board may                   issue a certificate of registration only to a
  chiropractic facility that complies with the requirements of this
  section.
       (f) A certificate of registration under this section must be
  renewed annually. To renew the certificate, the certificate holder
  shall apply to the board and pay an annual fee equal to the amount of
  the registration fee under Subsection (d)(2).




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       (g) A person licensed to practice chiropractic in this state is
  subject to disciplinary action under this chapter if the person
  practices chiropractic in a chiropractic facility that the person
  knows is not registered under this section.
       (h) An owner of a chiropractic facility who violates this
  section or a rule adopted under this section is subject to
  disciplinary action by the board in the same manner as a license
  holder who violates this chapter or a rule adopted under this
  chapter.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 227, Sec. 1, eff. Sept. 1, 2001; Acts
  2003, 78th Leg., ch. 329, Sec. 2.


                   SUBCHAPTER H. ANNUAL REGISTRATION AND LICENSE RENEWAL

       Sec. 201.351. ANNUAL REGISTRATION. A chiropractor may not
  practice chiropractic in this state unless the chiropractor annually
  registers with the board not later than January 1 of each year.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.352. APPLICATION FOR ANNUAL REGISTRATION. (a) A
  person required to register shall:
           (1) file annually with the board a written application for
  registration; and
           (2) pay, with the application, an annual registration fee
  to the board.
       (b) The application must include:
           (1) the person's full name, age, post office address, and
  place of residence;
           (2) each place where the person is engaged in the practice
  of chiropractic;
           (3) the college of chiropractic from which the person
  graduated; and
           (4) the number and date of the person's license.
       (c) On receipt of the application and registration fee, the
  board shall determine whether the applicant is licensed to practice


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  chiropractic in this state based on the records of the board or other
  sources the board considers reliable.
       (d) If the board determines that the applicant is licensed to
  practice chiropractic in this state, the board shall issue an annual
  registration receipt certifying that the applicant has filed an
  application and paid the registration fee.
       (e) The registration receipt is not evidence in a prosecution
  for the unlawful practice of chiropractic under Section 201.605 that
  the person is lawfully entitled to practice chiropractic.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.353. LICENSE EXPIRATION DATE. (a) The board by rule
  may adopt a system under which licenses expire on various dates
  during the year.
       (b) For a year in which the license expiration date is changed,
  license fees payable on January 1 shall be prorated on a monthly
  basis so that each license holder pays only the portion of the fee
  that is allocable to the number of months during which the license is
  valid. On renewal of the license on the new expiration date, the
  total license renewal fee is payable.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


  This section was amended by the 84th Legislature. Pending publication
     of the current statutes, see H.B. 7, 84th Legislature, Regular
                         Session, for amendments affecting this section.

       Sec. 201.354. LICENSE RENEWAL. (a) A person may renew an
  unexpired license by paying the required renewal fee to the board
  before the expiration date of the license.
       (b) At least 30 days before the expiration of a person's
  license, the board shall send written notice of the impending license
  expiration to the person at the person's last known address according
  to the board's records.
       (c) The annual renewal fee applies to each person licensed by
  the board, even if the person is not practicing chiropractic in this
  state.


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       (d) A person whose license has been expired for 90 days or less
  may renew the license by paying to the board a renewal fee that is
  equal to the sum of 1-1/2 times the annual renewal fee set by the
  board under Section 201.153(a) and the increase in that fee required
  by Section 201.153(b). If a person's license has been expired for
  more than 90 days but less than one year, the person may renew the
  license by paying to the board a renewal fee that is equal to the sum
  of two times the annual renewal fee set by the board under Section
  201.153(a) and the increase in that fee required by Section 201.153
  (b).
       (e) Except as provided by Subsection (g) and Section 201.355, a
  person may not renew a license that has been expired for one year or
  more. The person may obtain a new license by submitting to
  reexamination and complying with the requirements and procedures for
  obtaining an original license.
       (f) A person who practices chiropractic without an annual
  renewal receipt for the current year practices chiropractic without a
  license.
       (g) A person may renew a license that has been expired for at
  least one year but not more than three years if:
           (1) the board determines according to criteria adopted by
  board rule that the person has shown good cause for the failure to
  renew the license; and
           (2) the person pays to the board:
               (A) the annual renewal fee set by the board under
  Section 201.153(a) for each year in which the license was expired;
               (B) an additional fee in an amount equal to the sum of:
                    (i) the annual renewal fee set by the board under
  Section 201.153(a), multiplied by the number of years the license was
  expired, prorated for fractional years; and
                    (ii) two times the annual renewal fee set by the
  board under Section 201.153(a); and
               (C) the increase in the annual renewal fee required by
  Section 201.153(b).

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 230, Sec. 1, eff. Sept. 1, 2001.
  Amended by:



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       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 24, eff.
  September 1, 2005.


       Sec. 201.355.                RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
  PRACTITIONER. (a)                 The board may renew without reexamination an
  expired license of a person who was licensed in this state, moved to
  another state or foreign country, and is currently licensed in good
  standing and has been in practice in the other state or foreign
  country for the two years preceding application.
       (b) The person must pay to the board a fee that is equal to the
  normally required renewal fee for the license.
       (c) For purposes of this section, a person is currently
  licensed if the person is licensed by another chiropractic licensing
  board recognized by the board. The board shall adopt requirements
  for recognizing another chiropractic licensing board that:
           (1) has licensing requirements substantially equivalent to
  the requirements of this chapter; and
           (2) maintains professional standards considered by the
  board to be equivalent to the standards under this chapter.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.                      Amended
  by Acts 2003, 78th Leg., ch. 329, Sec. 3.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 25, eff.
  September 1, 2005.


       Sec. 201.356.                CONTINUING EDUCATION.       (a)   The board by rule
  shall:
                    (1)       assess the continuing education needs of license
  holders;
           (2) adopt requirements for mandatory continuing education
  for license holders in subjects relating to the practice of
  chiropractic;
           (3) establish a minimum number of hours of continuing
  education required to renew a license; and
           (4) develop a process to evaluate and approve continuing
  education courses.



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       (b) The board may require license holders to attend continuing
  education courses specified by the board. The board shall adopt a
  procedure to assess a license holder's participation and performance
  in continuing education programs.
       (c) The board shall identify the key factors for the competent
  performance by a license holder of the license holder's professional
  duties.
       (d) The board shall notify license holders of approved
  continuing education courses at least annually.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                                    SUBCHAPTER I. PATIENT CONFIDENTIALITY

       Sec. 201.401. DEFINITION OF PATIENT. In this subchapter,
  "patient" means any person who consults or is seen by a chiropractor
  to receive chiropractic care.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.402. PATIENT CONFIDENTIALITY. (a) Communications
  between a chiropractor and a patient relating to or in connection
  with any professional services provided by a chiropractor to the
  patient are confidential and privileged and may not be disclosed
  except as provided by this subchapter.
       (b) Records of the identity, diagnosis, evaluation, or
  treatment of a patient by a chiropractor that are created or
  maintained by a chiropractor are confidential and privileged and may
  not be disclosed except as provided by this subchapter.
       (c) A person who receives information from the confidential
  communications or records, excluding a person listed in Section
  201.404(a) who is acting on the patient's behalf, may not disclose
  the information except to the extent that disclosure is consistent
  with the authorized purposes for which the information was first
  obtained.
       (d) The prohibitions of this section apply to confidential
  communications or records concerning any patient regardless of when
  the patient received the services of a chiropractor.


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       (e) The privilege of confidentiality may be claimed by the
  patient or chiropractor acting on the patient's behalf. The
  authority of a chiropractor to claim the privilege of confidentiality
  on behalf of a patient is presumed in the absence of evidence to the
  contrary.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.403. EXCEPTIONS TO CONFIDENTIALITY FOR ADMINISTRATIVE
  PROCEDURE. (a) Section 201.402 does not apply in a court or
  administrative proceeding:
           (1) brought by a patient against a chiropractor, including:
               (A) a malpractice proceeding; and
               (B) any criminal or license revocation proceeding in
  which the patient is a complaining witness and disclosure is relevant
  to the claims or defense of the chiropractor;
           (2) in which the patient or a person authorized to act on
  the patient's behalf submits a written consent to the release of
  confidential information, as provided by Section 201.405;
           (3) brought to substantiate and collect on a claim for
  chiropractic services rendered to the patient;
           (4) brought by the patient or a person on the patient's
  behalf who is attempting to recover monetary damages for any physical
  or mental condition, including death of the patient;
           (5) brought in connection with a disciplinary investigation
  of a chiropractor under this chapter, except as provided by
  Subsection (b);
           (6) brought in connection with a criminal investigation of
  a chiropractor if the board is participating or assisting in the
  investigation or proceeding by providing certain records obtained
  from the chiropractor, except as provided by Subsection (c); and
           (7) brought in connection with a criminal prosecution in
  which the patient is a victim, witness, or defendant except as
  provided by Subsection (d).
       (b) The board shall protect the identity of any patient whose
  chiropractic records are examined in connection with an investigation
  or proceeding described by Subsection (a)(5), excluding patients
  described by Subsection (a)(1) and patients who have submitted


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  written consent to the release of their chiropractic records as
  provided by Section 201.405.
       (c) The board shall protect the identity of any patient whose
  records are provided in connection with an investigation or
  proceeding described by Subsection (a)(6), excluding patients
  described by Subsection (a)(1) and patients who have submitted
  written consent to the release of their chiropractic records as
  provided by Section 201.405. The board does not authorize the
  release of any confidential information for the purpose of
  instigating or substantiating criminal charges against a patient.
       (d) In a proceeding described by Subsection (a)(7), records or
  communications are not discoverable until the court in which the
  prosecution is pending makes an in camera determination of relevancy.
  A determination of relevancy by a court under this subsection is not
  a determination of the admissibility of any record or communication.
       (e) Information is discoverable in a court or administrative
  proceeding in this state if the court or administrative body has
  jurisdiction over the subject matter of the proceeding.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.404.           EXCEPTIONS TO CONFIDENTIALITY FOR OTHER
  CIRCUMSTANCES. (a) In circumstances other than court or
  administrative proceedings, exceptions to Section 201.402 exist only
  for:
           (1) a governmental agency, if the disclosure is required or
  permitted by law except as provided by Subsection (b);
           (2) medical or law enforcement personnel, if the
  chiropractor determines that a probability of imminent physical
  injury to the patient, the chiropractor, or others exists or a
  probability of immediate mental or emotional injury to the patient
  exists;
           (3) qualified personnel for the purpose of management
  audits, financial audits, program evaluations, or research, under the
  conditions provided by Subsection (c);
           (4) those parts of the records reflecting charges and
  specific services performed, if necessary to collect fees for




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  services provided by a chiropractor, a professional association, or
  another entity qualified to render or arrange for services;
           (5) any person who possesses a written consent described by
  Section 201.405;
           (6) an individual, corporation, or governmental agency
  involved in paying or collecting fees for services performed by a
  chiropractor;
           (7) another chiropractor or personnel under the direction
  of the chiropractor who participate in the diagnosis, evaluation, or
  treatment of the patient; or
           (8) an official legislative inquiry of state hospitals or
  state schools under the conditions provided under Subsection (d).
       (b) A governmental agency shall protect the identity of any
  patient whose chiropractic records are examined under Subsection (a)
  (1).
       (c) Personnel described by Subsection (a)(3) may not directly
  or indirectly identify a patient in any report of research, audit, or
  evaluation or otherwise disclose a patient's identity in any manner.
       (d) Information released under Subsection (a)(8) may not
  include:
           (1) information or records that identify a patient or
  client for any purpose without proper consent given by the patient;
  and
           (2) records that were not created by the state hospital or
  school or its employees.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.405. CONSENT FOR RELEASE. (a) In this section,
  "chiropractic records" means any record relating to the history,
  diagnosis, treatment, or prognosis of a patient.
       (b) Consent for the release of confidential information must be
  in writing and signed by:
           (1) the patient;
           (2) a parent or legal guardian if the patient is a minor;
           (3) a legal guardian if the patient has been adjudicated
  incompetent to manage the patient's personal affairs;




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           (4) an attorney ad litem appointed for the patient, as
  authorized by:
               (A) Subtitle B, Title 6, Health and Safety Code;
               (B) Subtitle C, D, or E, Title 7, Health and Safety
  Code;
                    (C) Chapter XIII, Texas Probate Code;
                    (D) Chapter 107, Family Code; or
                    (E) another applicable provision; or
                (5) a personal representative if the patient is deceased.
            (c) The written consent must specify:
                (1) the information records covered by the release;
                (2) the reason or purpose for the release; and
                (3) the person to whom the information is to be released.
            (d) The patient or the person authorized to consent to
  disclosure under this section may withdraw consent to the release of
  any information. Withdrawal of consent does not affect any
  information disclosed before written notice of the withdrawal.
       (e) A person who receives information made confidential by this
  chapter may disclose the information to another only to the extent
  that disclosure is consistent with the authorized purposes for which
  consent to release the information was obtained.
       (f) A chiropractor shall furnish copies of chiropractic records
  or a summary or narrative of the records requested under a written
  consent for release of the information. The chiropractor shall
  furnish the information within a reasonable time. The patient or a
  person acting on the patient's behalf shall pay a reasonable fee for
  the information provided by the chiropractor. The chiropractor may
  delete confidential information about another person who has not
  consented to the release.
       (g) A chiropractor who determines that access to information
  requested under Subsection (f) would be harmful to the physical,
  mental, or emotional health of the patient may refuse to release the
  information requested under this section.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                                    SUBCHAPTER J.       PRACTICE BY LICENSE HOLDER




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       Sec. 201.451. DELEGATION TO ASSISTANTS. (a) The board by rule
  shall establish guidelines relating to the tasks and procedures that
  a chiropractor may delegate to an assistant.
       (b) A chiropractor who delegates a task or procedure under this
  section retains full responsibility for the task or procedure.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.452. USE OF X-RAY. (a) The board may require
  evidence of proper training and safety in the use of analytical and
  diagnostic x-ray in conformity with:
           (1) Chapter 401, Health and Safety Code; and
           (2) rules of the Texas Radiation Control Agency and the
  Texas Department of Health.
       (b) This section does not modify or amend:
           (1) Section 201.002 by enlarging the scope of the practice
  of chiropractic or the acts that a chiropractor is authorized to
  perform; or
           (2) Chapter 151.
       (c) The board shall implement any federal and state
  requirements relating to radiologic training of the employees of a
  chiropractor.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.453. MALPRACTICE SETTLEMENT INFORMATION AND EXPERT
  REPORTS. (a) The Texas Department of Insurance shall provide to the
  board any information received by the department regarding a
  settlement of a malpractice claim against a chiropractor.
       (b) An insurer who delivers or issues for delivery in this
  state professional liability insurance coverage to a chiropractor who
  practices in this state shall provide to the board a copy of any
  expert report served under Section 74.351, Civil Practice and
  Remedies Code, in a malpractice action against the chiropractor.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 27, eff.
  September 1, 2005.




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                                    SUBCHAPTER K. DISCIPLINARY PROCEDURES

       Sec. 201.501. DISCIPLINARY POWERS OF BOARD. (a) On a
  determination that a person has violated this chapter or a rule
  adopted by the board under this chapter, the board:
           (1) shall revoke or suspend the person's license, place on
  probation a person whose license has been suspended, or reprimand a
  license holder; or
           (2) may impose an administrative penalty.
       (b) If a license suspension is probated, the board may require
  the license holder to:
           (1) report regularly to the board on matters that are the
  basis of the probation;
           (2) limit practice to the areas prescribed by the board;
  or
           (3) continue or review continuing professional education
  until the license holder attains a degree of skill satisfactory to
  the board in those areas that are the basis of the probation.
       (c) In addition to other disciplinary actions authorized by
  this chapter, the board may require a license holder who violates
  this chapter to participate in a continuing education program. The
  board shall specify the continuing education programs that the
  license holder may attend and the number of hours that the license
  holder must complete.
       (d) Disciplinary proceedings of the board are governed by
  Chapter 2001, Government Code.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.502. GROUNDS FOR REFUSAL, REVOCATION, OR SUSPENSION OF
  LICENSE. (a) The board may refuse to admit a person to examinations
  and may revoke or suspend a license or place a license holder on
  probation for a period determined by the board for:
            (1) violating this chapter or a rule adopted under this
  chapter, including committing an act prohibited under Section
  201.5025;



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           (2) engaging in deception or fraud in the practice of
  chiropractic;
           (3) presenting to the board or using a license,
  certificate, or diploma or a transcript of a license, certificate, or
  diploma that was illegally or fraudulently obtained, counterfeited,
  or materially altered;
            (4) presenting to the board an untrue statement or a
  document or testimony that was illegally used to pass the
  examination;
            (5) being convicted of a crime involving moral turpitude or
  a felony;
            (6) procuring or assisting in the procuring of an abortion;
           (7) engaging in grossly unprofessional conduct or
  dishonorable conduct of a character likely to deceive or defraud the
  public;
           (8) having a habit of intemperance or drug addiction or
  another habit that, in the opinion of the board, endangers the life
  of a patient;
           (9) using an advertising statement that is false or that
  tends to mislead or deceive the public;
           (10) directly or indirectly employing or associating with a
  person who, in the course of the person's employment, commits an act
  constituting the practice of chiropractic when the person is not
  licensed to practice chiropractic;
           (11) advertising professional superiority, or advertising
  the performance of professional services in a superior manner, if
  that advertising is not readily subject to verification;
           (12) purchasing, selling, bartering, using, or offering to
  purchase, sell, barter, or use a chiropractic degree, license,
  certificate, or diploma or transcript of a license, certificate, or
  diploma in or relating to an application to the board for a license
  to practice chiropractic;
           (13) altering with fraudulent intent a chiropractic
  license, certificate, or diploma or transcript of a chiropractic
  license, certificate, or diploma;
           (14) impersonating or acting as proxy for another in an
  examination required by this chapter for a chiropractic license;
           (15) impersonating a licensed chiropractor;



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           (16) allowing one's chiropractic license to be used by
  another person to practice chiropractic;
           (17) being proved insane by a person having authority to
  make that determination;
           (18) failing to use proper diligence in the practice of
  chiropractic or using gross inefficiency in the practice of
  chiropractic;
           (19) failing to clearly differentiate a chiropractic office
  or clinic from another business or enterprise;
           (20) personally soliciting a patient or causing a patient
  to be solicited by the use of a case history of another patient of
  another chiropractor;
           (21) using for the purpose of soliciting patients an
  accident report prepared by a peace officer in a manner prohibited by
  Section 38.12, Penal Code; or
           (22) advertising using the term "physician" or
  "chiropractic physician" or any combination or derivation of the term
  "physician."
       (b) Notwithstanding Subsection (a)(22), the term "chiropractic
  physician" may be used for the express purpose of filing a claim for
  necessary services within the definition of chiropractic under this
  chapter if the billing for the services has universally applied,
  predetermined coding or description requirements that are a
  prerequisite to appropriate reimbursement.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 28, eff.
  September 1, 2005.


            Sec. 201.5025.           PROHIBITED PRACTICES BY CHIROPRACTOR OR LICENSE
  APPLICANT. (a) A chiropractor or an applicant for a license to
  practice chiropractic commits a prohibited practice if that person:
           (1) submits to the board a false or misleading statement,
  document, or certificate in an application for a license;
           (2) commits fraud or deception in taking or passing an
  examination;




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           (3) commits unprofessional or dishonorable conduct that is
  likely to deceive or defraud the public, as provided by Section
  201.5026, or injure the public;
           (4) engages in conduct that subverts or attempts to subvert
  an examination process required by this chapter for a chiropractic
  license;
           (5) directly or indirectly employs a person whose license
  to practice chiropractic has been suspended, canceled, or revoked;
           (6) associates in the practice of chiropractic with a
  person:
               (A) whose license to practice chiropractic has been
  suspended, canceled, or revoked; or
               (B) who has been convicted of the unlawful practice of
  chiropractic in this state or elsewhere; or
           (7) directly or indirectly aids or abets the practice of
  chiropractic by a person that is not licensed to practice
  chiropractic by the board.
       (b) For purposes of Subsection (a)(4), conduct that subverts or
  attempts to subvert the chiropractic licensing examination process
  includes, as prescribed by board rule, conduct that violates:
                    (1)       the security of the examination materials;
                    (2)       the standard of test administration; or
                    (3)       the accreditation process.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 29, eff.
  September 1, 2005.


       Sec. 201.5026. UNPROFESSIONAL OR DISHONORABLE CONDUCT. (a)
  For purposes of Section 201.5025(a)(3), unprofessional or
  dishonorable conduct that is likely to deceive or defraud the public
  includes conduct in which a chiropractor:
           (1) commits an act that violates any state or federal law
  if the act is connected with the chiropractor's practice of
  chiropractic;
           (2) prescribes or administers a treatment that is
  nontherapeutic in nature or nontherapeutic in the manner the
  treatment is prescribed or administered;
           (3) violates Section 311.0025, Health and Safety Code;


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           (4) fails to supervise adequately the activities of those
  acting under the supervision of the chiropractor; or
           (5) delegates professional chiropractic responsibility or
  acts to a person if the delegating chiropractor knows or has reason
  to know that the person is not qualified by training, experience, or
  licensure to perform the responsibility or acts.
       (b) A complaint, indictment, or conviction of a violation is
  not necessary for the enforcement of Subsection (a)(1). Proof of the
  commission of the act while in the practice of chiropractic or under
  the guise of the practice of chiropractic is sufficient for the
  board's action.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 29, eff.
  September 1, 2005.


       Sec. 201.503. SCHEDULE OF SANCTIONS. (a) The board by rule
  shall adopt a schedule of the maximum amount of sanctions that may be
  assessed against a license holder for each category of violation of
  this chapter. In establishing the schedule of sanctions or in
  imposing the amount of an administrative penalty under this chapter,
  the board shall consider:
                    (1)       the seriousness of the violation, including the nature,
  circumstances, extent, or gravity of any prohibited acts and the
  hazard or potential hazard created to the health, safety, or economic
  welfare of the public;
           (2) the economic harm to property or the environment caused
  by the violation;
           (3) the history of previous violations;
           (4) the amount necessary to deter a future violation;
           (5) efforts to correct the violation; and
           (6) any other matter that justice may require.
       (b) The State Office of Administrative Hearings shall use the
  schedule of sanctions for any sanction imposed as the result of a
  hearing conducted by that office.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.




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       Sec. 201.504. INFORMAL PROCEEDINGS; REFUNDS. (a) The board by
  rule shall adopt procedures governing:
           (1) informal disposition of a contested case under Section
  2001.056, Government Code; and
           (2) an informal proceeding held in compliance with Section
  2001.054, Government Code.
       (b) Rules adopted under Subsection (a) must:
           (1) provide the complainant and the license holder an
  opportunity to be heard; and
           (2) require the presence of a representative of the
  attorney general or the board's legal counsel to advise the board or
  the board's employees.
       (c) Subject to Subsection (d), the board may order a license
  holder to pay a refund to a consumer as provided in an agreement
  resulting from an informal settlement conference instead of or in
  addition to imposing an administrative penalty under this chapter.
       (d) The amount of a refund ordered as provided in an agreement
  resulting from an informal settlement conference may not exceed the
  amount the consumer paid to the license holder for a service
  regulated by this chapter. The board may not require payment of
  other damages or estimate harm in a refund order.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 30, eff.
  September 1, 2005.
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 31, eff.
  September 1, 2005.


       Sec. 201.505. HEARINGS. (a) A person is entitled to a hearing
  before the board if the board proposes to:
           (1) refuse the person's application for a license;
           (2) suspend or revoke the person's license; or
           (3) place on probation or reprimand the person.
       (b) The board is not bound by strict rules of evidence or
  procedure in conducting its proceedings and hearings, but the board
  must base its determination on sufficient legal evidence.
       (c) The board may:


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           (1) issue subpoenas and subpoenas duces tecum to compel the
  attendance of witnesses and the production of books, records, and
  other documents;
           (2) administer oaths; and
           (3) take testimony concerning all matters within its
  jurisdiction.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.506. ENFORCEMENT COMMITTEE. (a) The board shall
  appoint an enforcement committee to:
           (1) oversee and conduct the investigation of complaints
  filed with the board under this chapter; and
                    (2)       perform other enforcement duties as directed by the
  board.
       (b)            The enforcement committee consists of three board members.
  Two members must be chiropractors, and one member must be a
  representative of the public.
       (c) The attorney general shall provide legal counsel to the
  enforcement committee concerning enforcement matters, including the
  investigation and disposition of complaints.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.5065. REQUIRED SUSPENSION OR REVOCATION OF LICENSE FOR
  CERTAIN OFFENSES. (a) The board shall suspend a chiropractor's
  license on proof that the chiropractor has been:
           (1) initially convicted of:
               (A) a felony;
               (B) a misdemeanor under Chapter 22, Penal Code, other
  than a misdemeanor punishable by fine only;
               (C) a misdemeanor on conviction of which a defendant is
  required to register as a sex offender under Chapter 62, Code of
  Criminal Procedure;
               (D) a misdemeanor under Section 25.07, Penal Code; or
               (E) a misdemeanor under Section 25.071, Penal Code; or
           (2) subject to an initial finding by the trier of fact of
  guilt of a felony under:


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               (A) Chapter 481 or 483, Health and Safety Code;
               (B) Section 485.033, Health and Safety Code; or
               (C) the Comprehensive Drug Abuse Prevention and Control
  Act of 1970 (21 U.S.C. Section 801 et seq.).
       (b) On final conviction for an offense described by Subsection
  (a), the board shall revoke the chiropractor's license.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 32, eff.
  September 1, 2005.


       Sec. 201.507. TEMPORARY LICENSE SUSPENSION. (a) The
  enforcement committee may temporarily suspend the license of a
  license holder on an emergency basis if the enforcement committee
  determines from the evidence or information presented to the
  committee that the continued practice of chiropractic by the license
  holder constitutes a continuing or imminent threat to the public
  welfare.
       (b) The board by rule shall adopt procedures for the temporary
  suspension of a license under this section.
       (c) A license temporarily suspended under this section may be
  suspended without notice or hearing if, at the time the suspension is
  ordered, a hearing on whether disciplinary proceedings under this
  chapter should be initiated against the license holder is scheduled
  to be held not later than the 14th day after the date of the
  suspension.
       (d) A second hearing on the suspended license shall be held not
  later than the 60th day after the date the suspension is ordered. If
  the second hearing is not held in the time required by this
  subsection, the suspended license is automatically reinstated.
       (e) A temporary suspension may also be ordered on a vote of
  two-thirds of the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.508. POWERS OF DISTRICT COURTS; DUTIES OF DISTRICT
  AND COUNTY ATTORNEYS. (a) A district court may revoke or suspend a
  chiropractor's license on proof of a violation of the law relating to
  the practice of chiropractic.


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       (b) On the request of the board, a district or county attorney
  shall represent the state by filing and prosecuting a judicial
  proceeding for the revocation, cancellation, or suspension of the
  chiropractor's license.
       (c) The district or county attorney may institute the judicial
  proceeding by filing a petition that:
           (1) is in writing;
           (2) states the grounds for prosecution; and
           (3) is signed officially by the prosecuting officer.
       (d) Citation must be issued in the name of the state in the
  manner and form as in other cases and shall be served on the
  defendant, who is required to answer within the time and manner
  provided by law in civil cases.
       (e) If a chiropractor, after proper citation, is found guilty
  or fails to appear and deny the charge, the court shall:
           (1) enter an order to suspend or revoke the chiropractor's
  license; and
           (2) give proper judgment for costs.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.509.           REPRESENTATION BY ATTORNEY GENERAL.   (a)   The
  board may apply to the attorney general for representation by stating
  that the board previously requested the representation of a district
  or county attorney under Section 201.508 and the district or county
  attorney failed to prosecute or proceed against the person accused of
  violating this chapter.
       (b) The attorney general shall institute a civil or criminal
  proceeding against the person in the county of the person's
  residence.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.510. RIGHT TO APPEAL. (a) A person whose license to
  practice chiropractic has been revoked or suspended or against whom
  the board has imposed an administrative penalty may appeal to a
  Travis County district court.



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       (b) The decision of the board may not be enjoined or stayed
  unless the person appeals the board's decision as provided by
  Subsection (a) and provides notices to the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 228, Sec. 1, eff. Sept. 1, 2001.


       Sec. 201.511. REISSUANCE OF LICENSE. (a) On application, the
  board may reissue a license to practice chiropractic to a person
  whose license has been canceled or suspended.
       (b) An applicant whose license has been canceled or revoked:
           (1) may not apply for reissuance before the first
  anniversary of the date the license was canceled or revoked; and
           (2) must apply for reissuance in the manner and form
  required by the board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                                    SUBCHAPTER L. ADMINISTRATIVE PENALTY

       Sec. 201.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The board
  may impose an administrative penalty on a person licensed or
  regulated under this chapter if the person violates this chapter or a
  rule or order adopted under this chapter.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.552. AMOUNT OF PENALTY. (a) The amount of an
  administrative penalty may not exceed $1,000.
       (b) Each day a violation continues or occurs is a separate
  violation for purposes of imposing a penalty.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.553. ENFORCEMENT COMMITTEE RECOMMENDATIONS. (a) On a
  determination by the enforcement committee that a violation of this




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  chapter or a rule or order adopted under this chapter occurred, the
  committee may issue a report to the board stating:
           (1) the facts on which the determination is based; and
           (2) the enforcement committee's recommendation on the
  imposition of the administrative penalty, including a recommendation
  on the amount of the penalty.
       (b) Not later than the 14th day after the date the report is
  issued, the executive director shall give written notice of the
  violation by certified mail to the person on whom the penalty may be
  imposed.
       (c) The notice issued under this section must:
           (1) include a brief summary of the alleged violation;
                    (2)       state the amount of the recommended penalty; and
                    (3)       inform the person of the person's right to a hearing on
  the occurrence of the violation, the amount of the penalty, or both.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
  Not later than the 20th day after the date a person receives the
  notice under Section 201.553, the person may:
                    (1)       accept in writing the enforcement committee's
  determination and recommended administrative penalty; or
           (2) make a written request for a hearing on the occurrence
  of the violation, the amount of the penalty, or both.
       (b) If the person accepts the enforcement committee's
  determination and recommended penalty, the board by order shall
  approve the determination and impose the recommended penalty.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 1420, Sec. 14.0515, eff. Sept. 1, 2001.


            Sec. 201.555.           HEARING ON ENFORCEMENT COMMITTEE RECOMMENDATIONS.
  (a) If the person requests a hearing or fails to respond timely to
  the notice, the executive director shall set a hearing and give
  notice of the hearing to the person.




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       (b) A hearing set by the executive director under Subsection
  (a) shall be held by an administrative law judge of the State Office
  of Administrative Hearings.
       (c) The administrative law judge shall:
           (1) make findings of fact and conclusions of law; and
           (2) promptly issue to the board a proposal for a decision
  as to the occurrence of the violation and the amount of a proposed
  administrative penalty.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.556. DECISION BY BOARD. (a) Based on the findings of
  fact, conclusions of law, and proposal for a decision, the board by
  order may determine that:
           (1) a violation has occurred and impose an administrative
  penalty; or
           (2) a violation did not occur.
       (b) The notice of the board's order given to the person under
  Chapter 2001, Government Code, must include a statement of the right
  of the person to judicial review of the order.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.557.           OPTIONS FOLLOWING DECISION:   PAY OR APPEAL.    (a)
  Not later than the 30th day after the date the board's order becomes
  final, the person shall:
           (1) pay the administrative penalty;
           (2) pay the penalty and file a petition for judicial review
  contesting the fact of the violation, the amount of the penalty, or
  both; or
           (3) without paying the penalty, file a petition for
  judicial review contesting the fact of the violation, the amount of
  the penalty, or both.
       (b) Within the 30-day period, a person who acts under
  Subsection (a)(3) may:
           (1) stay enforcement of the penalty by:
               (A) paying the penalty to the court for placement in an
  escrow account; or


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               (B) giving to the court a supersedeas bond that is
  approved by the court and that:
                    (i) is for the amount of the penalty; and
                    (ii) is effective until judicial review of the
  board's order is final; or
                    (2)       request the court to stay enforcement of the penalty
  by:
               (A) filing with the court a sworn affidavit of the
  person stating that the person is financially unable to pay the
  penalty and is financially unable to give the supersedeas bond; and
               (B) giving a copy of the affidavit to the executive
  director by certified mail.
       (c) If the executive director receives a copy of an affidavit
  under Subsection (b)(2), the director may, at the direction of the
  enforcement committee, file with the court a contest to the affidavit
  not later than the fifth day after the date the copy is received.
       (d) The court shall hold a hearing on the facts alleged in the
  affidavit as soon as practicable and stay the enforcement of the
  penalty on finding that the alleged facts are true. The person who
  files the affidavit has the burden of proving that the person is
  financially unable to pay the penalty and to give a supersedeas bond.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.558. COLLECTION OF PENALTY. If the person does not
  pay the administrative penalty and the enforcement of the penalty is
  not stayed, the executive director may, at the direction of the
  enforcement committee, refer the matter to the attorney general for
  collection of the penalty.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.559. DETERMINATION BY COURT. (a) If a court sustains
  the finding that a violation occurred after the court reviews the
  order of the board imposing an administrative penalty, the court may
  uphold or reduce the amount of the penalty and order the person to
  pay the full or reduced penalty.



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       (b) If the court does not sustain the finding that a violation
  occurred, the court shall order that an administrative penalty is not
  owed.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.560. REMITTANCE OF PENALTY AND INTEREST. (a) If
  after judicial review, the administrative penalty is reduced or not
  imposed by the court, the court shall, after the judgment becomes
  final:
           (1) order the appropriate amount, plus accrued interest, be
  remitted to the person if the person paid the penalty; or
           (2) order the release of the bond in full if the penalty is
  not imposed or order the release of the bond after the person pays
  the penalty imposed if the person posted a supersedeas bond.
       (b) The interest paid under Subsection (a)(1) is the rate
  charged on loans to depository institutions by the New York Federal
  Reserve Bank. The interest shall be paid for the period beginning on
  the date the penalty is paid and ending on the date the penalty is
  remitted.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.561.           ADMINISTRATIVE PROCEDURE.   All proceedings under
  this subchapter are subject to Chapter 2001, Government Code.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

       Sec. 201.601. INJUNCTIVE RELIEF. (a) The board may institute
  in the board's name an action to restrain a violation of this
  chapter. An action under this subsection is in addition to any other
  action authorized by law.
       (b) The state may sue for an injunction to restrain the
  practice of chiropractic in violation of this chapter.
       (c) The state shall be represented in suits for injunction by:



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           (1) the attorney general;
           (2) the district attorney of the district in which the
  defendant resides; or
           (3) the county attorney of the county in which the
  defendant resides.
       (d) A suit for injunction under Subsection (b) may not be filed
  before the final conviction for a violation of this chapter of the
  party sought to be enjoined.
       (e) The state is not required to show that a person is
  personally injured by the defendant's unlawful practice of
  chiropractic.
       (f) A court may not grant a temporary or permanent injunction
  until a hearing of the complaint on its merits. A court may not
  issue an injunction or restraining order until the final trial and
  final judgment on the merits of the suit.
       (g) If the defendant is shown to have been unlawfully
  practicing chiropractic or to have been about to unlawfully practice
  chiropractic, the court shall perpetually enjoin the defendant from
  practicing chiropractic in the manner that was the subject of the
  suit.
       (h)            A defendant who disobeys the injunction is subject to the
  penalties           provided by law for the violation of an injunction. The
  remedy by           injunction is in addition to a criminal prosecution.
       (i)            A suit for injunction under this section shall be advanced
  for trial on the docket of the trial court and advanced and tried in
  the appellate courts in the same manner as other suits for
  injunction.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.6015.           CEASE AND DESIST ORDER.    (a)   If it appears to
  the board that a person is engaging in an act or practice that
  constitutes the practice of chiropractic without a license or
  registration under this chapter, the board, after notice and
  opportunity for a hearing, may issue a cease and desist order
  prohibiting the person from engaging in that activity.
       (b) A violation of an order under this section constitutes
  grounds for imposing an administrative penalty under Subchapter L.


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  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 33, eff.
  September 1, 2005.


            Sec. 201.602.           MONITORING LICENSE HOLDER.              The board by rule
  shall develop a system for monitoring compliance with the
  requirements of this chapter of a license holder who is the subject
  of disciplinary action. Rules adopted under this section must
  include procedures to:
           (1) monitor for compliance a license holder who is ordered
  by the board to perform certain acts; and
           (2) identify and monitor each license holder who is the
  subject of disciplinary action and who presents a continuing threat
  to the public welfare through the practice of chiropractic.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


            Sec. 201.603.           CIVIL PENALTY.              (a)   A person who violates this
  chapter or a rule adopted by the board under this chapter is liable
  to the state for a civil penalty of $1,000 for each day of violation.
       (b) At the request of the board, the attorney general shall
  bring an action to recover a civil penalty authorized by this
  section.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.604. GENERAL CRIMINAL PENALTY. A person commits an
  offense if the person violates this chapter. An offense under this
  section is a misdemeanor punishable by a fine of not less than $50 or
  more than $500 or by confinement in the county jail for not more than
  30 days.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 34, eff.
  September 1, 2005.




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       Sec. 201.605. CRIMINAL PENALTY: PRACTICE WITHOUT LICENSE. (a)
  A person commits an offense if the person violates Section 201.301.
       (b) Except as provided by Subsection (c), an offense under this
  section is a Class A misdemeanor.
       (c) If it is shown on the trial of the offense that the
  defendant has been previously convicted under Subsection (a), the
  offense is a felony of the third degree.
       (d) Each day of violation constitutes a separate offense.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 201.606. CRIMINAL PENALTY: PROVIDING CHIROPRACTIC
  TREATMENT OR SERVICES WHILE INTOXICATED. (a) In this section,
  "intoxicated" has the meaning assigned by Section 49.01, Penal Code.
       (b) A person commits an offense if the person is licensed or
  regulated under this chapter, provides chiropractic treatment or
  services to a patient while intoxicated, and, by reason of that
  conduct, places the patient at a substantial and unjustifiable risk
  of harm.
       (c) An offense under this section is a state jail felony.

  Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 35, eff.
  September 1, 2005.




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APPENDIX D
 OCCUPATIONS CODE CHAPTER 205. ACUPUNCTURE                            Page 1 of 41




                                                OCCUPATIONS CODE

                                      TITLE 3. HEALTH PROFESSIONS

            SUBTITLE C. OTHER PROFESSIONS PERFORMING MEDICAL PROCEDURES

                                         CHAPTER 205. ACUPUNCTURE

                                   SUBCHAPTER A. GENERAL PROVISIONS

       Sec. 205.001. DEFINITIONS. In this chapter:
           (1) "Acudetox specialist" means a person certified under
  Section 205.303.
           (2) "Acupuncture" means:
               (A) the nonsurgical, nonincisive insertion of an
  acupuncture needle and the application of moxibustion to specific
  areas of the human body as a primary mode of therapy to treat and
  mitigate a human condition, including evaluation and assessment of
  the condition; and
               (B) the administration of thermal or electrical
  treatments or the recommendation of dietary guidelines, energy flow
  exercise, or dietary or herbal supplements in conjunction with the
  treatment described by Paragraph (A).
           (3) "Acupuncture board" means the Texas State Board of
  Acupuncture Examiners.
           (4) "Acupuncturist" means a person who:
               (A) practices acupuncture; and
               (B) directly or indirectly charges a fee for the
  performance of acupuncture services.
           (5) "Chiropractor" means a person licensed to practice
  chiropractic by the Texas Board of Chiropractic Examiners.
           (6) "Executive director" means the executive director of
  the Texas Medical Board.
           (7) "Medical board" means the Texas Medical Board.
           (8) "Physician" means a person licensed to practice
  medicine by the Texas Medical Board.




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  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 719, Sec. 1, eff. Sept. 1, 2001.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.01, eff.
  September 1, 2005.


       Sec. 205.003. EXEMPTION; LIMITATION. (a) This chapter does
  not apply to a health care professional licensed under another
  statute of this state and acting within the scope of the license.
       (b) This chapter does not:
           (1) limit the practice of medicine by a physician;
           (2) permit the unauthorized practice of medicine; or
           (3) permit a person to dispense, administer, or supply a
  controlled substance, narcotic, or dangerous drug unless the person
  is authorized by other law to do so.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


               SUBCHAPTER B. TEXAS STATE BOARD OF ACUPUNCTURE EXAMINERS

       Sec. 205.051. BOARD; MEMBERSHIP. (a) The Texas State Board
  of Acupuncture Examiners consists of nine members appointed by the
  governor with the advice and consent of the senate as follows:
           (1) four acupuncturist members who have at least five
  years of experience in the practice of acupuncture in this state and
  who are not physicians;
           (2) two physician members experienced in the practice of
  acupuncture; and
           (3) three members of the general public who are not
  licensed or trained in a health care profession.
       (b) Appointments to the acupuncture board shall be made without
  regard to the race, color, disability, sex, religion, age, or
  national origin of the appointee.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:




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       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.02, eff.
  September 1, 2005.


       Sec. 205.052. PUBLIC MEMBER ELIGIBILITY. A person is not
  eligible for appointment as a public member of the acupuncture board
  if the person or the person's spouse:
           (1) is registered, certified, or licensed by an
  occupational regulatory agency in the field of health care;
           (2) is employed by or participates in the management of a
  business entity or other organization regulated by the medical board
  or receiving funds from the medical board or acupuncture board;
           (3) owns or controls, directly or indirectly, more than a
  10 percent interest in a business entity or other organization
  regulated by the medical board or acupuncture board or receiving
  funds from the medical board;
           (4) uses or receives a substantial amount of tangible
  goods, services, or funds from the medical board or acupuncture
  board, other than compensation or reimbursement authorized by law for
  acupuncture board membership, attendance, or expenses; or
           (5) owns, operates, or has a financial interest in a
  school of acupuncture.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 1420, Sec. 14.056(a), eff. Sept. 1,
  2001.


       Sec. 205.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In
  this section, "Texas trade association" means a cooperative and
  voluntarily joined statewide association of business or professional
  competitors in this state designed to assist its members and its
  industry or profession in dealing with mutual business or
  professional problems and in promoting their common interest.
       (b) An officer, board member, employee, or paid consultant of a
  Texas trade association in the field of health care may not be a
  member of the acupuncture board or an employee of the medical board
  who is exempt from the state's position classification plan or is
  compensated at or above the amount prescribed by the General


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  Appropriations Act for step 1, salary group A17, of the position
  classification salary schedule.
       (c) A person may not be a member of the acupuncture board and
  may not be a medical board employee in a "bona fide executive,
  administrative, or professional capacity," as that phrase is used for
  purposes of establishing an exemption to the overtime provisions of
  the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201
  et seq.), if:
           (1) the person is an officer, employee, or paid consultant
  of a Texas trade association in the field of health care; or
           (2) the person's spouse is an officer, manager, or paid
  consultant of a Texas trade association in the field of health care.
       (d) A person may not be a member of the acupuncture board or
  act as general counsel to the acupuncture board or the medical board
  if the person is required to register as a lobbyist under Chapter
  305, Government Code, because of the person's activities for
  compensation on behalf of a profession related to the operation of
  the medical board or acupuncture board.
       (e) A person may not serve on the acupuncture board if the
  person owns, operates, or has a financial interest in a school of
  acupuncture.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 1420, Sec. 14.056(b), eff. Sept. 1,
  2001.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.03, eff.
  September 1, 2005.


       Sec. 205.054. TERMS; VACANCIES. (a) Members of the
  acupuncture board serve staggered six-year terms. The terms of three
  members expire on January 31 of each odd-numbered year.
       (b) A vacancy on the acupuncture board shall be filled by
  appointment of the governor.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.




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       Sec. 205.055. PRESIDING OFFICER. The governor shall designate
  an acupuncturist member of the acupuncture board as presiding
  officer. The presiding officer serves in that capacity at the will
  of the governor.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.04, eff.
  September 1, 2005.


       Sec. 205.056. GROUNDS FOR REMOVAL. (a) It is a ground for
  removal from the acupuncture board that a member:
           (1) does not have at the time of appointment the
  qualifications required by Sections 205.051 and 205.052;
           (2) does not maintain during service on the acupuncture
  board the qualifications required by Sections 205.051 and 205.052;
           (3) violates a prohibition established by Section 205.053;
           (4) cannot, because of illness or disability, discharge
  the member's duties for a substantial part of the member's term; or
           (5) is absent from more than half of the regularly
  scheduled acupuncture board meetings that the member is eligible to
  attend during a calendar year.
       (b) The validity of an action of the acupuncture board is not
  affected by the fact that it is taken when a ground for removal of an
  acupuncture board member exists.
       (c) If the executive director has knowledge that a potential
  ground for removal of an acupuncture board member exists, the
  executive director shall notify the presiding officer of the
  acupuncture board of the potential ground. The presiding officer
  shall then notify the governor and the attorney general that a
  potential ground for removal exists. If the potential ground for
  removal involves the presiding officer, the executive director shall
  notify the next highest officer of the acupuncture board, who shall
  notify the governor and the attorney general that a potential ground
  for removal exists.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.



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       Sec. 205.057. TRAINING. (a) A person who is appointed to and
  qualifies for office as a member of the acupuncture board may not
  vote, deliberate, or be counted as a member in attendance at a
  meeting of the acupuncture board until the person completes a
  training program that complies with this section.
       (b) The training program must provide the person with
  information regarding:
           (1) this chapter;
           (2) the programs operated by the acupuncture board;
           (3) the role and functions of the acupuncture board;
           (4) the rules of the acupuncture board;
           (5) the current budget for the acupuncture board;
           (6) the results of the most recent formal audit of the
  acupuncture board;
           (7) the requirements of laws relating to open meetings,
  public information, administrative procedure, and conflicts of
  interest; and
           (8) any applicable ethics policies adopted by the
  acupuncture board or the Texas Ethics Commission.
       (c) A person appointed to the acupuncture board is entitled to
  reimbursement, as provided by the General Appropriations Act, for the
  travel expenses incurred in attending the training program regardless
  of whether the attendance at the program occurs before or after the
  person qualifies for office.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.05, eff.
  September 1, 2005.


       Sec. 205.058. QUALIFICATIONS AND STANDARDS OF CONDUCT
  INFORMATION. The executive director or the executive director's
  designee shall provide, as often as necessary, to members of the
  acupuncture board information regarding their:
           (1) qualifications for office under this chapter; and



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           (2) responsibilities under applicable laws relating to
  standards of conduct for state officers.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.059. COMPENSATION; PER DIEM. An acupuncture board
  member may not receive compensation for service on the acupuncture
  board but is entitled to receive a per diem as set by legislative
  appropriation for transportation and related expenses incurred for
  each day that the member engages in the acupuncture board's business.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS, AND
  ADMINISTRATIVE PROCEDURE LAWS. Except as provided by this chapter,
  the acupuncture board is subject to Chapters 551, 552, and 2001,
  Government Code.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


      SUBCHAPTER C. POWERS AND DUTIES OF ACUPUNCTURE BOARD AND MEDICAL
                                    BOARD

       Sec. 205.101. GENERAL POWERS AND DUTIES OF ACUPUNCTURE BOARD.
  (a) Subject to the advice and approval of the medical board, the
  acupuncture board shall:
           (1) establish qualifications for an acupuncturist to
  practice in this state;
           (2) establish minimum education and training requirements
  necessary for the acupuncture board to recommend that the medical
  board issue a license to practice acupuncture;
           (3) administer an examination that is validated by
  independent testing professionals for a license to practice
  acupuncture;
           (4) develop requirements for licensure by endorsement of
  other states;




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           (5) prescribe the application form for a license to
  practice acupuncture;
           (6) recommend rules to establish licensing and other fees;
           (7) establish the requirements for a tutorial program for
  acupuncture students who have completed at least 48 semester hours of
  college; and
           (8) recommend additional rules as are necessary to
  administer and enforce this chapter.
       (b) The acupuncture board does not have independent rulemaking
  authority. A rule adopted by the acupuncture board is subject to
  medical board approval.
       (c) The acupuncture board shall:
           (1) review and approve or reject each application for the
  issuance or renewal of a license;
           (2) issue each license; and
           (3) deny, suspend, or revoke a license or otherwise
  discipline a license holder.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.06, eff.
  September 1, 2005.


       Sec. 205.102. ASSISTANCE BY MEDICAL BOARD. (a) The medical
  board shall provide administrative and clerical employees as
  necessary to enable the acupuncture board to administer this chapter.
       (b) Subject to the advice and approval of the medical board,
  the acupuncture board shall develop and implement policies that
  clearly separate the policy-making responsibilities of the
  acupuncture board and the management responsibilities of the
  executive director and the staff of the medical board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.103. FEES. The medical board shall set and collect
  fees in amounts that are reasonable and necessary to cover the costs




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  of administering and enforcing this chapter without the use of any
  other funds generated by the medical board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE
  BIDDING. (a) The medical board may not adopt rules under this
  chapter restricting advertising or competitive bidding by a license
  holder except to prohibit false, misleading, or deceptive practices.
       (b) In its rules to prohibit false, misleading, or deceptive
  practices, the medical board may not include a rule that:
           (1) restricts the use of any medium for advertising;
           (2) restricts the use of a license holder's personal
  appearance or voice in an advertisement;
           (3) relates to the size or duration of an advertisement by
  the license holder; or
           (4) restricts the license holder's advertisement under a
  trade name.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.1041. GUIDELINES FOR EARLY INVOLVEMENT IN RULEMAKING
  PROCESS. (a) The acupuncture board shall develop guidelines to
  establish procedures for receiving input during the rulemaking
  process from individuals and groups that have an interest in matters
  under the acupuncture board's jurisdiction. The guidelines must
  provide an opportunity for those individuals and groups to provide
  input before the acupuncture board submits the rule to the medical
  board for approval.
       (b) A rule adopted by the acupuncture board may not be
  challenged on the grounds that the board did not comply with this
  section. If the acupuncture board was unable to solicit a
  significant amount of input from the public or affected persons early
  in the rulemaking process, the board shall state in writing the
  reasons why the board was unable to do so.




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  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.07, eff.
  September 1, 2005.


       Sec. 205.1045. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION.
  The acupuncture board shall adopt rules and guidelines as necessary
  to comply with Chapter 53, except to the extent the requirements of
  this chapter are stricter than the requirements of Chapter 53.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.08, eff.
  September 1, 2005.


       Sec. 205.106. USE OF TECHNOLOGY. Subject to the advice and
  approval of the medical board, the acupuncture board shall implement
  a policy requiring the acupuncture board to use appropriate
  technological solutions to improve the acupuncture board's ability to
  perform its functions. The policy must ensure that the public is
  able to interact with the acupuncture board on the Internet.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.09, eff.
  September 1, 2005.


       Sec. 205.107. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE
  RESOLUTION POLICY. (a) Subject to the advice and approval of the
  medical board, the acupuncture board shall develop and implement a
  policy to encourage the use of:
           (1) negotiated rulemaking procedures under Chapter 2008,
  Government Code, for the adoption of acupuncture board rules; and
           (2) appropriate alternative dispute resolution procedures
  under Chapter 2009, Government Code, to assist in the resolution of
  internal and external disputes under the acupuncture board's
  jurisdiction.
       (b) The acupuncture board procedures relating to alternative
  dispute resolution must conform, to the extent possible, to any model
  guidelines issued by the State Office of Administrative Hearings for
  the use of alternative dispute resolution by state agencies.
       (c) The acupuncture board shall designate a trained person to:



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           (1) coordinate the implementation of the policy adopted
  under Subsection (a);
           (2) serve as a resource for any training needed to
  implement the procedures for negotiated rulemaking or alternative
  dispute resolution; and
           (3) collect data concerning the effectiveness of those
  procedures, as implemented by the acupuncture board.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.10, eff.
  September 1, 2005.


   SUBCHAPTER D. PUBLIC ACCESS AND INFORMATION AND COMPLAINT PROCEDURES

       Sec. 205.151. PUBLIC INTEREST INFORMATION. (a) The
  acupuncture board shall prepare information of public interest
  describing the functions of the acupuncture board and the procedures
  by which complaints are filed with and resolved by the acupuncture
  board.
       (b) The acupuncture board shall make the information available
  to the public and appropriate state agencies.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.152. COMPLAINTS. (a) The acupuncture board by rule
  shall establish methods by which consumers and service recipients are
  notified of the name, mailing address, and telephone number of the
  acupuncture board for the purpose of directing a complaint to the
  acupuncture board. The acupuncture board may provide for that
  notification:
           (1) on each registration form, application, or written
  contract for services of a person regulated under this chapter;
           (2) on a sign prominently displayed in the place of
  business of each person regulated under this chapter; or
           (3) in a bill for service provided by a person regulated
  under this chapter.




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       (b) The acupuncture board shall keep information about each
  complaint filed with the acupuncture board. The information shall
  include:
           (1) the date the complaint is received;
           (2) the name of the complainant;
           (3) the subject matter of the complaint;
           (4) a record of all persons contacted in relation to the
  complaint;
           (5) a summary of the results of the review or
  investigation of the complaint; and
           (6) for a complaint for which the acupuncture board took
  no action, an explanation of the reason the complaint was closed
  without action.
       (c) The acupuncture board shall keep a file about each written
  complaint filed with the acupuncture board that the acupuncture board
  has authority to resolve. The acupuncture board shall provide to the
  person filing the complaint and each person who is the subject of the
  complaint the acupuncture board's policies and procedures pertaining
  to complaint investigation and resolution.
       (d) The acupuncture board, at least quarterly and until final
  disposition of the complaint, shall notify the person filing the
  complaint and each person who is the subject of the complaint of the
  status of the complaint unless the notice would jeopardize an
  investigation.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.1521. CONDUCT OF INVESTIGATION. The acupuncture board
  shall complete a preliminary investigation of a complaint received by
  the acupuncture board not later than the 30th day after the date of
  receiving the complaint. The acupuncture board shall first determine
  whether the acupuncturist constitutes a continuing threat to the
  public welfare. On completion of the preliminary investigation, the
  acupuncture board shall determine whether to officially proceed on
  the complaint. If the acupuncture board fails to complete the
  preliminary investigation in the time required by this section, the
  acupuncture board's official investigation of the complaint is
  considered to commence on that date.

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  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.11, eff.
  September 1, 2005.


       Sec. 205.153. PUBLIC PARTICIPATION. (a) Subject to the advice
  and approval of the medical board, the acupuncture board shall
  develop and implement policies that provide the public with a
  reasonable opportunity to appear before the acupuncture board and to
  speak on any issue under the acupuncture board's jurisdiction.
       (b) The executive director shall prepare and maintain a written
  plan that describes how a person who does not speak English may be
  provided reasonable access to the acupuncture board's programs and
  services.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                                   SUBCHAPTER E. LICENSE REQUIREMENTS

       Sec. 205.201. LICENSE REQUIRED. Except as provided by Section
  205.303, a person may not practice acupuncture in this state unless
  the person holds a license to practice acupuncture issued by the
  acupuncture board under this chapter.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.12, eff.
  September 1, 2005.


       Sec. 205.202. ISSUANCE OF LICENSE. (a) The acupuncture board
  shall issue a license to practice acupuncture in this state to a
  person who meets the requirements of this chapter and the rules
  adopted under this chapter.
       (b) The acupuncture board may delegate authority to medical
  board employees to issue licenses under this chapter to applicants
  who clearly meet all licensing requirements. If the medical board
  employees determine that the applicant does not clearly meet all
  licensing requirements, the application shall be returned to the


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  acupuncture board. A license issued under this subsection does not
  require formal acupuncture board approval.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.13, eff.
  September 1, 2005.


       Sec. 205.203. LICENSE EXAMINATION. (a) An applicant for a
  license to practice acupuncture must pass an acupuncture examination
  and a jurisprudence examination approved by the acupuncture board as
  provided by this section.
       (b) To be eligible for the examination, an applicant must:
           (1) be at least 21 years of age;
           (2) have completed at least 60 semester hours of college
  courses, including basic science courses as determined by the
  acupuncture board; and
           (3) be a graduate of an acupuncture school with entrance
  requirements and a course of instruction that meet standards set
  under Section 205.206.
       (c) The acupuncture examination shall be conducted on practical
  and theoretical acupuncture and other subjects required by the
  acupuncture board.
       (c-1) The jurisprudence examination shall be conducted on the
  licensing requirements and other laws, rules, or regulations
  applicable to the professional practice of acupuncture in this state.
       (d) The examination may be in writing, by a practical
  demonstration of the applicant's skill, or both, as required by the
  acupuncture board.
       (e) The medical board shall notify each applicant of the time
  and place of the examination.
       (f) The acupuncture board shall adopt rules for the
  jurisprudence examination under Subsection (c-1) regarding:
           (1) the development of the examination;
           (2) applicable fees;
           (3) administration of the examination;
           (4) reexamination procedures;
           (5) grading procedures; and

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                     (6)       notice of results.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 1420, Sec. 14.057(a), eff. Sept. 1,
  2001.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.14, eff.
  September 1, 2005.


       Sec. 205.204. APPLICATION FOR EXAMINATION. An application for
  examination must be:
           (1) in writing on a form prescribed by the acupuncture
  board;
           (2) verified by affidavit;
           (3) filed with the executive director; and
           (4) accompanied by a fee in an amount set by the medical
  board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.2045. APPEARANCE OF APPLICANT BEFORE ACUPUNCTURE
  BOARD. An applicant for a license to practice acupuncture may not be
  required to appear before the acupuncture board or a committee of the
  acupuncture board unless the application raises questions concerning:
           (1) a physical or mental impairment of the applicant;
           (2) a criminal conviction of the applicant; or
           (3) revocation of a professional license held by the
  applicant.

  Added by Acts 2001, 77th Leg., ch. 1420, Sec. 14.057(b), eff. Sept.
  1, 2001.


       Sec. 205.205. EXAMINATION RESULTS. (a) Not later than the
  30th day after the date a licensing examination is administered under
  this chapter, the acupuncture board shall notify each examinee of the
  results of the examination. If an examination is graded or reviewed
  by a national testing service, the acupuncture board shall notify


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  examinees of the results of the examination not later than the 14th
  day after the date the acupuncture board receives the results from
  the testing service.
       (b) If the notice of examination results graded or reviewed by
  a national testing service will be delayed for longer than 90 days
  after the examination date, the acupuncture board shall notify the
  examinee of the reason for the delay before the 90th day. The
  acupuncture board may require a testing service to notify examinees
  of the results of an examination.
       (c) If requested in writing by a person who fails a licensing
  examination administered under this chapter, the acupuncture board
  shall furnish the person with an analysis of the person's performance
  on the examination if an analysis is available from the national
  testing service.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.206. ACUPUNCTURE SCHOOLS. (a) A reputable
  acupuncture school, in addition to meeting standards set by the
  acupuncture board, must:
            (1) maintain a resident course of instruction equivalent
  to not less than six terms of four months each for a total of not
  less than 1,800 instructional hours;
            (2) provide supervised patient treatment for at least two
  terms of the resident course of instruction;
            (3) maintain a course of instruction in anatomy-histology,
  bacteriology, physiology, symptomatology, pathology, meridian and
  point locations, hygiene, and public health; and
            (4) have the necessary teaching force and facilities for
  proper instruction in required subjects.
       (b) In establishing standards for the entrance requirements and
  course of instruction of an acupuncture school, the acupuncture board
  may consider the standards set by the National Accreditation
  Commission for Schools and Colleges of Acupuncture and Oriental
  Medicine.
       (c) In addition to the other requirements of this section, an
  acupuncture school or degree program is subject to approval by the
  Texas Higher Education Coordinating Board unless the school or

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  program qualifies for an exemption under Section 61.303, Education
  Code.
       (d) In reviewing an acupuncture school or degree program as
  required by Subsection (c), the Texas Higher Education Coordinating
  Board shall seek input from the acupuncture board regarding the
  standards to be used for assessing whether a school or degree program
  adequately prepares an individual for the practice of acupuncture.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.15, eff.
  September 1, 2005.


       Sec. 205.207. RECIPROCAL LICENSE. The medical board may waive
  any license requirement for an applicant after reviewing the
  applicant's credentials and determining that the applicant holds a
  license from another state that has license requirements
  substantially equivalent to those of this state.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.208. TEMPORARY LICENSE. (a) The acupuncture board
  may, through the executive director, issue a temporary license to
  practice acupuncture to an applicant who:
           (1) submits an application on a form prescribed by the
  acupuncture board;
           (2) has passed a national or other examination recognized
  by the acupuncture board relating to the practice of acupuncture;
           (3) pays the appropriate fee;
           (4) if licensed in another state, is in good standing as
  an acupuncturist; and
           (5) meets all the qualifications for a license under this
  chapter but is waiting for the next scheduled meeting of the medical
  board for the license to be issued.
       (b) A temporary license is valid for 100 days after the date
  issued and may be extended only for another 30 days after the date
  the initial temporary license expires.


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  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                                     SUBCHAPTER F. LICENSE RENEWAL

       Sec. 205.251. ANNUAL RENEWAL REQUIRED. (a) The medical board
  by rule shall provide for the annual renewal of a license to practice
  acupuncture.
       (b) The medical board by rule may adopt a system under which
  licenses expire on various dates during the year. For the year in
  which the license expiration date is changed, license fees shall be
  prorated on a monthly basis so that each license holder pays only
  that portion of the license fee that is allocable to the number of
  months during which the license is valid. On renewal of the license
  on the new expiration date, the total license renewal fee is payable.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.252. NOTICE OF LICENSE EXPIRATION. Not later than the
  30th day before the expiration date of a person's license, the
  medical board shall send written notice of the impending license
  expiration to the person at the person's last known address according
  to the records of the medical board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.253. PROCEDURE FOR RENEWAL. (a) A person who is
  otherwise eligible to renew a license may renew an unexpired license
  by paying the required renewal fee to the medical board before the
  expiration date of the license. A person whose license has expired
  may not engage in activities that require a license until the license
  has been renewed under this section or Section 205.254.
       (b) If the person's license has been expired for 90 days or
  less, the person may renew the license by paying to the medical board
  a fee in an amount equal to one and one-half times the required
  renewal fee.




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       (c) If the person's license has been expired for longer than 90
  days but less than one year, the person may renew the license by
  paying to the medical board a fee in an amount equal to two times the
  required renewal fee.
       (d) If the person's license has been expired for one year or
  longer, the person may not renew the license. The person may obtain
  a new license by submitting to reexamination and complying with the
  requirements and procedures for obtaining an original license.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.254. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
  PRACTITIONER. (a) The medical board may renew without reexamination
  the license of a person who was licensed to practice acupuncture in
  this state, moved to another state, and is currently licensed and has
  been in practice in the other state for the two years preceding
  application.
       (b) The person must pay to the medical board a fee in an amount
  equal to two times the required renewal fee for the license.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.255. CONTINUING EDUCATION. (a) The acupuncture board
  by rule may require a license holder to complete a certain number of
  hours of continuing education courses approved by the acupuncture
  board to renew a license.
       (a-1) The acupuncture board shall establish written guidelines
  for granting continuing education credit that specify:
           (1) procedural requirements;
           (2) the qualifications needed to be considered a preferred
  provider of continuing education; and
           (3) course content requirements.
       (b) The acupuncture board shall consider the approval of a
  course conducted by:
           (1) a knowledgeable health care provider; or
           (2) a reputable school, state, or professional
  organization.


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       (c) After guidelines are established under Subsection (a-1),
  the acupuncture board shall delegate to medical board employees the
  authority to approve course applications for courses that clearly
  meet the guidelines. Medical board employees shall refer any courses
  that are not clearly within the guidelines to the acupuncture board
  for review and approval.

  Added by Acts 2001, 77th Leg., ch. 1420, Sec. 14.058(a), eff. Sept.
  1, 2001.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.16, eff.
  September 1, 2005.


                                   SUBCHAPTER G. PRACTICE BY LICENSE HOLDER

       Sec. 205.301. REFERRAL BY OTHER HEALTH CARE PRACTITIONER
  REQUIRED. (a) A license holder may perform acupuncture on a person
  only if the person was:
           (1) evaluated by a physician or dentist, as appropriate,
  for the condition being treated within six months before the date
  acupuncture is performed; or
           (2) referred by a chiropractor within 30 days before the
  date acupuncture is performed.
       (b) A license holder acting under Subsection (a)(1) must obtain
  reasonable documentation that the required evaluation has taken
  place. If the license holder is unable to determine that an
  evaluation has taken place, the license holder must obtain a written
  statement signed by the person on a form prescribed by the
  acupuncture board that states the person has been evaluated by a
  physician or dentist within the prescribed time. The form must
  contain a clear statement that the person should be evaluated by a
  physician or dentist for the condition being treated by the license
  holder.
       (c) A license holder acting under Subsection (a)(2) shall refer
  the person to a physician after performing acupuncture 20 times or
  for 30 days, whichever occurs first, if substantial improvement does
  not occur in the person's condition for which the referral was made.



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       (d) The medical board, with advice from the acupuncture board,
  by rule may modify:
           (1) the scope of the evaluation under Subsection (a)(1);
           (2) the period during which treatment must begin under
  Subsection (a)(1) or (2); or
           (3) the number of treatments or days before referral to a
  physician is required under Subsection (c).

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.302. AUTHORIZED PRACTICE WITHOUT REFERRAL. (a) After
  notice and public hearing, the medical board shall determine by rule
  whether an acupuncturist may treat a patient for alcoholism or
  chronic pain without a referral from a physician, dentist, or
  chiropractor. The medical board shall make the determination based
  on clinical evidence and what the medical board determines to be in
  the best interest of affected patients.
       (b) Notwithstanding Section 205.301, a license holder may,
  without a referral from a physician, dentist, or chiropractor,
  perform acupuncture on a person for:
           (1) smoking addiction;
           (2) weight loss; or
           (3) substance abuse, to the extent permitted by medical
  board rule adopted with advice from the acupuncture board.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 719, Sec. 2, eff. Sept. 1, 2001.


       Sec. 205.303. ACUDETOX SPECIALIST. (a) The medical board may
  certify a person as an acudetox specialist under this section if the
  person:
           (1) provides to the medical board documentation that the
  person:
               (A) is a licensed social worker, licensed professional
  counselor, licensed psychologist, licensed chemical dependency
  counselor, licensed vocational nurse, or licensed registered nurse;
  and


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               (B) has successfully completed a training program in
  acupuncture detoxification that meets guidelines approved by the
  medical board; and
           (2) pays a certification fee in an amount set by the
  medical board.
       (b) An acudetox specialist may practice acupuncture only:
           (1) to the extent allowed by rules adopted by the medical
  board for the treatment of alcoholism, substance abuse, or chemical
  dependency; and
           (2) under the supervision of a licensed acupuncturist or
  physician.
       (c) A program that includes the services of an acudetox
  specialist shall:
           (1) notify each participant in the program of the
  qualifications of the acudetox specialist and of the procedure for
  registering a complaint regarding the acudetox specialist with the
  medical board; and
           (2) keep a record of each client's name, the date the
  client received the acudetox specialist's services, and the name,
  signature, and certification number of the acudetox specialist.
       (d) The medical board may annually renew the certification of
  an acudetox specialist under this section if the person:
           (1) provides to the medical board documentation that:
               (A) the certification or license required under
  Subsection (a)(1)(A) is in effect; and
               (B) the person has successfully met continuing
  education requirements established by the medical board under
  Subsection (e); and
           (2) pays a certification renewal fee in an amount set by
  the medical board.
       (e) The medical board shall establish continuing education
  requirements for an acudetox specialist that, at a minimum, include
  six hours of education in the practice of acupuncture and a course in
  either clean needle technique or universal infection control
  precaution procedures.




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  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 1420, Sec. 14.059(a), eff. Sept. 1,
  2001; Acts 2003, 78th Leg., ch. 892, Sec. 33, eff. Sept. 1, 2003.


       Sec. 205.304. PROFESSIONAL REVIEW ACTION. Sections 160.002,
  160.003, 160.006, 160.007(d), 160.013, 160.014, and 160.015 apply to
  professional review actions relating to the practice of acupuncture
  by an acupuncturist or acupuncturist student.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended
  by Acts 2001, 77th Leg., ch. 1420, Sec. 14.060, eff. Sept. 1, 2001.


       Sec. 205.305. LICENSE HOLDER INFORMATION. (a) Each license
  holder shall file with the acupuncture board:
           (1) the license holder's mailing address;
           (2) the address of the license holder's residence;
           (3) the mailing address of each office of the license
  holder; and
           (4) the address for the location of each office of the
  license holder that has an address different from the office's
  mailing address.
       (b) A license holder shall:
           (1) notify the acupuncture board of a change of the
  license holder's residence or business address; and
           (2) provide the acupuncture board with the license
  holder's new address not later than the 30th day after the date the
  address change occurs.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


                                   SUBCHAPTER H. DISCIPLINARY PROCEDURES

       Sec. 205.351. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY
  ACTION. (a) A license to practice acupuncture may be denied or,
  after notice and hearing, a license holder may be subject to
  disciplinary action under Section 205.352 if the license applicant or
  license holder:


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            (1) intemperately uses drugs or intoxicating liquors to an
  extent that, in the opinion of the board, could endanger the lives of
  patients;
            (2) obtains or attempts to obtain a license by fraud or
  deception;
            (3) has been adjudged mentally incompetent by a court;
            (4) has a mental or physical condition that renders the
  person unable to perform safely as an acupuncturist;
            (5) fails to practice acupuncture in an acceptable manner
  consistent with public health and welfare;
            (6) violates this chapter or a rule adopted under this
  chapter;
            (7) has been convicted of a crime involving moral
  turpitude or a felony or is the subject of deferred adjudication or
  pretrial diversion for such an offense;
            (8) holds the person out as a physician or surgeon or any
  combination or derivative of those terms unless the person is also
  licensed by the medical board as a physician or surgeon;
            (9) fraudulently or deceptively uses a license;
            (10) engages in unprofessional or dishonorable conduct
  that is likely to deceive, defraud, or injure a member of the public;
            (11) commits an act in violation of state law if the act
  is connected with the person's practice as an acupuncturist;
            (12) fails to adequately supervise the activities of a
  person acting under the supervision of the license holder;
            (13) directly or indirectly aids or abets the practice of
  acupuncture by any person not licensed to practice acupuncture by the
  acupuncture board;
            (14) is unable to practice acupuncture with reasonable
  skill and with safety to patients because of illness, drunkenness, or
  excessive use of drugs, narcotics, chemicals, or any other type of
  material or because of any mental or physical condition;
            (15) is the subject of repeated or recurring meritorious
  health-care liability claims that in the opinion of the acupuncture
  board evidence professional incompetence likely to injure the public;
            (16) has had a license to practice acupuncture suspended,
  revoked, or restricted by another state or has been subject to other



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  disciplinary action by another state or by the uniformed services of
  the United States regarding practice as an acupuncturist; or
           (17) sexually abuses or exploits another person through
  the license holder's practice as an acupuncturist.
       (b) If the acupuncture board proposes to suspend, revoke, or
  refuse to renew a person's license, the person is entitled to a
  hearing conducted by the State Office of Administrative Hearings.
       (c) A complaint, indictment, or conviction of a violation of
  law is not necessary for an action under Subsection (a)(11). Proof
  of the commission of the act while in the practice of acupuncture or
  under the guise of the practice of acupuncture is sufficient for
  action by the acupuncture board.
       (d) A certified copy of the record of the state or uniformed
  services of the United States taking an action is conclusive evidence
  of the action for purposes of Subsection (a)(16).

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.17, eff.
  September 1, 2005.


       Sec. 205.352. DISCIPLINARY POWERS OF ACUPUNCTURE BOARD. (a)
  On finding that grounds exist to deny a license or take disciplinary
  action against a license holder, the acupuncture board by order may:
           (1) deny the person's application for a license, license
  renewal, or certificate to practice acupuncture or revoke the
  person's license or certificate to practice acupuncture;
           (2) require the person to submit to the care, counseling,
  or treatment of a health care practitioner designated by the
  acupuncture board as a condition for the issuance, continuance, or
  renewal of a license or certificate to practice acupuncture;
           (3) require the person to participate in a program of
  education or counseling prescribed by the acupuncture board;
           (4) suspend, limit, or restrict the person's license or
  certificate to practice acupuncture, including limiting the practice
  of the person to, or excluding from the practice, one or more
  specified activities of acupuncture or stipulating periodic review by
  the acupuncture board;

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           (5) require the person to practice under the direction of
  an acupuncturist designated by the acupuncture board for a specified
  period of time;
           (6) assess an administrative penalty against the person as
  provided by Subchapter J;
           (7) require the person to perform public service
  considered appropriate by the acupuncture board;
           (8) stay enforcement of an order and place the person on
  probation with the acupuncture board retaining the right to vacate
  the probationary stay and enforce the original order for
  noncompliance with the terms of probation or impose any other
  remedial measure or sanction authorized by this section;
           (9) require the person to continue or review professional
  education until the person attains a degree of skill satisfactory to
  the acupuncture board in those areas that are the basis of the
  probation under Subdivision (8);
           (10) require the person to report regularly to the
  acupuncture board on matters that are the basis of the probation
  under Subdivision (8); or
           (11) administer a public reprimand.
       (b) The acupuncture board may reinstate or reissue a license or
  remove any disciplinary or corrective measure that the acupuncture
  board has imposed under this section.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.18, eff.
  September 1, 2005.


       Sec. 205.3522. SURRENDER OF LICENSE. (a) The acupuncture
  board may accept the voluntary surrender of a license.
       (b) A surrendered license may not be returned to the license
  holder unless the acupuncture board determines, under acupuncture
  board rules, that the former holder of the license is competent to
  resume practice.
       (c) The acupuncture board shall recommend rules to the medical
  board for determining the competency of a former license holder to
  return to practice.

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  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.19, eff.
  September 1, 2005.


       Sec. 205.3523. PHYSICAL OR MENTAL EXAMINATION. (a) The
  acupuncture board shall adopt guidelines, in conjunction with persons
  interested in or affected by this section, to enable the board to
  evaluate circumstances in which an acupuncturist or applicant may be
  required to submit to an examination for mental or physical health
  conditions, alcohol and substance abuse, or professional behavior
  problems.
       (b) The acupuncture board shall refer an acupuncturist or
  applicant with a physical or mental health condition to the most
  appropriate medical specialist. The acupuncture board may not
  require an acupuncturist or applicant to submit to an examination by
  a physician having a specialty specified by the board unless
  medically indicated. The acupuncture board may not require an
  acupuncturist or applicant to submit to an examination to be
  conducted an unreasonable distance from the person's home or place of
  business unless the acupuncturist or applicant resides and works in
  an area in which there are a limited number of physicians able to
  perform an appropriate examination.
       (c) The guidelines adopted under this section do not impair or
  remove the acupuncture board's power to make an independent licensing
  decision.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.20, eff.
  September 1, 2005.


       Sec. 205.354. RULES FOR DISCIPLINARY PROCEEDINGS. Rules of
  practice adopted by the medical board under Section 2001.004,
  Government Code, applicable to the proceedings for a disciplinary
  action may not conflict with rules adopted by the State Office of
  Administrative Hearings.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.




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       Sec. 205.3541. INFORMAL PROCEEDINGS. (a) The acupuncture
  board by rule shall adopt procedures governing:
           (1) informal disposition of a contested case under
  Section 2001.056, Government Code; and
           (2) informal proceedings held in compliance with Section
  2001.054, Government Code.
       (b) Rules adopted under this section must require that:
           (1) an informal meeting in compliance with Section
  2001.054, Government Code, be scheduled not later than the 180th day
  after the date the complaint is filed with the acupuncture board,
  unless good cause is shown by the acupuncture board for scheduling
  the informal meeting after that date;
           (2) the acupuncture board give notice to the license
  holder of the time and place of the meeting not later than the 30th
  day before the date the meeting is held;
           (3) the complainant and the license holder be provided an
  opportunity to be heard;
           (4) at least one of the acupuncture board members
  participating in the informal meeting as a panelist be a member who
  represents the public;
           (5) the acupuncture board's legal counsel or a
  representative of the attorney general be present to advise the
  acupuncture board or the medical board's staff; and
           (6) an employee of the medical board be at the meeting to
  present to the acupuncture board's representative the facts the
  medical board staff reasonably believes it could prove by competent
  evidence or qualified witnesses at a hearing.
       (c) An affected acupuncturist is entitled, orally or in
  writing, to:
           (1) reply to the staff's presentation; and
           (2) present the facts the acupuncturist reasonably
  believes the acupuncturist could prove by competent evidence or
  qualified witnesses at a hearing.
       (d) After ample time is given for the presentations, the
  acupuncture board panel shall recommend that the investigation be
  closed or shall attempt to mediate the disputed matters and make a
  recommendation regarding the disposition of the case in the absence
  of a hearing under applicable law concerning contested cases.


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       (e) If the license holder has previously been the subject of
  disciplinary action by the acupuncture board, the acupuncture board
  shall schedule the informal meeting as soon as practicable but not
  later than the deadline prescribed by Subsection (b)(1).

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.21, eff.
  September 1, 2005.


       Sec. 205.3542. ACUPUNCTURE BOARD REPRESENTATION IN INFORMAL
  PROCEEDINGS. (a) In an informal proceeding under Section 205.3541,
  at least two panelists shall be appointed to determine whether an
  informal disposition is appropriate.
       (b) Notwithstanding Subsection (a) and Section 205.3541(b)(4),
  an informal proceeding may be conducted by one panelist if the
  affected acupuncturist waives the requirement that at least two
  panelists conduct the informal proceeding. If the acupuncturist
  waives that requirement, the panelist may be any member of the
  acupuncture board.
       (c) The panel requirements described by Subsection (a) apply to
  an informal proceeding conducted by the acupuncture board under
  Section 205.3541, including a proceeding to:
           (1) consider a disciplinary case to determine if a
  violation has occurred; or
           (2) request modification or termination of an order.
       (d) The panel requirements described by Subsection (a) do not
  apply to an informal proceeding conducted by the acupuncture board
  under Section 205.3541 to show compliance with an order of the
  acupuncture board.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.22, eff.
  September 1, 2005.


       Sec. 205.3543. ROLES AND RESPONSIBILITIES OF PARTICIPANTS IN
  INFORMAL PROCEEDINGS. (a) An acupuncture board member that serves
  as a panelist at an informal meeting under Section 205.3541 shall
  make recommendations for the disposition of a complaint or




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  allegation. The member may request the assistance of a medical board
  employee at any time.
       (b) Medical board employees shall present a summary of the
  allegations against the affected acupuncturist and of the facts
  pertaining to the allegation that the employees reasonably believe
  may be proven by competent evidence at a formal hearing.
       (c) An acupuncture board or medical board attorney shall act as
  counsel to the panel and, notwithstanding Subsection (e), shall be
  present during the informal meeting and the panel's deliberations to
  advise the panel on legal issues that arise during the proceeding.
  The attorney may ask questions of participants in the informal
  meeting to clarify any statement made by the participant. The
  attorney shall provide to the panel a historical perspective on
  comparable cases that have appeared before the acupuncture board or
  medical board, keep the proceedings focused on the case being
  discussed, and ensure that the medical board's employees and the
  affected acupuncturist have an opportunity to present information
  related to the case. During the panel's deliberation, the attorney
  may be present only to advise the panel on legal issues and to
  provide information on comparable cases that have appeared before the
  acupuncture board or medical board.
       (d) The panel and medical board employees shall provide an
  opportunity for the affected acupuncturist and the acupuncturist's
  authorized representative to reply to the board employees'
  presentation and to present oral and written statements and facts
  that the acupuncturist and representative reasonably believe could be
  proven by competent evidence at a formal hearing.
       (e) An employee of the medical board who participated in the
  presentation of the allegation or information gathered in the
  investigation of the complaint, the affected acupuncturist, the
  acupuncturist's authorized representative, the complainant, the
  witnesses, and members of the public may not be present during the
  deliberations of the panel. Only the members of the panel and the
  attorney serving as counsel to the panel may be present during the
  deliberations.
       (f) The panel shall recommend the dismissal of the complaint or
  allegations or, if the panel determines that the affected
  acupuncturist has violated a statute or acupuncture board rule, the


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  panel may recommend board action and terms for an informal settlement
  of the case.
       (g) The panel's recommendations under Subsection (f) must be
  made in a written order and presented to the affected acupuncturist
  and the acupuncturist's authorized representative. The acupuncturist
  may accept the proposed settlement within the time established by the
  panel at the informal meeting. If the acupuncturist rejects the
  proposed settlement or does not act within the required time, the
  acupuncture board may proceed with the filing of a formal complaint
  with the State Office of Administrative Hearings.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.23, eff.
  September 1, 2005.


       Sec. 205.3544. LIMIT ON ACCESS TO INVESTIGATION FILES. The
  acupuncture board shall prohibit or limit access to an investigation
  file relating to a license holder in an informal proceeding in the
  manner provided by Section 164.007(c).

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.24, eff.
  September 1, 2005.


       Sec. 205.355. REQUIRED DISCIPLINARY ACTION FOR FAILURE TO
  OBTAIN REFERRAL. Except as provided by Section 205.301(a)(2), a
  license to practice acupuncture shall be denied or, after notice and
  hearing, revoked if the applicant or license holder violates Section
  205.301(a)(1).

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.356. REHABILITATION ORDER. (a) The acupuncture
  board, through an agreed order or after a contested proceeding, may
  impose a nondisciplinary rehabilitation order on an applicant, as a
  prerequisite for issuing a license, or on a license holder based on:
           (1) the person's intemperate use of drugs or alcohol
  directly resulting from habituation or addiction caused by medical
  care or treatment provided by a physician;


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           (2) the person's intemperate use of drugs or alcohol
  during the five years preceding the date of the report that could
  adversely affect the person's ability to safely practice as an
  acupuncturist, if the person:
               (A) reported the use;
               (B) has not previously been the subject of a substance
  abuse related order of the acupuncture board; and
               (C) did not violate the standard of care as a result
  of the impairment;
           (3) a judgment by a court that the person is of unsound
  mind; or
           (4) the results of a mental or physical examination, or an
  admission by the person, indicating that the person suffers from a
  potentially dangerous limitation or an inability to practice as an
  acupuncturist with reasonable skill and safety by reason of illness
  or as a result of any physical or mental condition.
       (b) The acupuncture board may not issue an order under this
  section if, before the individual signs the proposed order, the board
  receives a valid complaint with regard to the individual based on the
  individual's intemperate use of drugs or alcohol in a manner
  affecting the standard of care.
       (c) The acupuncture board must determine whether an individual
  has committed a standard of care violation described by Subsection
  (a)(2) before imposing an order under this section.
       (d) The acupuncture board may disclose a rehabilitation order
  to a local or statewide private acupuncture association only as
  provided by Section 205.3562.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.25, eff.
  September 1, 2005.


       Sec. 205.3561. EXPERT IMMUNITY. An expert who assists the
  acupuncture board is immune from suit and judgment and may not be
  subjected to a suit for damages for any investigation, report,
  recommendation, statement, evaluation, finding, or other action taken
  without fraud or malice in the course of assisting the board in a

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  disciplinary proceeding. The attorney general shall represent the
  expert in any suit resulting from a service provided by the expert in
  good faith to the acupuncture board.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.26, eff.
  September 1, 2005.


       Sec. 205.3562. RESPONSIBILITIES OF PRIVATE ASSOCIATIONS. (a)
  If a rehabilitation order imposed under Section 205.356 requires a
  license holder to participate in activities or programs provided by a
  local or statewide private acupuncture association, the acupuncture
  board shall inform the association of the license holder's duties
  under the order. The information provided under this section must
  include specific guidance to enable the association to comply with
  any requirements necessary to assist in the acupuncturist's
  rehabilitation.
       (b) The acupuncture board may provide to the association any
  information that the board determines to be necessary, including a
  copy of the rehabilitation order. Any information received by the
  association remains confidential, is not subject to discovery,
  subpoena, or other means of legal compulsion, and may be disclosed
  only to the acupuncture board.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.26, eff.
  September 1, 2005.


       Sec. 205.357. EFFECT OF REHABILITATION ORDER. (a) A
  rehabilitation order imposed under Section 205.356 is a
  nondisciplinary private order. If entered by agreement, the order is
  an agreed disposition or settlement agreement for purposes of civil
  litigation and is exempt from the open records law.
       (b) A rehabilitation order imposed under Section 205.356 must
  contain findings of fact and conclusions of law. The order may
  impose a revocation, cancellation, suspension, period of probation or
  restriction, or any other term authorized by this chapter or agreed
  to by the acupuncture board and the person subject to the order.




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       (c) A violation of a rehabilitation order may result in
  disciplinary action under the provisions of this chapter for
  contested matters or the terms of the agreed order.
       (d) A violation of a rehabilitation order is grounds for
  disciplinary action based on:
           (1) unprofessional or dishonorable conduct; or
           (2) any provision of this chapter that applies to the
  conduct resulting in the violation.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.358. AUDIT OF REHABILITATION ORDER. (a) The
  acupuncture board shall keep rehabilitation orders imposed under
  Section 205.356 in a confidential file. The file is subject to an
  independent audit to ensure that only qualified license holders are
  subject to rehabilitation orders. The audit shall be conducted by a
  state auditor or private auditor with whom the acupuncture board
  contracts to perform the audit.
       (b) An audit may be performed at any time at the direction of
  the acupuncture board. The acupuncture board shall ensure that an
  audit is performed at least once in each three-year period.
       (c) The audit results are a matter of public record and shall
  be reported in a manner that maintains the confidentiality of each
  license holder who is subject to a rehabilitation order.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.359. SUBPOENA. (a) On behalf of the acupuncture
  board, the executive director of the medical board or the presiding
  officer of the acupuncture board may issue a subpoena or subpoena
  duces tecum:
           (1) for purposes of an investigation or contested
  proceeding related to:
               (A) alleged misconduct by an acupuncturist; or
               (B) an alleged violation of this chapter or other law
  related to practice as an acupuncturist or to the provision of health
  care under the authority of this chapter; and


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                     (2)
                 to determine whether to:
                (A) issue, suspend, restrict, revoke, or cancel a
  license authorized by this chapter; or
                (B) deny or grant an application for a license under
  this chapter.
       (b) Failure to timely comply with a subpoena issued under this
  section is a ground for:
           (1) disciplinary action by the acupuncture board or any
  other licensing or regulatory agency with jurisdiction over the
  individual or entity subject to the subpoena; and
           (2) denial of a license application.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.360. DELEGATION OF CERTAIN COMPLAINT DISPOSITIONS.
  (a) The acupuncture board may delegate to a committee of medical
  board employees the authority to dismiss or enter into an agreed
  settlement of a complaint that does not relate directly to patient
  care or that involves only administrative violations. The
  disposition determined by the committee must be approved by the
  acupuncture board at a public meeting.
       (b) A complaint delegated under this section shall be referred
  for informal proceedings under Section 205.3541 if:
           (1) the committee of employees determines that the
  complaint should not be dismissed or settled;
           (2) the committee is unable to reach an agreed settlement;
  or
           (3) the affected acupuncturist requests that the complaint
  be referred for informal proceedings.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.27, eff.
  September 1, 2005.


       Sec. 205.361. TEMPORARY SUSPENSION. (a) The presiding officer
  of the acupuncture board, with that board's approval, shall appoint a
  three-member disciplinary panel consisting of acupuncture board




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  members to determine whether a person's license to practice as an
  acupuncturist should be temporarily suspended.
       (b) If the disciplinary panel determines from the information
  presented to the panel that a person licensed to practice as an
  acupuncturist would, by the person's continuation in practice,
  constitute a continuing threat to the public welfare, the
  disciplinary panel shall temporarily suspend the license of that
  person.
       (c) A license may be suspended under this section without
  notice or hearing on the complaint if:
           (1) institution of proceedings for a hearing before the
  acupuncture board is initiated simultaneously with the temporary
  suspension; and
           (2) a hearing is held under Chapter 2001, Government Code,
  and this chapter as soon as possible.
       (d) Notwithstanding Chapter 551, Government Code, the
  disciplinary panel may hold a meeting by telephone conference call if
  immediate action is required and convening of the panel at one
  location is inconvenient for any member of the disciplinary panel.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.28, eff.
  September 1, 2005.


       Sec. 205.362. CEASE AND DESIST ORDER. (a) If it appears to
  the acupuncture board that a person who is not licensed under this
  chapter is violating this chapter, a rule adopted under this chapter,
  or another state statute or rule relating to the practice of
  acupuncture, the board, after notice and opportunity for a hearing,
  may issue a cease and desist order prohibiting the person from
  engaging in the activity.
       (b) A violation of an order under this section constitutes
  grounds for imposing an administrative penalty under Section 205.352.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.29, eff.
  September 1, 2005.




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       Sec. 205.363. REFUND. (a) Subject to Subsection (b), the
  acupuncture board may order a license holder to pay a refund to a
  consumer as provided in an agreement resulting from an informal
  settlement conference instead of or in addition to imposing an
  administrative penalty under this subchapter.
       (b) The amount of a refund ordered under Subsection (a) may not
  exceed the amount the consumer paid to the license holder for a
  service regulated by this chapter. The acupuncture board may not
  require payment of other damages or estimate harm in a refund order.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.30, eff.
  September 1, 2005.


       Sec. 205.364. MODIFICATION OF FINDINGS OR RULINGS BY
  ADMINISTRATIVE LAW JUDGE. The acupuncture board may change a finding
  of fact or conclusion of law or vacate or modify an order of an
  administrative law judge only if the acupuncture board makes a
  determination required by Section 2001.058(e), Government Code.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.31, eff.
  September 1, 2005.


     SUBCHAPTER I.                 CRIMINAL PENALTIES AND OTHER ENFORCEMENT PROVISIONS

       Sec. 205.401. CRIMINAL PENALTY. (a) Except as provided by
  Section 205.303, a person commits an offense if the person practices
  acupuncture in this state without a license issued under this
  chapter.
       (b) Each day a person practices acupuncture in violation of
  Subsection (a) constitutes a separate offense.
       (c) An offense under Subsection (a) is a felony of the third
  degree.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.


       Sec. 205.402. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The
  acupuncture board, the attorney general, or a district or county


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  attorney may bring a civil action to compel compliance with this
  chapter or to enforce a rule adopted under this chapter.
       (b) In addition to injunctive relief or any other remedy
  provided by law, a person who violates this chapter or a rule adopted
  under this chapter is liable to the state for a civil penalty in an
  amount not to exceed $2,000 for each violation.
       (c) Each day a violation continues or occurs is a separate
  violation for purposes of imposing a civil penalty.
       (d) The attorney general, at the request of the acupuncture
  board or on the attorney general's own initiative, may bring a civil
  action to collect a civil penalty.

  Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
  Amended by:
       Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.32, eff.
  September 1, 2005.


                                   SUBCHAPTER J.      ADMINISTRATIVE PENALTIES

       Sec. 205.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The
  acupuncture board by order may impose an administrative penalty
  against a person licensed or regulated under this chapter who
  violates this chapter or a rule or order adopted under this chapter.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.


       Sec. 205.452. PROCEDURE. (a) The acupuncture board by rule
  shall prescribe the procedure by which it may impose an
  administrative penalty.
       (b) A proceeding under this subchapter is subject to Chapter
  2001, Government Code.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.




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       Sec. 205.453. AMOUNT OF PENALTY. (a) The amount of an
  administrative penalty may not exceed $5,000 for each violation.
  Each day a violation continues or occurs is a separate violation for
  purposes of imposing a penalty.
       (b) The amount of the penalty shall be based on:
           (1) the seriousness of the violation, including:
               (A) the nature, circumstances, extent, and gravity of
  any prohibited act; and
               (B) the hazard or potential hazard created to the
  health, safety, or economic welfare of the public;
           (2) the economic harm to property or the environment
  caused by the violation;
           (3) the history of previous violations;
           (4) the amount necessary to deter a future violation;
           (5) efforts to correct the violation; and
           (6) any other matter that justice may require.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.


       Sec. 205.454. NOTICE OF VIOLATION AND PENALTY. (a) If the
  acupuncture board by order determines that a violation has occurred
  and imposes an administrative penalty, the acupuncture board shall
  notify the affected person of the board's order.
       (b) The notice must include a statement of the right of the
  person to judicial review of the order.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.


       Sec. 205.455. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)
  Not later than the 30th day after the date the acupuncture board's
  order imposing the administrative penalty is final, the person shall:
           (1) pay the penalty;
           (2) pay the penalty and file a petition for judicial
  review contesting the occurrence of the violation, the amount of the
  penalty, or both; or


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           (3) without paying the penalty, file a petition for
  judicial review contesting the occurrence of the violation, the
  amount of the penalty, or both.
       (b) Within the 30-day period, a person who acts under
  Subsection (a)(3) may:
           (1) stay enforcement of the penalty by:
               (A) paying the penalty to the court for placement in
  an escrow account; or
               (B) giving to the court a supersedeas bond approved by
  the court for the amount of the penalty and that is effective until
  all judicial review of the acupuncture board's order is final; or
           (2) request the court to stay enforcement of the penalty
  by:
               (A) filing with the court an affidavit of the person
  stating that the person is financially unable to pay the penalty and
  is financially unable to give the supersedeas bond; and
               (B) giving a copy of the affidavit to the presiding
  officer of the acupuncture board by certified mail.
       (c) If the presiding officer of the acupuncture board receives
  a copy of an affidavit under Subsection (b)(2), the presiding officer
  may file with the court a contest to the affidavit not later than the
  fifth day after the date the copy is received.
       (d) The court shall hold a hearing on the facts alleged in the
  affidavit as soon as practicable and shall stay the enforcement of
  the penalty on finding that the alleged facts are true. The person
  who files an affidavit has the burden of proving that the person is
  financially unable to pay the penalty and to give a supersedeas bond.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.


       Sec. 205.456. COLLECTION OF PENALTY. If the person does not
  pay the administrative penalty and the enforcement of the penalty is
  not stayed, the presiding officer of the acupuncture board may refer
  the matter to the attorney general for collection of the penalty.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.


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       Sec. 205.457. DETERMINATION BY COURT. (a) If on appeal the
  court sustains the determination that a violation occurred, the court
  may uphold or reduce the amount of the administrative penalty and
  order the person to pay the full or reduced penalty.
       (b) If the court does not sustain the determination that a
  violation occurred, the court shall order that a penalty is not owed.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.


       Sec. 205.458. REMITTANCE OF PENALTY AND INTEREST. (a) If
  after judicial review the administrative penalty is reduced or not
  imposed by the court, the court shall, after the judgment becomes
  final:
            (1) order that the appropriate amount, plus accrued
  interest, be remitted to the person if the person paid the penalty;
  or
            (2) order the release of the bond in full if the penalty
  is not imposed or order the release of the bond after the person pays
  the penalty imposed if the person posted a supersedeas bond.
       (b) The interest paid under Subsection (a)(1) is the rate
  charged on loans to depository institutions by the New York Federal
  Reserve Bank. The interest is paid for the period beginning on the
  date the penalty is paid and ending on the date the penalty is
  remitted.

  Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff.
  September 1, 2005.




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APPENDIX E
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          <<Prev Rule                                                                                              Next Rule>>



                                              TITLE 22             EXAMINING BOARDS
                                              PART 9               TEXAS MEDICAL BOARD
                                              CHAPTER 183          ACUPUNCTURE
                                              RULE §183.2          Definitions


          The following words and terms, when used in this chapter, shall have the following meanings, unless the
          content clearly indicates otherwise.

           (1) Ability to communicate in the English language--An applicant who has met the requirements set out in
          §183.4(a)(8) of this title (relating to Licensure).

           (2) Acceptable approved acupuncture school--Effective January 1, 1996, and in addition to and consistent
          with the requirements of §205.206 of the Tex. Occ. Code:

             (A) a school of acupuncture located in the United States or Canada which, at the time of the applicant's
          graduation, was a candidate for accreditation by the Accreditation Commission for Acupuncture and
          Oriental Medicine (ACAOM) or another accrediting body recognized by the Texas Higher Education
          Coordinating Board, provides certification that the curriculum at the time of the applicant's graduation was
          equivalent to the curriculum upon which accreditation granted, offered a masters degree or a professional
          certificate or diploma upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal
          studies which at a minimum included the following:

             (i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications,
          and therapeutic combinations of herbs;

              (ii) herbal formulas including traditional herbal formulas and their modifications or variations based on
          traditional methods of herbal therapy;

              (iii) patent herbs including the names of the more common patent herbal medications and their uses; and

              (iv) clinical training emphasizing herbal uses; or

            (B) a school of acupuncture located in the United States or Canada which, at the time of the applicant's
          graduation, was accredited by ACAOM or another accrediting body recognized by the Texas Higher
          Education Coordinating Board, offered a masters degree or a professional certificate or diploma upon
          graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a
          minimum included the following:

             (i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications,
          and therapeutic combinations of herbs;

              (ii) herbal formulas including traditional herbal formulas and their modifications or variations based on
          traditional methods of herbal therapy;


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              (iii) patent herbs including the names of the more common patent herbal medications and their uses; and

              (iv) clinical training emphasizing herbal uses; or

            (C) a school of acupuncture located outside the United States or Canada that is determined by the board to
          be substantially equivalent to a Texas acupuncture school or a school defined in subparagraph (B) of this
          paragraph. An evaluation by the American Association of Collegiate Registrars and Admissions Officers
          (AACRAO) or an evaluation requested by the board may be utilized when making a determination of
          substantial equivalence.

           (3) Acupuncture Act or "the Act"--Chapter 205 of the Texas Occupations Code.

           (4) Acupuncture--

            (A) The insertion of an acupuncture needle and the application of moxibustion to specific areas of the
          human body as a primary mode of therapy to treat and mitigate a human condition, including the evaluation
          and assessment of the condition; and

            (B) the administration of thermal or electrical treatments or the recommendation of dietary guidelines,
          energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by
          subparagraph (A) of this paragraph.

           (5) Acupuncture board or "board"--The Texas State Board of Acupuncture Examiners.

           (6) Acupuncturist--A licensee of the acupuncture board who directly or indirectly charges a fee for the
          performance of acupuncture services.

           (7) Agency--The divisions, departments, and employees of the Texas Medical Board, the Texas Physician
          Assistant Board, and the Texas State Board of Acupuncture Examiners.

           (8) APA--The Administrative Procedure Act, Government Code, §2001.001 et seq.

           (9) Applicant--A party seeking a license from the board.

           (10) Application--An application is all documents and information necessary to complete an applicant's
          request for licensure including the following:

             (A) forms furnished by the board, completed by the applicant:

              (i) all forms and addenda requiring a written response must be printed in ink or typed;

              (ii) photographs must meet United States Government passport standards;

            (B) a fingerprint card, furnished by the acupuncture board, completed by the applicant, that must be
          readable by the Texas Department of Public Safety;

             (C) all documents required under §183.4(c) of this title (relating to Licensure Documentation); and

             (D) the required fee, payable by check through a United States bank.

           (11) Assistant Presiding Officer--A member of the acupuncture board elected by the acupuncture board to

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          fulfill the duties of the presiding officer in the event the presiding officer is incapacitated or absent, or the
          presiding officer's duly qualified successor under Robert's Rules of Order Newly Revised or board rules.

           (12) Board member--One of the members of the acupuncture board, appointed and qualified pursuant to
          §§205.051 - 205.053 of the Act.

           (13) Chiropractor--A licensee of the Texas State Board of Chiropractic Examiners.

           (14) Contested case--A proceeding, including but not restricted to, licensing, in which the legal rights,
          duties, or privileges of a party are to be determined by the board after an opportunity for adjudicative
          hearing.

           (15) Documents--Applications, petitions, complaints, motions, protests, replies, exceptions, answers,
          notices, or other written instruments filed with the medical board or acupuncture board in a licensure
          proceeding or by a party in a contested case.

           (16) Eligible for legal practice and/or licensure in country of graduation--An applicant who has completed
          all requirements for legal practice of acupuncture and/or licensure in the country in which the school is
          located except for any citizenship requirements.

           (17) Executive Director--The executive director of the agency or the authorized designee of the executive
          director.

           (18) Full force--Applicants for licensure who possess a license in another jurisdiction must have it in full
          force and not restricted, canceled, suspended or revoked. An acupuncturist with a license in full force may
          include an acupuncturist who does not have a current, active, valid annual permit in another jurisdiction
          because that jurisdiction requires the acupuncturist to practice in the jurisdiction before the annual permit is
          current.

           (19) Full NCCAOM examination--The National Certification Commission for Acupuncture and Oriental
          Medicine examination, consisting of the following:

            (A) if taken before June 1, 2004: the Comprehensive Written Exam (CWE), the Clean Needle Technique
          Portion (CNTP), the Practical Examination of Point Location Skills (PEPLS), and the Chinese Herbology
          Exam; or

            (B) if taken on or after June 1, 2004: the NCCAOM Foundation of Oriental Medicine Module,
          Acupuncture Module, Point Location Module, the Chinese Herbology Module, and the Biomedicine
          Module.

           (20) Good professional character--An applicant for licensure must not be in violation of or have committed
          any act described in the Act, §205.351.

           (21) Administrative Law Judge (ALJ)--An individual appointed to preside over administrative hearings
          pursuant to the APA.

           (22) License--Includes the whole or part of any board permit, certificate, approval, registration, or similar
          form of permission required by law; specifically, a license and a registration.

           (23) Licensing--Includes the medical board's and acupuncture board's process respecting the granting,

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          denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.

           (24) Medical board--The Texas Medical Board.

           (25) Misdemeanors involving moral turpitude--Any misdemeanor of which fraud, dishonesty, or deceit is an
          essential element; burglary; robbery; sexual offense; theft; child molesting; substance diversion or substance
          abuse; an offense involving baseness, vileness, or depravity in the private social duties one owes to others or
          to society in general; or an offense committed with knowing disregard for justice or honesty.

           (26) Party--The acupuncture board and each person named or admitted as a party in a SOAH hearing or
          contested case before the acupuncture board.

           (27) Person--Any individual, partnership, corporation, association, governmental subdivision, or public or
          private organization of any character.

           (28) Physician--A licensee of the medical board.

           (29) Pleading--Written documents filed by parties concerning their respective claims.

           (30) Presiding officer--The member of the acupuncture board appointed by the governor to preside over
          acupuncture board proceedings or the presiding officer's duly qualified successor in accordance with
          Robert's Rules of Order Newly Revised or board rules.

           (31) Register--The Texas Register.

           (32) Rule--Any agency statement of general applicability that implements, interprets, or prescribes law or
          policy, or describes the procedures or practice requirements of this board. The term includes the amendment
          or repeal of a prior section but does not include statements concerning only the internal management or
          organization of any agency and not affecting private rights or procedures. This definition includes
          substantive regulations.

           (33) Secretary--The secretary-treasurer of the acupuncture board.

           (34) Substantially equivalent to a Texas acupuncture school--A school or college of acupuncture that is an
          institution of higher learning designed to select and educate acupuncture students; provide students with the
          opportunity to acquire a sound basic acupuncture education through training; to develop programs of
          acupuncture education to produce practitioners, teachers, and researchers; and to afford opportunity for
          postgraduate and continuing medical education. The school must provide resources, including faculty and
          facilities, sufficient to support a curriculum offered in an intellectual and practical environment that enables
          the program to meet these standards. The faculty of the school shall actively contribute to the development
          and transmission of new knowledge. The school of acupuncture shall contribute to the advancement of
          knowledge and to the intellectual growth of its students and faculty through scholarly activity, including
          research. The school of acupuncture shall include, but not be limited to, the following characteristics:

            (A) the facilities for didactic and clinical training (i.e., laboratories, hospitals, library, etc.) shall be
          adequate to ensure opportunity for proper education.

             (B) the admissions standards shall be substantially equivalent to a Texas school of acupuncture.

             (C) the basic curriculum shall include courses substantially equivalent to those delineated in the

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          Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) core curriculum at the time of
          applicant's graduation.

             (D) the curriculum shall be of at least 1800 hours in duration.


          Source Note: The provisions of this §183.2 adopted to be effective May 16, 1994, 19 TexReg 3366;
          amended to be effective December 20, 1994, 19 TexReg 9598; amended to be effective January 12, 1996,
          21 TexReg 108; amended to be effective October 22, 1996, 21 TexReg 9828; amended to be effective
          September 15, 1997, 22 TexReg 8998; amended to be effective May 10, 1998, 23 TexReg 4266; amended to
          be effective September 21, 2000, 25 TexReg 9217; amended to be effective May 6, 2001, 26 TexReg 3217;
          amended to be effective January 6, 2002, 26 TexReg 10866; amended to be effective March 6, 2003, 28
          TexReg 1883; amended to be effective September 12, 2004, 29 TexReg 8511; amended to be effective
          January 9, 2005, 29TexReg12188;amendedto be effective May 1, 2006, 31 TexReg 3534; amended to be
          effective January 4, 2007, 31 TexReg 10799; amended to be effective May 6, 2009, 34 TexReg 2675


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           Appendix E to Brief of Appellant                                                                          Page 5 of 17

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                                              TITLE 22            EXAMINING BOARDS
                                              PART 9              TEXAS MEDICAL BOARD
                                              CHAPTER 183         ACUPUNCTURE
                                              RULE §183.4         Licensure

          (a) Qualifications. An applicant must present satisfactory proof to the acupuncture board that the applicant:

           (1) is at least 21 years of age;

           (2) is of good professional character as defined in §183.2 of this title (relating to Definitions);

           (3) has successfully completed 60 semester hours of general academic college level courses, other than in
          acupuncture school, that are not remedial and would be acceptable at the time they were completed for
          credit on an academic degree at a two or four year institution of higher education within the United States
          accredited by an agency recognized by the Higher Education Coordinating Board or its equivalent in other
          states as a regional accrediting body. Coursework completed as a part of a degree program in acupuncture or
          Oriental medicine may be accepted by the acupuncture board if, in the opinion of the acupuncture board,
          such coursework is substantially equivalent to the required hours of general academic college level
          coursework;

           (4) is a graduate of an acceptable approved acupuncture school;

           (5) has taken and passed, within five attempts, each component of the full National Certification
          Commission for Acupuncture and Oriental Medicine (NCCAOM) examination. If an applicant submits to
          multiple attempts on a component before and on or after June 1, 2004, the number of attempts shall be
          combined based on the subject matter tested;

           (6) has taken and passed the CCAOM (Council of Colleges of Acupuncture and Oriental Medicine) Clean
          Needle Technique (CNT) course and practical examination;

           (7) for applicants who apply for a license on or after September 1, 2007, passes a jurisprudence
          examination ("JP exam"), which shall be conducted on the licensing requirements and other laws, rules, or
          regulations applicable to the acupuncture profession in this state. The jurisprudence examination shall be
          developed and administered as follows:

            (A) Questions for the JP Exam shall be prepared by agency staff with input from the Acupuncture board
          and the agency staff shall make arrangements for a facility by which applicants can take the examination.

             (B) Applicants must pass the JP exam with a score of 75 or better within three attempts, unless the Board
          allows an additional attempt based upon a showing of good cause. An applicant who is unable to pass the JP
          exam within three attempts must appear before the Licensure Committee of the board to address the
          applicant's inability to pass the examination and to re-evaluate the applicant's eligibility for licensure. It is at
          the discretion of the committee to allow an applicant additional attempts to take the JP exam.

             (C) An examinee shall not be permitted to bring medical books, compends, notes, medical journals,
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          calculators or other help into the examination room, nor be allowed to communicate by word or sign with
          another examinee while the examination is in progress without permission of the presiding examiner, nor be
          allowed to leave the examination room except when so permitted by the presiding examiner.

             (D) Irregularities during an examination such as giving or obtaining unauthorized information or aid as
          evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to
          terminate an applicant's participation in an examination, invalidate the applicant's examination results, or
          take other appropriate action.

             (E) A person who has passed the JP Exam shall not be required to retake the Exam for another or similar
          license, except as a specific requirement of the board.

           (8) is able to communicate in English as demonstrated by one of the following:

             (A) passage of the NCCAOM examination taken in English;

            (B) passage of the TOEFL (Test of English as a Foreign Language) with a score of at least "intermediate"
          on the Reading and Listening sections and a score of at least "fair" on the Speaking and Writing sections of
          the Internet Based Test (iBT®), or a score of 550 or higher on the paper based test (PBT);

             (C) passage of the TSE (Test of Spoken English) with a score of 45 or higher;

             (D) passage of the TOEIC (Test of English for International Communication) with a score of 500 or
          higher;

            (E) graduation from an acceptable approved school of acupuncture located in the United States or
          Canada; or

            (F) at the discretion of the acupuncture board, passage of any other similar, validated exam testing English
          competency given by a testing service with results reported directly to the acupuncture board or with results
          otherwise subject to verification by direct contact between the testing service and the acupuncture board.

           (9) can demonstrate current competence through the active practice of acupuncture.

             (A) All applicants for licensure shall provide sufficient documentation to the board that the applicant has,
          on a full-time basis, actively treated persons, been a student at an acceptable approved acupuncture school,
          or been on the active teaching faculty of an acceptable approved acupuncture school, within either of the
          last two years preceding receipt of an application for licensure.

            (B) The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40
          weeks duration during a given year.

            (C) Applicants who do not meet the requirements of subparagraphs (A) and (B) of this paragraph may, in
          the discretion of the executive director or board, be eligible for an unrestricted license or a restricted license
          subject to one or more of the following conditions or restrictions:

             (i) limitation of the practice of the applicant to specified components of the practice of acupuncture
          and/or exclusion of specified components of the practice of acupuncture;

              (ii) remedial education; or

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             (iii) such other remedial or restrictive conditions or requirements that, in the discretion of the board are
          necessary to ensure protection of the public and minimal competency of the applicant to safely practice
          acupuncture.

           (10) Alternative License Procedure for Military Spouse.

             (A) An applicant who is the spouse of a member of the armed forces of the United States assigned to a
          military unit headquartered in Texas may be eligible for alternative demonstrations of competency for certain
          licensure requirements. Unless specifically allowed in this subsection, an applicant must meet the
          requirements for licensure as specified in this chapter.

            (B) To be eligible, an applicant must be the spouse of a person serving on active duty as a member of the
          armed forces of the United States and meet one of the following requirements:

              (i) holds an active unrestricted medical license issued by another state that has licensing requirements
          that are substantially equivalent to the requirements for a Texas acupuncture license; or

             (ii) within the five years preceding the application date held an acupuncture license in this state that
          expired and was cancelled for nonpayment while the applicant lived in another state for at least six months.

            (C) Applications for licensure from applicants qualifying under paragraph (9)(A) and (B) of this
          subsection shall be expedited by the board's licensure division.

            (D) Alternative Demonstrations of Competency Allowed. Applicants qualifying under paragraph (9)(A)
          and (B) of this subsection:

              (i) are not required to comply with subsection (c)(1) of this section; and

             (ii) notwithstanding the one year expiration in subsection (b)(1)(B) of this section, are allowed an
          additional 6 months to complete the application prior to it becoming inactive; and

             (iii) notwithstanding the 60 day deadline in subsection (b)(1)(G) of this section, may be considered for
          permanent licensure up to 5 days prior to the board meeting.

          (b) Procedural rules for licensure applicants. The following provisions shall apply to all licensure applicants.

           (1) Applicants for licensure:

           (A) whose documentation indicates any name other than the name under which the applicant has applied
          must furnish proof of the name change;

             (B) whose applications have been filed with the board in excess of one year will be considered expired.
          Any fee previously submitted with that application shall be forfeited unless otherwise provided by §175.5 of
          this title (relating to Payment of Fees or Penalties). Any further request for licensure will require submission
          of a new application and inclusion of the current licensure fee. An extension to an application may be
          granted under certain circumstances, including:

              (i) Delay by board staff in processing an application;

              (ii) Application requires Licensure Committee review after completion of all other processing and will

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          expire prior to the next scheduled meeting;

              (iii) Licensure Committee requires an applicant to meet specific additional requirements for licensure and
          the application will expire prior to deadline established by the Committee;

             (iv) Applicant requires a reasonable, limited additional period of time to obtain documentation after
          completing all other requirements and demonstrating diligence in attempting to provide the required
          documentation;

             (v) Applicant is delayed due to unanticipated military assignments, medical reasons, or catastrophic
          events;

             (C) who in any way falsify the application may be required to appear before the acupuncture board. It will
          be at the discretion of the acupuncture board whether or not the applicant will be issued a Texas acupuncture
          license;

            (D) on whom adverse information is received by the acupuncture board may be required to appear before
          the acupuncture board. It will be at the discretion of the acupuncture board whether or not the applicant will
          be issued a Texas license;

            (E) shall be required to comply with the acupuncture board's rules and regulations which are in effect at
          the time the completed application form and fee are filed with the board;

            (F) may be required to sit for additional oral, written, or practical examinations or demonstrations that, in
          the opinion of the acupuncture board, are necessary to determine competency of the applicant;

            (G) must have the application for licensure completed and legible in every detail 60 days prior to the
          acupuncture board meeting in which they are to be considered for licensure unless otherwise determined by
          the acupuncture board based on good cause.

           (2) Applicants for licensure who wish to request reasonable accommodation due to a disability must submit
          the request at the time of filing the application.

           (3) Applicants who have been licensed in any other state, province, or country shall complete a notarized
          oath or other verified sworn statement in regard to the following:

             (A) whether the license, certificate, or authority has been the subject of proceedings against the applicant
          for the restriction for cause, cancellation for cause, suspension for cause, or revocation of the license,
          certificate, or authority to practice in the state, province, or country, and if so, the status of such proceedings
          and any resulting action; and

            (B) whether an investigation in regard to the applicant is pending in any jurisdiction or a prosecution is
          pending against the applicant in any state, federal, national, local, or provincial court for any offense that
          under the laws of the state of Texas is a felony, and if so, the status of such prosecution or investigation.

           (4) An applicant for a license to practice acupuncture may not be required to appear before the
          acupuncture board or any of its committees unless the application raises questions about the applicant's:

             (A) physical or mental impairment;


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             (B) criminal conviction; or

             (C) revocation of a professional license.

          (c) Licensure documentation.

           (1) Original documents/interview. Upon request, any applicant must appear for a personal interview at the
          board offices and present original documents to a representative of the board for inspection. Original
          documents may include, but are not limited to, those listed in paragraph (2) of this subsection.

           (2) Required documentation. Documentation required of all applicants for licensure shall include the
          following:

             (A) Birth certificate/proof of age. Each applicant for licensure must provide a copy of either a birth
          certificate and translation, if necessary, to prove that the applicant is at least 21 years of age. In instances
          where a birth certificate is not available, the applicant must provide copies of a passport or other suitable
          alternate documentation.

             (B) Name change. Any applicant who submits documentation showing a name other than the name under
          which the applicant has applied must present copies of marriage licenses, divorce decrees, or court orders
          stating the name change. In cases where the applicant's name has been changed by naturalization the
          applicant must submit the original naturalization certificate by hand delivery or by certified mail to the board
          office for inspection.

             (C) Examination scores. Each applicant for licensure must have a certified transcript of grades submitted
          directly from the appropriate testing service to the acupuncture board for all examinations used in Texas for
          purposes of licensure in Texas.

          Cont'd...


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           Appendix E to Brief of Appellant                                                                           Page 10 of 17

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                                         TITLE 22            EXAMINING BOARDS
                                         PART 9              TEXAS MEDICAL BOARD
                                         CHAPTER 183         ACUPUNCTURE
                                         RULE §183.20        Continuing Acupuncture Education

          (a) Purpose. This section is promulgated to promote the health, safety, and welfare of the people of Texas
          through the establishment of minimum requirements for continuing acupuncture education (CAE) for
          licensed Texas acupuncturists so as to further enhance their professional skills and knowledge.

          (b) Minimum Continuing Acupuncture Education. As a prerequisite to the annual registration of the license
          of an acupuncturist, the acupuncturist shall complete 17 hours of CAE each year.

           (1) The required hours shall be from courses that meet one of the following criteria at the time the hours are
          taken:

            (A) are designated or otherwise approved for credit by the Texas State Board of Acupuncture Examiners
          based on a review and recommendation of the course content by the Education Committee of the board as
          described in subsection (n) of this section;

             (B) are offered by approved providers;

            (C) have been approved for CAE credit for a minimum of three years by another state acupuncture board
          having first gone through a formal approval process;

           (D) approved by the NCCAOM (National Certification Commission for Acupuncture and Oriental
          Medicine) for professional development activity credit; or

            (E) are provided outside of the United States by a provider of continuing acupuncture education that are
          acceptable to the Board.

           (2) At least eight hours shall be in general acupuncture in order to ensure that a licensee's CAE is
          comprehensive and that the licensee's overall acupuncture knowledge, skills, and competence are enhanced.

           (3) At least one of the required hours shall be from a course in ethics.

            (4) At least two of the required hours shall be in herbology. More than two hours shall be expected of a
          licensee whose primary practice includes prescriptions of herbs.

           (5) Effective for licensees applying for renewal of their licensees on or after November 30, 2010, at least
          one hour of biomedicine.

           (6) No more than two of the required hours may be from courses that primarily relate to practice
          enhancement or business or office administration.

           (7) Courses may be taught through live lecture, distance learning, or the Internet.

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           (8) No more than a total of eight hours completed under paragraph (1)(D) or (E) of this subsection may be
          applied to the total hours required each registration period.

          (c) Reporting Continuing Acupuncture Education. An acupuncturist must report on the licensee's annual
          registration form whether the licensee has completed the required acupuncture education during the previous
          year.

          (d) Grounds for Exemption from Continuing Acupuncture Education. An acupuncturist may request in
          writing and may be exempt from the annual minimum continuing acupuncture education requirements for
          one or more of the following reasons:

           (1) catastrophic illness;

           (2) military service of longer than one year in duration;

           (3) acupuncture practice and residence of longer than one year in duration outside the United States; and/or

           (4) good cause shown on written application of the licensee which gives satisfactory evidence to the board
          that the licensee is unable to comply with the requirements of continuing acupuncture education.

          (e) Exemption Requests. Exemption requests shall be subject to the approval of the executive director of the
          board, and shall be submitted in writing at least 30 days prior to the expiration of the license.

          (f) Exemption Duration and Renewal. An exemption granted under subsections (d) and (e) of this section
          may not exceed one year, but may be renewed annually upon written request submitted at least 30 days prior
          to the expiration of the current exemption.

          (g) Verification of Credits. The board may require written verification of continuing acupuncture education
          hours from any licensee and the licensee shall provide the requested verification within 30 calendar days of
          the date of the request. Failure to timely provide the requested verification may result in disciplinary action
          by the board.

          (h) Nonrenewal for Insufficient Continuing Acupuncture Education. Unless exempted under the terms of this
          section, the apparent failure of an acupuncturist to obtain and timely report the 17 hours of continuing
          education hours as required and provided for in this section shall result in nonrenewal of the license until
          such time as the acupuncturist obtains and reports the required hours; however, the executive director of the
          board may issue to such an acupuncturist a temporary license numbered so as to correspond to the
          nonrenewed license. Such a temporary license issued pursuant to this subsection may be issued to allow the
          board to verify the accuracy of information related to the continuing acupuncture education hours of the
          acupuncturist and to allow the acupuncturist who has not obtained or timely reported the required number of
          hours an opportunity to correct any deficiency so as not to require termination of ongoing patient care.

          (i) Fee for Issuance of Temporary License. The fee for issuance of a temporary license pursuant to the
          provisions of this section shall be in the amount specified under §175.1 of this title (relating to Application
          Fees); however, the fee need not be paid prior to the issuance of the temporary license, but shall be paid
          prior to the renewal of a permanent license.

          (j) Application of Additional Hours. Continuing acupuncture education hours that are obtained to comply
          with the requirements for the preceding year as a prerequisite for licensure renewal, shall first be credited to
          meet the requirements for that previous year. Once the requirements of the previous year are satisfied, any
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          additional hours obtained shall be credited to meet the continuing acupuncture education requirements of the
          current year. A licensee may carry forward CAE hours earned prior to an annual registration report which
          are in excess of the 17-hour annual requirement and such excess hours may be applied to the following
          years' requirements. A maximum of 34 total excess hours may be carried forward. Excess CAE hours may
          not be carried forward or applied to an annual report of CAE more than two years beyond the date of the
          annual registration following the period during which the hours were earned.

          (k) False Reports/Statements. An intentionally false report or statement to the board by a licensee regarding
          continuing acupuncture education hours reportedly obtained shall be a basis for disciplinary action by the
          board pursuant to the Act, §205.351(a)(2) and (6).

          (l) Monetary Penalty. Failure to obtain and timely report the continuing acupuncture education hours for
          renewal of a license shall subject the licensee to a monetary penalty for late registration in the amount set
          forth in §175.2 and §175.3 of this title (relating to Registration and Renewal Fees and Penalties).

          (m) Disciplinary Action, Conditional Licensure, and Construction. This section shall be construed to allow
          the board to impose requirements for completion of additional continuing acupuncture education hours for
          purposes of disciplinary action and conditional licensure.

          (n) Required Content for Continuing Acupuncture Education Courses. Continuing Acupuncture Education
          courses must meet the following requirements:

           (1) the content of the course, program, or activity is related to the practice of acupuncture or oriental
          medicine, and shall:

             (A) be related to the knowledge and/or technical skills required to practice acupuncture; or

             (B) be related to direct and/or indirect patient care;

           (2) the method of instruction is adequate to teach the content of the course, program, or activity;

           (3) the credentials of the instructor(s) indicate competency and sufficient training, education, and
          experience to teach the specific course, program, or activity;

           (4) the education provider maintains an accurate attendance/participation record on individuals completing
          the course, program, or activity;

           (5) each credit hour for the course, program, or activity is equal to no less than 50 minutes of actual
          instruction or training;

           (6) the course, program, or activity is provided by a knowledgeable health care provider or reputable
          school, state, or professional organization;

           (7) the course description provides adequate information so that each participant understands the basis for
          the program and the goals and objectives to be met; and

           (8) the education provider obtains written evaluations at the end of each program, collate the evaluations in
          a statistical summary, and makes the summary available to the board upon request.

          (o) Continuing Acupuncture Education Approval Requests. All requests for approval of courses, programs,

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          or activities for purposes of satisfying CAE credit requirements shall be submitted in writing to the Education
          Committee of the board on a form approved by the board, along with any required fee, and accompanied by
          information, documents, and materials accurately describing the course, program, or activity, and necessary
          for verifying compliance with the requirements set forth in subsection (n) of this section. At the discretion of
          the board or the Education Committee, supplemental information, documents, and materials may be
          requested as needed to obtain an adequate description of the course, program, or activity and to verify
          compliance with the requirements set forth in subsection (n) of this section. At the discretion of the board or
          the Education Committee, inspection of original supporting documents may be required for a determination
          on an approval request. The Acupuncture Board shall have the authority to conduct random and periodic
          checks of courses, programs, or activities to ensure that criteria for education approval as set forth in
          subsection (n) of this section have been met and continue to be met by the education provider. Upon
          requesting approval of a course, program, or activity, the education provider shall agree to such checks by
          the Acupuncture Board or its designees, and shall further agree to provide supplemental information,
          documents, and material describing the course, program, or activity which, in the discretion of the
          Acupuncture Board, may be needed for approval or continued approval of the course, program, or activity.
          Failure of an education provider to provide the necessary information, documents, and materials to show
          compliance with the standards set forth in subsection (n) of this section shall be grounds for denial of CAE
          approval or recision of prior approval in regard to the course, program, or activity.

          (p) Reconsideration of Denials of Approval Requests. Determinations to deny approval of a CAE course,
          program, or activity may be reconsidered by the Education Committee or the board based on additional
          information concerning the course, program, or activity, or upon a showing of good cause for
          reconsideration. A decision to reconsider a denial determination shall be a discretionary decision based on
          consideration of the additional information or the good cause showing. Requests for reconsideration shall be
          made in writing by the education provider, and may be made orally or in writing by board staff or a
          committee of the board.

          (q) Reconsideration of Approvals. Determinations to approve a CAE course, program, or activity may be
          reconsidered by the Education Committee or the board based on additional information concerning the
          course, program, or activity, or upon a showing of good cause. A decision to reconsider an approval
          determination shall be a discretionary decision based on consideration of the additional information or the
          good cause showing. Requests for reconsideration may be made in writing by a member of the public or may
          be made orally or in writing by board staff or a committee of the board.

          (r) Criteria for Provider Approval.

           (1) In order to be an approved provider, a provider shall submit to the board a provider application on a
          form approved by the board, along with any required fee. All provider applications and documentation
          submitted to the board shall be typewritten and in English.

           (2) To become an approved provider, a provider shall submit to the board evidence that the provider has
          three continuous years of previous experience providing at least one different CAE course in Texas in each
          of those years that were approved by the board. In addition the provider must have no history of complaints
          or reprimands with the board.

           (3) The approval of the provider shall expire three years after it is issued by the board and may be renewed
          upon the filing of the required application, along with any required fee.

           (4) Acupuncture schools and colleges which have been approved by the board, as defined under §183.2(2)
           Appendix E to Brief of Appellant                                                                        Page 14 of 17

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          of this title (relating to Definitions), who seek to be approved providers shall be required to submit an
          application for an approved provider number to the board.

          (s) Requirements of Approved Providers.

           (1) For the purpose of this chapter, the title "approved provider" can only be used when a person or
          organization has submitted a provider application form, and has been issued a provider number unless
          otherwise provided.

           (2) A person or organization may be issued only one provider number. When two or more approved
          providers co-sponsor a course, the course shall be identified by only one provider number and that provider
          shall assume responsibility for recordkeeping, advertising, issuance of certificates and instructor(s)
          qualifications.

           (3) An approved provider shall offer CAE programs that are presented or instructed by persons who meet
          the minimum criteria as described in subsection (t) of this section.

           (4) An approved provider shall keep the following records for a period of four years in one identified
          location:

             (A) Course outlines of each course given.

             (B) Record of time and places of each course given.

             (C) Course instructor curriculum vitaes or resumes.

             (D) The attendance record for each course.

             (E) Participant evaluation forms for each course given.

           (5) An approved provider shall submit to the board the following within ten days of the board's request:

            (A) A copy of the attendance record showing the name, signature and license number of any licensed
          acupuncturists who attended the course.

             (B) The participant evaluation forms of the course.

           (6) Approved providers shall issue, within 60 days of the conclusion of a course, to each participant who
          has completed the course, a certificate of completion that contains the following information:

             (A) Provider's name and number.

             (B) Course title.

             (C) Participant's name and, if applicable, his or her acupuncture license number.

             (D) Date and location of course.

             (E) Number of continuing education hours completed.

            (F) Description of hours indicating whether hours completed are in general acupuncture, ethics, herbology,
          biomedicine, or practice management.


           Appendix E to Brief of Appellant                                                                         Page 15 of 17

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            (G) Statement directing the acupuncturist to retain the certificate for at least four years from the date of
          completion of the course.

           (7) Approved providers shall notify the board within 30 days of any changes in organizational structure of a
          provider and/or the person(s) responsible for the provider's continuing education course, including name,
          address, or telephone number changes.

           (8) Provider approval is non-transferable.

           (9) The board may audit during reasonable business hours records, courses, instructors and related activities
          of an approved provider.

          (t) Instructors.

           (1) Minimum qualifications of an acupuncturist instructor. The instructor must:

             (A) hold a current valid license to practice acupuncture in Texas or other state and be free of any
          disciplinary order or probation by a state licensing authority; and

            (B) be knowledgeable, current and skillful in the subject matter of the course as evidenced through one of
          the following:

              (i) hold a minimum of a master's degree from an accredited college or university or a post-secondary
          educational institution, with a major in the subject directly related to the content of the program to be
          presented;

              (ii) have experience in teaching similar subject matter content within the last two years in the specialized
          area in which he or she is teaching;

              (iii) have at least one year's experience within the last two years in the specialized area in which he or
          she is teaching; or

             (iv) have graduated from an acceptable acupuncture school, as defined under §183.2(2) of this title, and
          have completed 3 years of professional experience in the licensed practice of acupuncture.
           (2) Minimum qualifications of a non-acupuncturist instructor. The instructor must:
             (A) be currently licensed or certified in his or her area of expertise if appropriate;
             (B) show written evidence of specialized training or experience, which may include, but not be limited to,
          a certificate of training or an advanced degree in a given subject area; and
            (C) have at least one year's teaching experience within the last two years in the specialized area in which
          he or she teaches.
          (u) CAE Credit for Course Instruction. Instructors of board-approved CAE courses or courses taught
          through a program offered by an approved provider for CAE credit may receive three hours of CAE credit
          for each hour of lecture, not to exceed six hours of continuing education credit per year, regardless of how
          many hours taught. Participation as a member of a panel presentation for the approved course shall not
          entitle the participant to earn CAE credit as an instructor. No CAE credit shall be granted to school faculty
          members as credit for their regular teaching assignments.

           Appendix E to Brief of Appellant                                                                           Page 16 of 17

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          (v) Expiration, Denial and Withdrawal of Approval.

           (1) Approval of any CAE course shall expire three years after the date of approval.

           (2) The board may withdraw its approval of a provider or deny an application for approval if the provider is
          convicted of a crime substantially related to the activities of a provider.

           (3) Any material misrepresentation of fact by a provider or applicant in any information required to be
          submitted to the board is grounds for withdrawal of approval or denial of an application.

            (4) The board may withdraw its approval of a provider after giving the provider written notice setting forth
          its reasons for withdrawal and after giving the provider a reasonable opportunity to be heard by the board or
          its designee.

           (5) Should the board deny approval of a provider, the provider may appeal the action by filing a letter
          stating the reason(s) with the board. The letter of appeal shall be filed with the board within ten days of the
          mailing of the applicant's notification of the board's denial. The appeal shall be considered by the board.


          Source Note: The provisions of this §183.20 adopted to be effective September 21, 2000, 25 TexReg 9217;
          amended to be effective January 6, 2002, 26 TexReg 10866; amended to be effective September 19, 2002,
          27 TexReg 8770; amended to be effective June 29, 2003, 28 TexReg 4633; amended to be effective
          September 14, 2003, 28 TexReg 7704; amended to be effective March 6, 2005, 30 TexReg 1076; amended
          to be effective January 4, 2007, 31 TexReg 10799; amended to be effective May 6, 2009, 34 TexReg 2675;
          amended to be effective February 28, 2011, 36 TexReg 1278; amended to be effective June 28, 2011, 36
          TexReg 3918


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           Appendix E to Brief of Appellant                                                                         Page 17 of 18
                                                                                                                               17

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APPENDIX F
                                                              hearing denied.


                Court of Appeals of Texas,                                         West Headnotes
                          Austin.
  TEXAS BOARD OF CHIROPRACTIC EXAMINERS,                      [1] Health 198H       176
 Glenn Parker, Executive Director, and Texas Chiropractic
                 Association, Appellants                      198H Health
                            v.                                   198HI Regulation in General
   TEXAS MEDICAL ASSOCIATION, Texas Medical                         198HI(B) Professionals
        Board, and the State of Texas, Appellees.                     198Hk162 Unauthorized Practice
                                                                          198Hk176 k. Chiropractors. Most Cited
                    No. 03–10–00673–CV.                       Cases
                         July 6, 2012.
                                                              Health 198H        192
 Background: Medical association brought action against
 Texas Board of Chiropractic Examiners (TBCE) seeking         198H Health
 declarations    that    various     provisions   of   the       198HI Regulation in General
 scope-of-practice rule that permitted needle electromyog-           198HI(B) Professionals
 raphy (EMG) and manipulation under anesthesia (MUA)                   198Hk191 Regulation of Professional Conduct;
 were invalid because they exceeded the statutory scope of    Boards and Officers
 chiropractic and constituted the unlawful practice of                    198Hk192 k. In general. Most Cited Cases
 medicine. The District Court, Travis County, Stephen
 Yelenosky, J., invalidated rules. TBCE appealed.
                                                                   Texas Board of Chiropractic Examiners (TBCE) ex-
                                                              ceeded its authority in promulgating rules allowing chiro-
 Holdings: The Court of Appeals, Bob Pemberton, J., held      practors to perform needle electromyography (EMG);
 that:                                                        some types of EMG needles had beveled, blade-like edges,
 (1) TBCE exceeded its authority in promulgating rules        which were designed to slice or cut through tissue, and
 allowing chiropractors to perform needle EMG;                thus, the use of the needles constituted an “incisive” pro-
 (2) MUA was a surgical procedure excluded from the           cedure that was excluded by statute from the scope of
 statutory scope of chiropractic;                             chiropractic. V.T.C.A., Occupations Code § 201.002(b–c);
 (3) rule allowing chiropractors to make certain diagnosis    22 TAC § 75.17(a)(3).
 regarding the biomechanical condition of the spine or
 musculoskeletal system fell within the statutory scope of
                                                              [2] Health 198H       176
 chiropractic; and
 (4) rule allowing chiropractors to diagnose a subluxation
 complex of the spine or musculoskeletal system fell within   198H Health
 the statutory scope of chiropractic.                            198HI Regulation in General
                                                                    198HI(B) Professionals
                                                                      198Hk162 Unauthorized Practice
      Affirmed in part, reversed in part, and remanded; re-
                                                                          198Hk176 k. Chiropractors. Most Cited




Appendix F to Brief of Appellant                                                                              Page 1 of 32
 Cases                                                        corporated the 2004 version of American Medical Asso-
                                                              ciation's (AMA) Current Procedural Terminology (CPT)
 Health 198H          192                                     Codebook in defining “surgical procedure,” rather than the
                                                              CPT Codebook in whatever manner the AMA might revise
                                                              or amend it in the future, and thus, the Legislature did not
 198H Health
                                                              improperly delegate its authority in a way that violated the
    198HI Regulation in General
                                                              separation-of-powers clause of the Texas Constitution.
        198HI(B) Professionals
                                                              Vernon's Ann.Texas Const. Art. 3, § 1; V.T.C.A., Occu-
          198Hk191 Regulation of Professional Conduct;
                                                              pations Code § 201.002(a)(4).
 Boards and Officers
             198Hk192 k. In general. Most Cited Cases
                                                              [4] Health 198H        176
     Manipulation under anesthesia (MUA) was a “surgical
 procedure” excluded from the statutory scope of chiro-       198H Health
 practic, and thus, rules promulgated by the Texas Board of      198HI Regulation in General
 Chiropractic Examiners (TBCE) allowing chiropractors to            198HI(B) Professionals
 perform MUA were invalid, where the American Medical                 198Hk162 Unauthorized Practice
 Association's annual Current Procedural Terminology                      198Hk176 k. Chiropractors. Most Cited
 (CPT) Codebook listed MUA as a medical procedure in the      Cases
 surgery section of the Codebook. V.T.C.A., Occupations
 Code §§ 201.002(a)(4), 201.154; 22 TAC §                     Health 198H        192
 75.17(e)(2)(O).
                                                              198H Health
 [3] Constitutional Law 92         2442                          198HI Regulation in General
                                                                     198HI(B) Professionals
 92 Constitutional Law                                                 198Hk191 Regulation of Professional Conduct;
    92XX Separation of Powers                                 Boards and Officers
       92XX(B) Legislative Powers and Functions                           198Hk192 k. In general. Most Cited Cases
           92XX(B)4 Delegation of Powers
               92k2442 k. To non-governmental entities.            In the absence of a separate notice of appeal filed by
 Most Cited Cases                                             medical association, appellate court lacked jurisdiction to
                                                              consider medical association's claim that the statutory
 Health 198H          105                                     scope of chiropractic did not include “diagnosing” a con-
                                                              dition, as opposed to analyzing, examining, or evaluating
                                                              it, where claim sought relief beyond that which association
 198H Health
                                                              was afforded in the district court's judgment, which
     198HI Regulation in General
                                                              granted motions for partial summary judgment and ren-
        198HI(A) In General
                                                              dered a take-nothing judgment as to association's claims
          198Hk102 Constitutional and Statutory Provi-
                                                              for a declaration that the use of “diagnosis” in itself ren-
 sions
                                                              dered applicable rule invalid. Rules App.Proc., Rule
             198Hk105 k. Validity. Most Cited Cases
                                                              25.1(c); 22 TAC § 75.17(d).

      Statute regarding scope of chiropractic practice in-
                                                              [5] Health 198H        176




Appendix F to Brief of Appellant                                                                               Page 2 of 32
                                                                                 198Hk192 k. In general. Most Cited Cases
 198H Health
    198HI Regulation in General                                         Although the definition of subluxation complex as
       198HI(B) Professionals                                      used in rule promulgated by the Texas Board of Chiro-
         198Hk162 Unauthorized Practice                            practic Examiners (TBCE) allowing chiropractors to make
             198Hk176 k. Chiropractors. Most Cited                 certain diagnosis indicated that its existence might have
 Cases                                                             functional or pathological consequences or that it might
                                                                   affect essentially every part of the body, the rule itself only
 Health 198H          192                                          allowed chiropractors to render an analysis, diagnosis, or
                                                                   other opinion regarding a subluxation complex of the spine
                                                                   or musculoskeletal system, and thus, the rule fell within the
 198H Health
                                                                   statutory scope of chiropractic. V.T.C.A., Occupations
    198HI Regulation in General
                                                                   Code § 201.002(b); 22 TAC § 75.17(d)(1)(B).
        198HI(B) Professionals
          198Hk191 Regulation of Professional Conduct;
 Boards and Officers                                               West Codenotes
             198Hk192 k. In general. Most Cited Cases              Held Invalid22 TAC § 75.17(a)(3), (e)(2)(O). *465 Jason
                                                                   D. Ray, Jennifer S. Riggs, Riggs, Aleshire & Ray, P.C., Joe
                                                                   H. Thrash, Assistant Attorney General, Environmental
      Rule promulgated by the Texas Board of Chiropractic
                                                                   Protection & Administrative Law Division, Matt C. Wood,
 Examiners (TBCE) allowing chiropractors to make certain
                                                                   Baker Botts, L.L.P., Austin, TX, for appellant.
 diagnosis restricted any such diagnosis to the biomechan-
 ical condition of the spine or musculoskeletal system, and
 thus, the rule fell within the statutory scope of chiropractic.   David F. Bragg, Law Offices of David F. Bragg, P.C.,
 V.T.C.A., Occupations Code § 201.002(b)(1); 22 TAC §              Bastrop, TX, Nancy K. Juren, Angela V. Colmenero, As-
 75.17(d)(1)(A).                                                   sistant Attorney General, General Litigation Division,
                                                                   Donald P. Wilcox, Andrea Schwab, C.J. Francisco, Office
                                                                   of General Counsel, Texas Medical Association, Austin,
 [6] Health 198H          176
                                                                   TX, for appellee.

 198H Health
                                                                   *466 Before Chief Justice JONES, Justices PEMBERTON
    198HI Regulation in General
                                                                   and HENSON.
       198HI(B) Professionals
         198Hk162 Unauthorized Practice
             198Hk176 k. Chiropractors. Most Cited                                         OPINION
 Cases                                                             BOB PEMBERTON, Justice.
                                                                        We withdraw our opinion and judgment dated April 5,
                                                                   2012, and substitute the following in its place. The motion
 Health 198H          192
                                                                   for rehearing filed by appellee Texas Medical Association
                                                                   is denied.
 198H Health
    198HI Regulation in General
                                                                        The Texas Board of Chiropractic Examiners (TBCE),
        198HI(B) Professionals
                                                                   its executive director, and the Texas Chiropractic Associ-
          198Hk191 Regulation of Professional Conduct;
                                                                   ation appeal a final district court judgment invalidating
 Boards and Officers
                                                                   portions of TBCE's recently adopted administrative rule




Appendix F to Brief of Appellant                                                                                      Page 3 of 32
 defining the scope of practice of chiropractic. See 22 Tex.           However, the Legislature has carved out of this broad
 Admin. Code § 75.17 (2011) (Tex. Bd. of Chiropractic            definition of “practicing medicine”—and, thus, exempted
 Exam'rs, Scope of Practice). The rule provisions at issue       from the Medical Practice Act's education, training, and
 purport to authorize TBCE's licensees to perform proce-         licensing standards and the TMB's regulatory authority—a
 dures known as manipulation under anesthesia and needle         variety of other health-related fields on which it has im-
 electromyography, and to “diagnose” certain conditions.         posed different legal requirements and regulations. See id.
 See id. § 75.17(a)(3), (c)(2)(D), (c)(3)(A), (d)(1)(A)–(B),     § 151.052. Such exemptions, our Texas high courts have
 (e)(2)(O). We will affirm the judgment in part and reverse      reasoned, do not amount to an unconstitutional “preference
 and remand in part.                                             ... to any school[ ] of medicine” to the extent the exempted
                                                                 treatment or method does not extend to the “whole body.”
                      BACKGROUND                                 See Schlichting v. Texas State Bd. of Med. Exam'rs, 158
      Article XVI, section 31 of the Texas Constitution          Tex. 279, 310 S.W.2d 557, 564 (1958); Ex parte Halsted,
 authorizes the Legislature to “pass laws prescribing the        147 Tex.Crim. 453, 182 S.W.2d 479, 486 (1944). Among
 qualifications of practitioners of medicine in this State,”     the exemptions, the Legislature *467 has included “a li-
 with the caveat that “no preference shall ever be given by      censed chiropractor engaged strictly in the practice of
 law to any schools of medicine.” Tex. Const. art. XVI, §        chiropractic as defined by law.” See Tex. Occ.Code Ann. §
 31. In turn, the Legislature has enacted the Medical Prac-      151.052(a)(3). Chiropractors are currently regulated under
 tice Act, in which it has delegated broad authority to the      chapter 201 of the occupations code, which defines the
 Texas Medical Board (TMB) to regulate the “practice of          permissible scope of chiropractic practice, imposes its own
 medicine” in this state, mandated that a person cannot          set of educational and licensing requirements, and dele-
 lawfully “practice medicine” without a TMB-issued li-           gates authority to TBCE to administer the regime. See id.
 cense, and imposed rigorous education and training re-          §§ 201.001–.606 (West 2004 & Supp. 2011).
 quirements as a prerequisite to licensing eligibility. See
 Tex. Occ.Code Ann. §§ 151.001–.056 (West 2004 & Supp.                The net effect of the statutory interplay is that a person
 2011) (Medical Practice Act); id. §§ 151.003(2) (providing      licensed by TBCE as a chiropractor but not by the TMB to
 that TMB “should remain the primary means of licensing,         “practice medicine” (i.e., as a physician FN1) can lawfully
 regulating, and disciplining physicians.”), 152.001(a)          do things that would otherwise constitute “practicing
 (West Supp. 2011) (designating TMB as agency with               medicine” as long as he remains within the statutory scope
 power to regulate the practice of medicine), 153.001(3)         of chiropractic under chapter 201. However, to the extent
 (West 2004) (granting TMB the authority to adopt rules to       he exceeds the statutory scope of chiropractic, he would
 regulate the practice of medicine), 155.001 (West 2004)         subject himself to the Medical Practice Act—and practice
 (requiring license to practice medicine), 155.003 (West         medicine unlawfully. See id. §§ 151.002(a)(13), 201.002;
                                                                 FN2
 Supp. 2011) (setting forth requirements for license to              see also Teem v. State, 79 Tex.Crim. 285, 183 S.W.
 practice medicine). The Legislature has defined “practic-       1144 (1916) (involving prosecution of chiropractor for
 ing medicine” under the Medical Practice Act as “the di-        unlawfully practicing medicine prior to Texas's legislative
 agnosis, treatment, or offer to treat a mental or physical      recognition and legalization of chiropractic). Another
 disease or disorder or a physical deformity or injury by any    consequence of this statutory interplay is a long history of
 system or method, or the attempt to effect cures of those       professional, scientific, or economic antagonism between
 conditions” by a person who either “directly or indirectly      chiropractors and the medical community, and resultant
 charges money or other compensation for those services”         disputes, spanning all three branches of government, re-
 or publicly professes to be a physician or surgeon. See id. §   garding where any legal line between chiropractic and the
 151.002(a)(13).                                                 practice of medicine is or should be. Key participants in
                                                                 these disputes have included the two professional associa-




Appendix F to Brief of Appellant                                                                                    Page 4 of 32
 tions that are parties to this appeal, the Texas Chiropractic    the biomechanical condition of the spine and musculo-
 Association (TCA) and the Texas Medical Association              skeletal system of the human body” and (2) “adjustment,
 (TMA), which advocate on behalf of the respective inter-         manipulation, or other *469 procedures in order to im-
 ests of chiropractors and physicians and their some-             prove subluxation or the biomechanics of the musculo-
 times-competing views of patient welfare.                        skeletal system.” See id. §§ 1, 3, 1989 Tex. Gen. Laws at
                                                                  1005–06.
           FN1. See Tex. Occ.Code Ann. § 151.002(a)(12)
           (West Supp. 2011) (“physician” refers to a li-                 FN3. While different cultures throughout history
           censee under the Medical Practice Act).                        have employed manipulation of human bones and
                                                                          tissue as an intended means of improving health,
           FN2. Conversely, physicians do not subject                     David D. Palmer is typically credited with origi-
           themselves to chapter 201 if their conduct comes               nating the modern theory of chiropractic in 1895,
           within the statutory scope of chiropractic. See id.            when he reportedly restored a man's hearing by
           § 201.003(b) (West 2004) (Chapter 201 “does not                using spinal manipulation. See Walter I. Ward-
           limit or affect the rights and powers of a physician           well, Chiropractic: History & Evolution of a New
           licensed in this state to practice medicine.”).                Profession 2 (1992); Erland Pettman, A History of
                                                                          Manipulative Therapy, 15 The Journal of Manual
                                                                          & Manipulative Therapy 165, 165–66 (2007);
      Chiropractic was historically rooted in a theory that a
                                                                          Judith Turner, Gale Encyclopedia of Medicine:
 wide range of human health problems stem from spinal
                                                                          Chiropractic (2006). Palmer concluded that mis-
 misalignment—or a broader category of spinal disorders
                                                                          alignment or “subluxations” in the spine created
 termed “subluxations”—and can be cured through manip-
                                                                          pressure on or irritation of nerves that, in turn,
 ulation of vertebrae.FN3 At its 1949 inception, Texas's
                                                                          could lead to various health problems, disease, or
 statutory regime defining and regulating chiropractic re-
                                                                          disability. Wardwell at 2; Pettman at 168. Based
 flected*468 this traditional focus on ascertaining spinal
                                                                          on this theoretical premise, Palmer sought to de-
 problems and manipulating vertebrae as an intended means
                                                                          velop a procedure for adjusting misaligned ver-
 of cure.FN4 However, over the ensuing decades, Texas
                                                                          tebrae as a means of improving health and,
 chiropractors evidently came to engage in identifying and
                                                                          eventually, founded this country's first chiro-
 treating a wider range of musculoskeletal problems with a
                                                                          practic school, the Palmer School of Cure in
 wider range of procedures or methods. In 1989, the Leg-
                                                                          Davenport, Iowa, currently known as the Palmer
 islature saw fit to take account of these developments
                                                                          College of Chiropractic. See Palmer College of
 through amendments to the statutory definition of chiro-
                                                                          Chiropractic, http:// www. palmer. edu/ History
 practic practice that expanded the focus of chiropractic
                                                                          (last visited Mar. 13, 2011). While today's chiro-
 beyond the spine to the more general “biomechanics” of
                                                                          practors typically recognize the importance of
 the “musculoskeletal system,” and added somewhat
                                                                          other factors in disease causation, they still ma-
 broader language regarding the treatments or methods
                                                                          nipulate spines to correct musculoskeletal prob-
 chiropractors could perform. See Act of May 12, 1989,
                                                                          lems. See Wardwell at 2.
 71st Leg., R.S., ch. 227, §§ 1–3, 1989 Tex. Gen. Laws
 1005, 1005–06. FN5 Although procedures entailing “sur-
 gery, drugs that require a prescription to be dispensed,                 FN4. The 1949 enactment defined the practice of
 x-ray therapy, or therapy that exposes the body to radio-                chiropractic as follows:
 active material” were expressly excluded from the prac-
 tice, chiropractors were now permitted to use (1) “objec-                  Any person shall be regarded as practicing
 tive or subjective means to analyze, examine, or evaluate                  chiropractic within the meaning of this Act who




Appendix F to Brief of Appellant                                                                                 Page 5 of 32
             shall employ objective or subjective means                   lyze, examine, or evaluate the biomechanical
             without the use of drugs, surgery, X-ray therapy             condition of the spine and musculoskeletal
             or radium therapy, for the purpose of ascer-                 system of the human body;
             taining the alignment of the vertebrae of the
             human spine, and the practice of adjusting the               (2) uses adjustment, manipulation, or other
             vertebrae to correct any subluxation or misa-                procedures in order to improve subluxation or
             lignment thereof, and charge therefor, directly              the biomechanics of the musculoskeletal sys-
             or indirectly, money or other compensation; or               tem; or
             who shall hold himself out to the public as a
             chiropractor or shall use either the term “chi-
                                                                          (3) holds himself out to the public as a chiro-
             ropractor,” “chiropractic,” “doctor of chiro-
                                                                          practor or uses the term “chiropractor,” “chi-
             practic,” or any derivative of any of the above
                                                                          ropractic,” “doctor of chiropractic,” “D.C.,” or
             in connection with his name.
                                                                          any derivative of those terms in connection
                                                                          with his name.
             See Act of Apr. 21, 1949, 51st Leg., R.S., ch.
             94, § 1, 1949 Tex. Gen. Laws 160, 160–61. The
                                                                          Act of May 12, 1989, 71st Leg., R.S., ch. 227, §
             Texas Legislature first enacted a statute recog-
                                                                          1, 1989 Tex. Gen. Laws 1005. Excluded from
             nizing chiropractic and exempting it from the
                                                                          the scope of chiropractic practice, however,
             laws governing the practice of medicine in
                                                                          were the provision of “surgery, drugs that re-
             1943. See Act of May 5, 1943, 48th Leg., R.S.,
                                                                          quire a prescription to be dispensed, x-ray
             ch. 359, §§ 1–17, 1943 Tex. Gen. Laws 627.
                                                                          therapy, or therapy that exposes the body to
             The 1943 statute authorized chiropractors to
                                                                          radioactive material.” See id. § 3, 1989 Tex.
             treat the “spinal column, and its connecting
                                                                          Gen. Laws at 1006. Amendment proponents
             tissues.” Id. § 3, 1943 Tex. Gen. Laws at
                                                                          evidently touted the changes as necessary to
             628–29. The Court of Criminal Appeals later
                                                                          modernize the “outdated” statutory definition
             invalidated this law as an unconstitutional
                                                                          to “reflect the education, training, and clinical
             “preference” to chiropractic, reasoning that
                                                                          expertise of chiropractors today” and to ac-
             “the spinal column and its connecting tissues
                                                                          count for a study showing that “86.8% of the
             embraces the entire body and all organs there-
                                                                          conditions treated by chiropractors can be
             of.” See Ex parte Halsted, 147 Tex.Crim. 453,
                                                                          classified as musculoskeletal problems” rather
             182 S.W.2d 479, 486 (1944) (emphasis added).
                                                                          than spinal misalignment. See Senate Comm.
             The current statutory regime defining and reg-
                                                                          on Health & Human Servs., Bill Analysis, Tex.
             ulating chiropractic traces back to the 1949
                                                                          S.B. 169, 71st Leg., R.S. (1989).
             enactment.

                                                                     In the aftermath of the 1989 amendments, a number of
           FN5. The amended definition provided:
                                                                controversies arose concerning whether particular exami-
                                                                nation or treatment procedures exceeded the statutory
             A person shall be regarded as practicing chi-      scope of chiropractic and, relatedly, the extent to which
             ropractic within the meaning of this Act if the    TBCE, by permitting chiropractors to perform them, was
             person:                                            abetting unlawful encroachments upon the practice of
                                                                medicine. Areas of dispute included the extent to which
             (1) uses objective or subjective means to ana-     chiropractors could perform procedures entailing the in-




Appendix F to Brief of Appellant                                                                                Page 6 of 32
 sertion of needles into the human body, such as acupunc-         under anesthesia.” See id. § 19, 1995 Tex. Gen. Laws at
 ture and a procedure known as needle electromyography,           4803. These provisions were later codified in sections
 or “needle EMG.” Simply described, needle EMG entails            201.002 and 201.154 of the occupations code. See Tex.
 the insertion of needle electrodes into a patient's muscle       Occ.Code Ann. §§ 201.002(a)(3) (“ ‘Incisive or surgical
 and transmitting a small electric current as a means of          procedure’ includes making an incision into any tissue,
 evaluating nerve conductivity. Another subject of contro-        cavity or organ by any person or implement. The term does
 versy was a treatment method known as manipulation               not include the use of a needle for the purpose of drawing
 under anesthesia, or “MUA.” As the term suggests, MUA            blood for diagnostic testing.”), .002(c) ( “The practice of
 entails a chiropractor's manipulation of the musculoskele-       chiropractic does not include ... incisive or surgical pro-
 tal system while the patient is under general anesthesia so      cedures.”), .154 (“Notwithstanding any other provision of
 as to facilitate a greater range of motion than if the patient   this chapter, the [TBCE] may not adopt a process to certify
 was feeling pain or resisting.FN6                                chiropractors to perform manipulation under anesthe-
                                                                  sia.”).FN7
           FN6. The anesthesia itself is evidently adminis-
           tered by a qualified health-care professional other             FN7. TMA and TMB, in particular, place great
           than a chiropractor, including an anesthesiologist,             emphasis on the legislative history of these
           a physician.                                                    amendments. Although versions of the changes
                                                                           had appeared in earlier bills considered by the
      Against this backdrop, in 1995 the Legislature made                  Seventy–Fourth Legislature, the amendments'
 several important amendments to the statutory scope of                    immediate origins were a House floor amendment
 chiropractic. These included specifying that the treatment                that Representative Tom Uher proposed to add to
 methods that defined the scope of chiropractic were                       a bill that had theretofore focused chiefly on rural
 “nonsurgical, nonincisive procedures, including but not                   health-care issues. Although containing the same
 limited to adjustment and manipulation, in order to im-                   limitation of treatment methods to “nonsurgical,
 prove the subluxation complex or the biomechanics of the                  nonincisive procedures” and exclusion of “inci-
 musculoskeletal system,” and likewise excluding “incisive                 sive or surgical procedures” that ultimately ap-
 or surgical procedures” from the scope of chiropractic                    peared in the final, enacted version, Uher's
 practice. See Act of May 29, 1995, 74th Leg., R.S., ch. 965,              amendment defined “incisive procedure” to “in-
 §§ 13, 18, 1995 Tex. Gen. Laws 4789, 4802–03 (current                     clude[ ] entry into any tissue, cavity, or organ by
 version at Tex. Occ.Code Ann. § 201.002(b)–(c)). The                      any person or implement,” subject to some broad
 Legislature defined or described “incisive or surgical                    exceptions:
 procedures” as follows:
                                                                             [“incisive procedure”] does not include exam-
   In this act, “incisive or surgical procedure” includes but                ination of the ear, nose, and throat, drawing
   is not limited to making an incision into any tissue, cav-                blood for the purposes of diagnostic testing, or
   ity or organ by any person or implement. It does not in-                  acupuncture or needle EMG if the chiropractor
   clude the use of a needle for the purpose of drawing                      is certified to perform acupuncture or needle
   blood for diagnostic testing.                                             EMG under ... this Act.


      See id. § 18, 1995 Tex. Gen. Laws at 4803. Addition-                   Floor Amendment No. 9 to Tex. S.B. 673, at 2,
 ally, the Legislature prohibited TBCE from “adopt[ing] a                    74th Leg., R.S. (May 22, 1995). Additionally,
 process to certify chiropractors to perform manipulation                    as the exceptions contemplated, other provi-
                                                                             sions of Uher's proposed amendment would




Appendix F to Brief of Appellant                                                                                    Page 7 of 32
             have required TBCE to adopt procedures and         needle EMG, acupuncture, or MUA beyond the scope of
             standards for “certifying” chiropractors to        chiropractic practice.FN8 Meanwhile, the Attorney General
             perform needle EMG and acupuncture. See id.        issued opinions reasoning that, to the contrary, any pro-
             at 6. The amendment imposed a similar man-         cedure involving the insertion of a needle into the body
             date requiring TBCE to adopt procedures to         (other than the excepted blood draw for diagnostic use)
             certify chiropractors to perform MUA. See id.      was “incisive” and thus excluded it from the scope of
             at 5.                                              chiropractic.FN9 Applying this reasoning, for example, the
                                                                Attorney General opined that acupuncture was an “inci-
             In response to Uher's proposed amendment,          sive” procedure and thus excluded from the scope of chi-
             then-Representative (later Senator) Kyle Janek,    ropractic. FN10 Thereafter, the Legislature amended the
             a physician, proposed to amend Uher's              statutory definition of acupuncture, which had previously
             amendment to, in relevant part, (1) delete the     been stated in terms of “the insertion of an acupuncture
             exceptions for needle EMG and acupuncture in       needle,” see Act of May 30, 1993, 73d Leg., R.S., ch. 862,
             Uher's definition or description of “incisive”     § 37, 1993 Tex. Gen. Laws 3374, 3400, to refer instead to
             procedures; (2) delete the mandate that TBCE       “the nonsurgical, nonincisive insertion of an acupuncture
             adopt processes for certifying chiropractors to    needle.” See Act of May 28, 1997, 75th Leg., R.S., ch.
             perform needle EMG and acupuncture; and (3)        1170, § 1, 1997 Tex. Gen. Laws 4418 (emphasis added)
             invert the mandate that TBCE “shall adopt”         (current version at Tex. Occ.Code Ann. § 205.001(2)(A)
             processes for certifying chiropractors to per-     (West Supp. 2011)); see also Tex. Att'y Gen. Op. No.
             form MUA into an explicit prohibition that         DM–471 (1998) (concluding that the *471 1997 amend-
             TBCE “shall not” adopt processes to “certify”      ment served to ensure that the practice of acupuncture
             chiropractors to perform MUA. See Floor            would be within the practice of chiropractic, thereby su-
             Amendment No. 12 to Tex. S.B. 673, 74th            perseding the prior opinion). But the broader underlying
             Leg., R.S. (May 22, 1995). During the debate       disagreement concerning the use of needles in chiropractic
             on these amendments, Representative Janek          remained,FN11 as did the controversy regarding whether
             expressed his opinion that “[t]his amendment       chiropractors could perform MUA. However, due in part to
             would take out any ability by the chiropractors    the advisory nature of the administrative pronouncements
             to put needles in people.” Debate on S.B. 673      and related jurisdictional and procedural limitations, the
             on the Floor of the House, 74th Leg., R.S. (May    controversies eluded judicial resolution for several
             22, 1995) (statement of Rep. Janek) (transcript    years.FN12
             available from Senate Staff Services). The
             House of Representatives ultimately adopted                FN8. See Tex. Bd. of Chiropractic Exam'rs, Ac-
             Uher's amendment with Janek's modifications                upuncture, MUA, and Needle EMG (ratified
             and a few additional, less sweeping changes                September 11, 1997, amended May 7, 1998, and
             and refinements. See Floor Amendment Nos.                  May 1999); Tex. Bd. Chiropractic Exam'rs, RE:
             9–14 to Tex. S.B. 673 (May 22–24, 1995).                   Scope of Practice Clarification regarding Nerve
             These changes, in turn, were ultimately enacted            Conduction Studies (Jan. 25, 2002) (memo. to all
             into law, as described above.                              Texas chiropractic licensees).


      *470 In the aftermath of these changes to the statutory           FN9. See, e.g., Tex. Att'y Gen. Op. No. DM–472,
 scope of chiropractic, TBCE issued what it styled as in-               at 3 (1998).
 formal “statements” or “memoranda” advising its licensees
 of its view that the 1995 amendments had not rendered                  FN10. See Tex. Att'y Gen. Op. No. DM–415, at




Appendix F to Brief of Appellant                                                                               Page 8 of 32
           4–6 (1996).                                                    properly before the court).


           FN11. See Tex. Att'y Gen. Op. No. DM–472, at 6            The      Legislature      returned    to    chiropractic
           (concluding that “the use of a needle ... for any     scope-of-practice issues in 2005 when TBCE came up for
           purpose other than the drawing of blood for di-       sunset review. Although it did not address either needle
           agnostic purposes or the practice of acupuncture      EMG or MUA through statutory amendments expressly
           is not within the scope of practice of a licensed     mentioning either procedure, the Legislature did add a new
           Texas chiropractor.”).                                description of the “surgical procedures” that were excluded
                                                                 from chiropractic:
           FN12. See O'Neal v. Texas Bd. of Chiropractic
           Exam'rs, No. 03–03–00270–CV, 2004 WL                    “Surgical procedure” includes a procedure described in
           2027787, at *3, 2004 Tex.App. LEXIS 8254, at            the surgery section of the common procedure coding
           *9 (Tex.App.-Austin Sept. 10, 2004, no pet.)            system as adopted by the Centers for Medicare and
           (mem. op.) (holding that suit by chiropractor           Medicaid Services of the United States Department of
           against TBCE seeking declaration that needle            Health and Human Services.
           EMG was within the scope of chiropractic prac-
           tice did not present a justiciable controversy             See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, §
           “where the ... Board indisputably agrees with the     1, 2005 Tex. Gen. Laws 3464, 3465 (codified at Tex.
           legal interpretation ... that [the chiropractor]      Occ.Code Ann. § 201.002(a)(4)). The Legislature also
           seeks” and there was no more than speculation         mandated that TBCE “adopt rules clarifying what activities
           that it would change that view; also observing that   are included within the scope of the practice of chiropractic
           Attorney General opinions did not in themselves       and what activities are outside of that scope,” including
           present a justiciable controversy); Continental       “clearly specify[ing] the procedures that chiropractors may
           Cas. Co. v. Texas Bd. of Chiropractic Exam'rs,        perform” and “any equipment and the use of that equip-
           No. 03–00–00513–CV, 2001 WL 359632, at *1,            ment that is prohibited.” See id. § 8, 2005 Tex. Gen. Laws
           2001 Tex.App. LEXIS 2336, at *2                       at 3466 (codified at Tex. Occ.Code Ann. §§
           (Tex.App.-Austin Apr. 12, 2001, no pet.) (mem.        201.1525–.1526). Among other implications, this
           op., not designated for publication) (holding court   rule-making mandate ensured that TBCE would issue
           lacked jurisdiction to hear insurance company's       scope-of-practice directives to its licensees in a form that
           claim that TBCE improperly authorized chiro-          opponents could test in court to determine whether they
           practors to perform MUA and needle EMG be-            exceeded the underlying statutory scope of chiropractic.
           cause there was no justiciable controversy where      See Tex. Gov't Code Ann. § 2001.038 (West 2008) (cre-
           company was not a licensee or otherwise subject       ating cause of action for declaratory relief regarding “the
           to TBCE); see also Texas Mut. Ins. Co. v. Stelzer,    validity or applicability of a rule” where “it is alleged that
           No. 03–06–00675–CV, 2010 WL 142501, at                the rule or its threatened *472 application interferes with or
           *1–3, 2010 Tex.App. LEXIS 236, *2–10                  impairs, or threatens to interfere with or impair, a legal
           (Tex.App.-Austin 2010, no pet.) (mem. op.) (re-       right or privilege of the plaintiff”); see also Texas Ortho-
           jecting carrier's challenge to workers' compensa-     paedic Ass'n v. Texas State Bd. of Podiatric Med. Exam'rs,
           tion division order requiring reimbursement of        254 S.W.3d 714, 718 n. 1 (Tex.App.-Austin 2008, pet.
           chiropractor for needle-EMG procedure; holding        denied) (recognizing physician's standing to challenge
           that division properly deferred to TBCE inter-        validity of podiatric board rule that included ankle within
           pretation of statutory scope of practice and that     the definition of “foot” and ultimately holding that rule
           underlying scope-of-practice dispute was not          exceeded board's rule-making authority).FN13




Appendix F to Brief of Appellant                                                                                   Page 9 of 32
                                                                           This former version of the rule was the subject of
           FN13. In fact, one of the Sunset recommendations                the interlocutory jurisdictional appeal we ad-
           preceding the 2005 amendments had criticized                    dressed in Texas Board of Chiropractic Examin-
           TBCE's “practice of issuing Board opinions” to                  ers v. Texas Medical Association, 270 S.W.3d
           define the scope of chiropractic and recom-                     777, 780–83 (Tex.App.-Austin 2008, no pet.).
           mended that the agency be required to promulgate                During the pendency of the litigation, TBCE
           administrative rules instead. See Sunset Advisory               amended the text of the rule to include an explicit
           Comm'n, Sunset Comm'n Decisions: Tex. Bd. of                    authorization for chiropractors to perform MUA,
           Chiropractic Exam'rs (May 2004) at 3; Sunset                    discussed above. See 34 Tex. Reg. 4331 (2009)
           Advisory Comm'n: Tex. Bd. of Chiropractic                       (codified at 22 Tex. Admin. Code § 75.17) (pro-
           Exam'rs, Staff Report, at 5 (Feb. 2004).                        posed Jan. 2, 2009).


      In response to this rule-making mandate, TBCE                        FN15. TMA also named TBCE's executive di-
 promulgated a “Scope of Practice” rule authorizing chiro-                 rector as a defendant, and he appears in his offi-
 practors to perform both needle EMG and MUA. See 22                       cial capacity as a party to this appeal. Because any
 Tex. Admin. Code § 75.17.FN14 Invoking section 2001.038                   distinction between the two parties is not material
 of the Administrative Procedures Act, TMA sued TBCE                       to this appeal, for convenience we will use
 FN15
       seeking declarations that various provisions of the                 “TBCE” hereinafter to refer both to the agency
 scope-of-practice rule that permitted needle EMG and                      itself and the agency and executive director col-
 MUA were invalid because they exceeded the statutory                      lectively.
 scope of chiropractic and, therefore, constituted the un-
 lawful practice of medicine.FN16 TMA also asserted similar                FN16. TMA also sought a declaration that TBCE
 claims concerning a provision of the rule permitting chi-                 had failed to provide an adequate “reasoned jus-
 ropractors to “diagnose” certain conditions. In the alterna-              tification” for the challenged rules, as required by
 tive, if any of the challenged rule provisions proved to be               the Administrative Procedure Act. These claims
 within TBCE's statutory authority, TMA sought declara-                    are not at issue on appeal.
 tions that the underlying statutes granted chiropractors a
 “preference” over physicians in practicing “medicine” in             On petition of TMA, the TMB was joined in the suit as
 violation of article XVI, section 31 of the Texas Constitu-      a plaintiff. After TBCE was unsuccessful in challenging
 tion. TMA further sought injunctive relief barring en-           TMA's standing, TCA intervened as a defendant and also
 forcement of the challenged rules or, alternatively, statutes.   asserted its own affirmative claims for declarations that
                                                                  each of the challenged rules were within the statutory
           FN14. When it initially promulgated the                scope of chiropractic. In the alternative, TCA sought a
           scope-of-practice rule in 2006, TBCE purported         declaration that a statutory definition of “surgical” added
           to leave MUA unaddressed pending further               by the Legislature in the 2005 Sunset legislation was un-
           rule-making while also emphasizing in the rule's       constitutional on grounds that included *473 improper
           preamble that MUA “ha[d] been part of the prac-        delegation of legislative authority to a private entity. See
           tice of chiropractic in Texas for more than 25         Texas Boll Weevil Eradication Found., Inc. v. Lewellen,
           years” and that the agency was leaving this “sta-      952 S.W.2d 454, 465–75 (Tex.1997).
           tus quo” undisturbed. See 31 Tex. Reg. 4613
           (2006) (proposed Dec. 16, 2005), amended in                 TMA, joined by TMB (hereafter, the “Physician Par-
           part by 34 Tex. Reg. 4331 (2009) (proposed Jan.        ties”), sought traditional partial summary judgment on
           2, 2009) (former 22 Tex. Admin. Code § 75.17).




Appendix F to Brief of Appellant                                                                                  Page 10 of 32
 their claims seeking to invalidate, as beyond the statutory           In light of TCA's non-suit, and concluding that the
 scope of chiropractic, TBCE's rules authorizing chiro-           Physician Parties' “constitutional challenges” had been
 practors to perform needle EMG and MUA. The district             rendered “moot” by its summary-judgment rulings, the
 court granted the motion as to these claims.                     district court rendered a final judgment incorporating its
                                                                  summary-judgment rulings and declaring the aforemen-
      In the same motion, the Physician Parties similarly         tioned rule provisions concerning needle EMG, MUA, and
 sought summary judgment invalidating TBCE's rule per-            “diagnoses” “invalid and void.” Both of the Chiropractor
 mitting chiropractors to make “diagnoses” as beyond the          Parties filed notices of appeal.
 statutory scope of chiropractic. TBCE and TCA (hereafter
 the “Chiropractor Parties”) countered with a cross-motion                                ANALYSIS
 for partial summary judgment dismissing the Physician                 In five issues on appeal, TCA challenges the district
 Parties' claims challenging whether TBCE's rules permit-         court's judgment invalidating TBCE rules regarding needle
 ting “diagnoses” were within the statutory scope of chiro-       EMG, MUA, and “diagnoses.” TBCE brings three issues
 practic.FN17 The district court denied the Physician Parties'    challenging only the portions of the judgment invalidating
 motion and granted the Chiropractor Parties' motion in part      the needle-EMG and MUA rules.
 “as to the Chiropractic Board's use of the word ‘diagnosis'
 in its rule.” “However,” the court emphasized, it “re-           Standard of review
 serve[d] judgment regarding ‘diagnosis' as it related to              The challenged portions of the district court's judg-
 scope of practice.” (Emphasis in original.) Following a          ment are predicated on its rulings granting or denying
 second round of summary-judgment filings, however, the           motions for partial summary judgment. We review the
 district court granted summary judgment for the Physician        district court's summary judgments de novo. Valence Op-
 Parties as to a narrower portion of the “diagnosis” rule than    erating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005);
 they had challenged previously.                                  Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
                                                                  211, 215 (Tex.2003). Summary judgment is proper when
           FN17. The district court's final judgment also         there are no disputed issues of material fact and the movant
           references cross-motions purportedly filed by the      is entitled to judgment as a matter *474 of law. Tex.R. Civ.
           Chiropractor Parties concerning the needle-EMG         P. 166a(c). When reviewing a summary judgment, we take
           and MUA issues. However, no such motions ap-           as true all evidence favorable to the non-movant, and we
           pear in the appellate record, nor does the docket      indulge every reasonable inference and resolve any doubts
           sheet reflect that any such motions were ever          in the non-movant's favor. Valence Operating Co., 164
           filed.                                                 S.W.3d at 661; Knott, 128 S.W.3d at 215. When parties file
                                                                  cross-motions for summary judgment on overlapping is-
      In the meantime, the Attorney General had intervened        sues and the trial court grants one motion and denies the
 on behalf of the State of Texas to defend against each side's    other, we review the summary-judgment evidence sup-
 alternative constitutional claims, see Tex. Civ. Prac. &         porting both motions and determine all questions presented
 Rem.Code Ann. § 37.006(b) (West 2008), and the Attor-            and preserved. See FM Props. Operating Co. v. City of
 ney General and various other parties had filed pleadings        Austin, 22 S.W.3d 868, 872 (Tex.2000). We “should ren-
 attacking those claims. After the district court indicated its   der the judgment that the trial court should have rendered.”
 intended disposition of the second round of partial sum-         Id.
 mary-judgment motions, but before it signed an order,
 TCA non-suited its affirmative claims for relief.                    In this case, the parties' respective entitlements to
                                                                  summary judgment turn principally on whether the rules in
                                                                  question were within TBCE's statutory authority to adopt.




Appendix F to Brief of Appellant                                                                                  Page 11 of 32
 To resolve such questions, we consider whether each rule:        “title,” id. § 311.023(1)-(5), (7) (West 2005). However,
 (1) contravened specific statutory language; (2) ran counter     only when the statutory text is ambiguous—i.e., suscepti-
 to the general objectives of the underlying statute, chapter     ble to more than one reasonable interpretation—“do we
 201 of the occupations code; or (3) imposed additional           ‘resort to rules of construction or extrinsic aids.’ ” See
 burdens, conditions, or restrictions in excess of or incon-      Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re
 sistent with the relevant statutory provisions. See City of      Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007)).
 Garland v. Public Util. Comm'n, 165 S.W.3d 814, 819
 (Tex.App.-Austin 2005, pet. denied).                                  As the Chiropractor Parties emphasize, in certain
                                                                  circumstances courts may be required to defer to an ad-
       Statutory construction presents a question of law that     ministrative agency's construction of its own statutory
 we review de novo. State v. Shumake, 199 S.W.3d 279, 284         authority. See *475Railroad Comm'n v. Texas Citizens for
 (Tex.2006). Our primary objective in statutory construc-         a Safe Future & Clean Water, 336 S.W.3d 619, 624–25
 tion is to give effect to the Legislature's intent. See id. We   (Tex.2011). But these principles apply only where the
 seek that intent “first and foremost” in the statutory text.     statute in question is ambiguous and only to the extent that
 Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85               the agency's interpretation is one of those reasonable in-
 (Tex.2006). “Where text is clear, text is determinative of       terpretations. See id. “Consequently, to determine whether
 that intent.” Entergy Gulf States, Inc. v. Summers, 282          this rule of deference applies, a reviewing court must first
 S.W.3d 433, 437 (Tex.2009) (op. on reh'g) (citing Shu-           make a threshold determination that the statute is ambig-
 make, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs. v.         uous and the agency's construction is reasona-
 Johnson, 209 S.W.3d 644, 651–52 (Tex.2006)). We use              ble—questions that turn on statutory construction and are
 definitions prescribed by the Legislature and any technical      reviewed de novo.” City of Waco v. Texas Comm'n on
 or particular meaning the words have acquired; otherwise         Envtl. Quality, 346 S.W.3d 781, 800 (Tex.App.-Austin
 we construe the words according to their plain and com-          2011, pet. filed) (citing Texas Citizens, 336 S.W.3d at
 mon meaning unless a contrary intent is apparent from the        625). Additionally, this Court has recognized that these
 context. City of Rockwall v. Hughes, 246 S.W.3d 621,             principles of deference may be subject to further qualifi-
 625–26 (Tex.2008). We also presume that the Legislature          cations where the subject matter is not within any spe-
 was aware of the background law and acted with reference         cialized expertise of the agency, see id. (citing Texas Cit-
 to it. See Acker v. Texas Water Comm'n, 790 S.W.2d 299,          izens, 336 S.W.3d at 630), and where “a nontechnical
 301 (Tex.1990). We further presume that the Legislature          question of law” is involved, see Rogers v. Texas Bd. of
 selected statutory words, phrases, and expressions delib-        Architectural Exam'rs, –––S.W.3d ––––, ––––, 2011 WL
 erately and purposefully. See Texas Lottery Comm'n v.            3371543 (Tex.App.-Austin 2011, no pet. h.) (citing
 First State Bank of DeQueen, 325 S.W.3d 628, 635                 Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 302
 (Tex.2010); Shook v. Walden, 304 S.W.3d 910, 917                 (Tex.App.-Austin 2001, no pet.)).
 (Tex.App.-Austin 2010, no pet.). Our analysis of the stat-
 utory text may also be informed by the presumptions that              To the extent our analysis turns on administrative
 “the entire statute is intended to be effective” and that “a     construction of the rules themselves, we defer to an
 just and reasonable result is intended,” see Tex. Gov't Code     agency's interpretation of its own rules unless that inter-
 Ann. § 311.021(2), (3) (West 2005), and consideration of         pretation is plainly erroneous or inconsistent with the text
 such matters as “the object sought to be attained,” “cir-        of the rule or underlying statute. See Public Util. Comm'n
 cumstances under which the statute was enacted,” legisla-        v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex.1991);
 tive history, “common law or former statutory provisions,        Tennessee Gas Pipeline Co. v. Rylander, 80 S.W.3d 200,
 including laws on the same or similar subjects,” “conse-         203 (Tex.App.-Austin 2002, pet. denied). We construe
 quences of a particular construction,” and the enactment's       administrative rules in the same manner as statutes because




Appendix F to Brief of Appellant                                                                                  Page 12 of 32
 they have the force and effect of statutes. Rodriguez v.         under standards set *476 forth by the [TBCE] but may
 Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999).         not be used for procedures that are incisive or surgical.


 Needle EMG                                                       (A) The use of a needle for a procedure is incisive if the
      TCA's second issue and TBCE's first two issues              procedure results in the removal of tissue other than for
 challenge the district court's summary judgment invali-          the purpose of drawing blood.
 dating rules relating to needle EMG.
                                                                  (B) The use of a needle for a procedure is surgical if the
      As previously noted, the statutory scope of chiroprac-      procedure is listed in the surgical section of the CPT
 tic practice includes “using objective or subjective means       Codebook.
 to analyze, examine, or evaluate the biomechanical condi-
 tion of the spine and musculoskeletal system of the human           Id. § 75.17(a)(3). The “CPT Codebook” is defined
 body,” see Tex. Occ.Code Ann. § 201.002(b)(1); see also        elsewhere in the rule as “the American Medical Associa-
 22 Tex. Admin. Code § 75.17(a)(1)(A) (tracking the same        tion's annual Current Procedural Terminology Codebook
 language in TBCE's scope-of-practice rule), but excludes       (2004) .... adopted by the Centers for Medicare and Med-
 any “incisive or surgical procedure,” see Tex. Occ.Code        icaid Services of the United States Department of Health
 Ann. § 201.002(c)(1); see also 22 Tex. Admin. Code §           and Human Services as Level I of the common procedure
 75.17(a)(2)(A), (c)(4), (d)(2), (e)(3) (tracking same exclu-   coding system.” See id. § 75.17(b)(2).
 sion in scope-of-practice rule), a term that:
                                                                     Applying this standard, TBCE concluded that needle
   includes making an incision into any tissue, cavity, or      EMG was neither an “incisive” nor “surgical” procedure
   organ by any person or implement....                         and, thus, was not excluded from the scope of chiropractic
                                                                practice. Premised on that conclusion, TBCE promulgated
   [but] does not include the use of a needle for the purpose   two additional rule provisions addressing needle EMG
   of drawing blood for diagnostic testing.                     specifically. The first, paragraph (c)(2)(D), listed “elec-
                                                                tro-diagnostic testing” among several examples of testing
      Tex. Occ.Code Ann. § 201.002(a)(3) (formatting al-        and measurement procedures that chiropractic licensees
 tered for emphasis).                                           were permitted to use in evaluating or examining patients.
                                                                See id. § 75.17(c)(2)(D). In the second provision, para-
                                                                graph (c)(3)(A), TBCE imposed certification and supervi-
      In its scope-of-practice rule, TBCE construed and de-
                                                                sion requirements on any licensees who administered
 fined the term “incision”—i.e., that which characterizes an
                                                                “electro-neuro diagnostic testing” that varied according to
 “incisive procedure”—as “[a] cut or a surgical wound;
                                                                whether the testing was “surface (non-needle)” or involved
 also, a division of the soft parts made with a knife or hot
                                                                the use of needles. See id. § 75.17(c)(3)(A). The import or
 laser.” 22 Tex. Admin. Code § 75.17(b)(3). TBCE further
                                                                effect of paragraphs (c)(2)(D) and (c)(3)(A), as the parties
 determined that the insertion of a needle into the human
                                                                agree, was that chiropractors with specified training and
 body might or might not “cut” the body or be “incisive” in
                                                                certification could utilize needle EMG in evaluating or
 the sense of the exclusion, or be “surgical,” and promul-
                                                                examining patients.
 gated a standard, found in subparagraph (a)(3) of the rule,
 for distinguishing “incisive” or “surgical” needle inser-
 tions from non-incisive and non-surgical ones:                      In their live petition and summary-judgment motions,
                                                                the Physician Parties challenged the validity of the two rule
                                                                provisions         specifically     addressing         needle
   (3) Needles may be used in the practice of chiropractic




Appendix F to Brief of Appellant                                                                                Page 13 of 32
 EMG—75.17(c)(2)(D) and (c)(3)(A)—plus the general               “surgical” procedures from the practice of chiropractic,
 standard regarding use of needles—75.17(a)(3)—based on          changed the definition of acupuncture to refer to “the
 the assertions that each rule permitted chiropractors to        nonsurgical, nonincisive insertion of an acupuncture nee-
 perform needle EMG, and needle EMG was an “incisive”            dle ... to specific areas of the human body.” See Act of May
 procedure excluded from the statutory scope of chiroprac-       28, 1997, § 1, 1997 Tex. Gen. Laws at 4418 (codified at
 tic. The district court granted the motions and rendered        Tex. Occ.Code Ann. § 205.001(2)(A)); Tex. Att'y Gen.
 judgment declaring that “22 Tex. Admin. Code §§                 Op. No. DM–471 (1998) (observing that 1997 amendment
 75.17(a)(3), 75.17(c)(2)(D) and 75.17(c)(3)(A), concern-        responded to prior opinion concluding that acupuncture
 ing needle electromyography, are ... invalid and void.” The     was an “incisive” procedure outside the scope of chiro-
 Physician Parties did not challenge, and the district court     practic). By expressly contemplating, in a related statute,
 did not invalidate, TBCE's definition of “incision” as a        that the insertion of a needle into the human body may be
 “cut,” “surgical wound,” or “division of the soft parts.” See   “nonincisive” (not to mention “nonsurgical”), the Legis-
 id. § 75.17(b)(3).                                              lature, in the Chiropractor Parties' view, confirmed that
                                                                 needle insertions may either be “incisive” or “nonincisive”
      In holding that the three rules improperly permitted       within the meaning of the statutory exclusion from chiro-
 chiropractors to perform an “incisive” procedure, the dis-      practic. And it follows, they add, that the mere fact a needle
 trict court, the Chiropractor Parties assert, misconstrued      insertion creates some degree of hole or separation of
 unambiguous statutory language or at least erred in failing     tissue along the length of the inserted instrument, as all
 to give required deference to TBCE's reasonable con-            needle insertions will, cannot in itself be the criterion that
 struction of ambiguous language. They concede that the          distinguishes an “incisive” needle insertion from a “non-
 last    sentence     of    occupations     code     section     incisive” one within the Legislature's contemplation.
 201.002(a)(3)—“[an incisive or surgical procedure] does
 not include the use of a needle for the purpose of drawing           The Chiropractor Parties add that TBCE's standard for
 blood for diagnostic testing”—negatively implies that the       distinguishing “incisive” from “nonincisive” needle use,
 use of a needle to draw blood for diagnostic testing would      which focuses on whether the procedure results in the
 otherwise have been considered an “incisive” procedure in       removal of tissue, see 22 Tex. Admin. Code § 75.17(a)(3),
 the view of the Legislature, as otherwise the exception         is consistent with this statutory framework. They reason
 created in that sentence would have amounted to a redun-        that (1) if using needles for blood draws for diagnostic use
 dant nullity. See DeQueen, 325 S.W.3d at 638 (“Courts ‘do       is an “incisive” procedure (again, the negative implication
 not lightly presume that the Legislature may have done a        of the Legislature's exception of blood draws from “inci-
 useless act.’ ” (quoting *477Liberty Mut. Ins. Co. v. Gar-      sive or surgical” procedures, see Tex. Occ.Code Ann. §
 rison Contractors, Inc., 966 S.W.2d 482, 485 (Tex.1998));       201.002(a)(3)), (2) but needle insertion in itself cannot be
 Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex.2005) (“We           what makes the procedure “incisive” (as implied by the
 must avoid, when possible, treating statutory language as       statutory definition of acupuncture as entailing “noninci-
 surplusage.”). But the fact that this procedure involving       sive” needle insertion into the body, see Tex. Occ.Code
 use of a needle would be considered “incisive,” the Chi-        Ann. § 205.001(2)(A)), (3) then the “incisive” character of
 ropractor Parties insist, does not imply that every proce-      a needle blood draw must relate to the fact that it results in
 dure involving the insertion of a needle into the human         the separation and removal of the blood itself or, more
 body necessarily is. They urge that any such construction       generally, tissue, as blood is considered to be a form of
 or inference ignores the Legislature's 1997 amendments to       connective tissue. That distinguishing feature, the Chiro-
 the statutory definition of acupuncture. In those amend-        practor Parties assert, is properly reflected in TBCE's
 ments, as previously explained, the Legislature, with evi-      standard for determining “incisive” needle use. In striking
 dent reference to its prior exclusion of “incisive” and         down that standard, they argue, the district court over-




Appendix F to Brief of Appellant                                                                                  Page 14 of 32
 looked the unambiguous text of the relevant statutes, or at      Parties remind us that statutory construction turns not on
 least failed to give required deference to TBCE's reasona-       the statements of individual legislators but on the text of
 ble construction of ambiguous text. And the same error,          the statutes the Legislature collectively enacts. See Ojo v.
 they add, led the district court to improperly strike down       Farmers Grp., Inc., 356 S.W.3d 421, 435 (Tex.2011)
 the two rules permitting needle EMG, as it is undisputed         (noting that courts should apply “text-centric model” when
 that the procedure does not entail the removal of tissue.        construing statutes, using extrinsic aids such as legislative
                                                                  history only when text is not clear). And that statutory text,
      The Physician Parties' core contention in response, as      they urge, stops well short of evidencing intent to outlaw
 it was in their summary-judgment motions, is that occu-          needle EMG by chiropractors, especially considering that
 pations code section 201.002(a)(3)'s express exception for       the procedure has been performed by Texas chiropractors
 needle blood draws for diagnostic purposes from the “in-         since the early 1990s and been a frequent concern of the
 cisive or surgical” procedures excluded from chiropractic        medical community for much of that time. If the Legisla-
 reflects the Legislature's intent that all other procedures      ture had truly meant to prohibit chiropractors from per-
 involving needle usage, including *478 needle EMG, be            forming needle EMG, they suggest, it presumably would
 excluded from the scope of chiropractic practice. Such a         have said so more clearly and directly instead of con-
 construction, they reason, is necessary both to give effect      demning “incisive” procedures and delegating power to
 to the exclusion, see Liberty Mut. Ins. Co. v. American          TBCE to promulgate scope-of-practice rules.
 Emp'rs Ins. Co., 556 S.W.2d 242, 245 (Tex.1977) (in
 context of construing a contract, observing “the purpose of           As for the implications of the acupuncture statute's
 an exclusion is to take something out ... that would other-      reference to “nonsurgical, nonincisive” needle insertions,
 wise have been included in it”), and by the canon of stat-       the Physician Parties first suggest that this language is
 utory construction known as expressio unius est exclusio         simply irrelevant because chiropractors acting within the
 alterius—literally “the specific mention of one is the ex-       scope of their license are exempted from the acupuncture
 clusion of the other”—under which we would presume that          statutes. FN18 They similarly question the premise of the
 the Legislature's explicit mention or inclusion of one thing     Chiropractor Parties (and the Attorney General) FN19 that
 signals its intention to exclude the other or the alternative    the definition of acupuncture as “nonsurgical” and “non-
 thing. See Johnson v. Second Injury Fund, 688 S.W.2d             incisive” under the statutes regulating its practice neces-
 107, 108–09 (Tex.1985) (citing Bryan v. Sundberg, 5 Tex.         sarily resolves whether or not it is “incisive” under the
 418, 422–23 (Tex.1849)). They similarly rely on the more         meaning of the chiropractic statutes. However, the Physi-
 general principle that courts must assume that the Legis-        cian Parties have also relied on the narrower point (so to
 lature chose its words carefully and deliberately, and in-       speak) that the types of needles used in needle EMG have
 cluded or excluded particular words purposefully. See,           physical*479 features that materially distinguish them
 e.g., DeQueen, 325 S.W.3d at 635; USA Waste Servs. of            from those used in acupuncture.
 Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494
 (Tex.App.-Austin 2004, pet. denied).                                      FN18. See Tex. Occ.Code Ann. § 205.003 (West
                                                                           2004) (government code chapter 205, the chapter
      In further support, the Physician Parties emphasize the              regulating acupuncture, “does not apply to a
 legislative history of the 1995 amendments that added the                 health care professional licensed under another
 exclusion and description of “incisive or surgical proce-                 statute and acting within the scope of the li-
 dures.” In their view, this history confirms the Legislature's            cense”).
 intent to forbid chiropractors from performing needle
 EMG and any other procedure entailing the insertion of                    FN19. See Tex. Att'y Gen. Op. No. DM–471
 needles into the human body. In reply, the Chiropractor                   (1998); Tex. Att'y Gen. Op. No. DM–472 (1998).




Appendix F to Brief of Appellant                                                                                   Page 15 of 32
                                                                           Ltd. v. Moreno, 201 S.W.3d 686, 689 (Tex.2006)
      In support of their summary-judgment motion, TMA                     (holding that bare legal conclusion is not com-
 presented the affidavit of Dr. Sara G. Austin, a physician,               petent summary-judgment evidence); see also
 who compared the characteristics of acupuncture needles                   City of San Antonio v. Pollock, 284 S.W.3d 809,
 versus those used in needle EMG. Attached to her affidavit                816 (Tex.2009) (observing that unsupported legal
 were photographs comparing what she averred were “a                       conclusions are not competent evidence and may
 standard needle used in performing acupuncture” along-                    not support a judgment even in the absence of an
 side “two of the types of needles I use in performing                     objection).
 EMG.” The photographs reflected that the two nee-
 dle-EMG needles were longer and somewhat thicker than                 The Physician Parties portray this summary-judgment
 the acupuncture needle, with one of the needle-EMG nee-          evidence as establishing conclusively that needle-EMG
 dles appearing to extend four or five times the length of the    needles characteristically have a beveled or cutting edge.
 acupuncture needle.FN20 Austin further testified that the        Consequently, they reason, the insertion of such a needle
 tips of the types of needles used in needle EMG “typically       into the human body effects a “cut” or “incision” and, thus,
 are beveled”—i.e., have an angled side or end, character-        is an “incisive procedure” within the meaning of the stat-
 istic of a blade or cutting edge FN21—and, consequently,         utory exclusion. In reply, the Chiropractor Parties empha-
 “incise tissue” (in the sense of cutting it like a blade) when   size Dr. Austin's deposition testimony, which they pre-
 they are inserted during the EMG examination.FN22 She did        sented with their summary-judgment response. During her
 not, however, speak directly to the types of tips found on       deposition, Austin acknowledged that while she used
 acupuncture needles.                                             needle-EMG needles that have a beveled, blade-like edge,
                                                                  some other practitioners performing the procedure instead
           FN20. The photographic depictions show the             used needles having a tapered or blunt edge.
           acupuncture      needle      as    approximately
           three-quarters to one inch long, one of the nee-             [1] Our analysis of the parties' competing contentions
           dle-EMG needles appears to be roughly                  begins, in the first instance, with a threshold question of
           one-and-a-half inches long, and the remaining          whether the Legislature intended the term “incisive” pro-
           needle-EMG needle is approximately four or five        cedure as used in the statutory exclusion to be afforded its
           inches long. However, Austin indicated that while      ordinary meaning or a somewhat narrower technical
           the photographs accurately depicted the needles'       meaning. See City of Rockwall, 246 S.W.3d at 625–26.
           comparative sizes, shapes, and configurations, the     Especially in the context of health care, “incisive” is used
           “photocopying process” had created some dif-           to refer to the act of cutting, usually tissue. See Stedman's
           ferences from their actual sizes.                      Medical Dictionary 700 (5th Unabridged Lawyers' ed.
                                                                  1982) (defining “incisive” as “cutting; having the power to
           FN21. Austin also referenced an attached magni-        cut”); Dorland's Illustrated Medical Dictionary 940 (31st
           fied image of a needle tip showing such an edge.       ed. 2007) (defining “incisive” as “having the power or
                                                                  quality of cutting,” and listing under its heading for “inci-
                                                                  sion” various types of *480 medical tissue incisions). By
           FN22. Austin did not purport to opine as to
                                                                  contrast, the ordinary meaning of “incisive” embraces not
           whether the needle would be “incisive” in the
                                                                  only the concept of cutting, but also “piercing” (“run[ning]
           sense that term is used in the statutory exclusion.
                                                                  into or through as a pointed instrument ... does, stab [bing]
           To the extent her testimony might be so con-
                                                                  ...[,] mak[ing] a hole in or through”) and “penetrating”
           strued, we note that the testimony would amount
                                                                  (“pass[ing] into or through”).FN23 A needle insertion into
           to an incompetent legal conclusion. See LMB,
                                                                  the human body would quite obviously satisfy the ordinary




Appendix F to Brief of Appellant                                                                                  Page 16 of 32
 meaning of “incisive,” as such a procedure would plainly          its own regulation, we cannot defer to an administrative
 “penetrate” tissue, if not also “pierce” it. But it is a closer   interpretation that is ‘plainly erroneous or inconsistent with
 question whether a needle insertion likewise “cuts” tissue        the regulation.’ ” (quoting Gulf State Utils. Co., 809
 and meets the narrower, technical definition.                     S.W.2d at 207)).


           FN23. See Webster's Third New Int'l Dictionary               Here the summary-judgment evidence becomes rele-
           1142 (defining “incisive” as “having a cutting          vant to our analysis. Although the summary-judgment
           edge or a piercing point”), 1670 (defining “pene-       evidence falls short of establishing conclusively that all
           trate”), 1712 (defining “pierce”) (2002); Ameri-        needle-EMG needles have a beveled, blade-like edge, Dr.
           can Heritage College Dictionary 687 (defining           Austin's testimony remains undisputed that at least some of
           “incisive” as penetrating), 1010 (defining “pene-       the types of needles used by practitioners in performing
           trate” as “to enter or force a way into; pierce”),      that procedure do have that feature. And the very purpose
           1035 (defining “pierce” as “to cut or pass through      of having such an edge on a needle, as Austin further ex-
           with or as if with a sharp instrument; stab or          plained, is to make the needle cut or slice through tissue,
           penetrate”) (2000).                                     like a blade or knife. This evidence conclusively estab-
                                                                   lishes that at least some types of needles used in needle
      In this case, our choice between the ordinary and            EMG “cut” into tissue under any conceivable definition of
 technical meaning of “incisive” has been narrowed                 that term. In its ordinary usage, “cut” with reference to
 somewhat by TBCE's rule provision, unchallenged by the            something being inserted into or applied to tissue means
 Physician Parties and undisturbed by the district court's         “to penetrate with or as if an edged instrument” or to sep-
 judgment, construing the related term “incision.” See Tex.        arate into parts with a sharp instrument. See Webster's
 Occ.Code Ann. § 201.002(c) (providing that “ ‘[i]ncisive          Third New Int'l Dictionary 560 (2002) (defining “cut” as
 or surgical procedure’ includes making an incision into any       “to penetrate with or as if with an edged instrument ....
 tissue, cavity, or organ by any person or implement ...)          *481 make an incision in .... to separate into parts”);
 (emphasis added). Consistent with the technical meaning           American Heritage College Dictionary 341 (2000) (de-
 of “incisive,” TBCE has defined “incision” to mean, in            fining “cut” as “to penetrate with a sharp edge; .... [t]o
 relevant part, “a cut or surgical wound.” See 22 Tex. Ad-         separate into parts with or as if with a sharp-edged in-
 min. Code § 75.17(b)(3). Consequently, whether the use of         strument; sever”); Random House Dictionary of the Eng-
 a needle is “incisive” so as to be excluded from chiro-           lish Language 494 (2d ed. 1987) (defining “cut” as “to
 practic turns on whether such use “cuts” or makes a “sur-         penetrate with or as if with a sharp-edged instrument or
 gical wound” “into any tissue, cavity, or organ.” And, in         object ... to divide with or as if with a sharp-edged in-
 light of this rule definition, our analytical focus must shift    strument or object”). We also observe that in the context of
 to determining whether the three invalidated rules permit-        health care, needles with beveled edges are said to “cut” or
 ting needle EMG are premised on a construction and ap-            have a “cutting edge,” as contrasted with differently edged
 plication of “cut” that is clearly erroneous or inconsistent      needles that do not “cut.” Compare Dorland's at 1255
 with the rule's text and underlying statutes. See                 (defining “cope needle” as “blunt-ended hook like needle
 TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,               with a concealed cutting edge and snare” and “Hagedorn's
 438 (Tex.2011) (“If there is vagueness, ambiguity, or room        needles” as “surgical needles that are flat from side to side
 for policy determinations in a statute or regulation, ... we      with a straight, cutting edge near the point”) with id. (de-
 normally defer to the agency's interpretation unless it is        fining “spatula needle” as “minute needle with a flat or
 plainly erroneous or inconsistent with the language of the        slightly curved concave surface that does not cut or
 statute, regulation, or rule.”); Rodriguez, 997 S.W.2d at         pierce”). Further, while the question of whether acupunc-
 254 (“While we defer to the Commission's interpretation of        ture is within the chiropractic scope of practice is not be-




Appendix F to Brief of Appellant                                                                                    Page 17 of 32
 fore us, nor does the summary-judgment evidence address          ropractors to perform needle EMG, and 75.17(a)(3) states
 whether or not acupuncture needles have a beveled edge,          that a procedure involving a needle is “incisive” only if it
 this distinction between beveled, “cutting” needles and          results in removal of tissue. In so doing, these rules exceed
 other kinds that do not “cut” would perhaps explain how,         the statutory limits of chiropractic by, at a minimum, au-
 in the Legislature's view, acupuncture needles would be          thorizing chiropractors to perform needle EMG with bev-
 capable of being inserted into the body in a “nonincisive”       eled-edged needles that are made to cut or incise tissue.
 and “nonsurgical” manner. See Tex. Occ.Code Ann. §               They were, accordingly, beyond TBCE's statutory author-
 205.001(2)(A).                                                   ity and void. See *482Gulf States Utils. Co., 809 S.W.2d at
                                                                  207. The district court did not err in granting summary
      In contending that needle EMG is not a “cutting” or         judgment to that effect. We overrule the Chiropractor
 “incisive” procedure, the Chiropractor Parties ultimately        Parties' issues concerning needle EMG.
 rely upon an asserted distinction predicated on the size of a
 needle's cutting edge as compared to that of scalpels,           MUA
 knives, or other larger cutting instruments. As they explain          [2] TCA's first and TBCE's third issue challenge the
 their position on appeal, “[a] ‘cut’ or ‘wound’ involves an      district court's summary judgment invalidating a provision
 appreciable separation of tissue in at least two directions,     of the scope-of-practice rule, subsection 75.17(e)(2)(O),
 as when a knife cuts into and along the body at the same         that included MUA among the treatment procedures or
 time,” (citing dictionary definition of “cut” as “an opening     services that chiropractors are expressly authorized to
 made with an edged instrument”), “[b]ut a needle entry           perform. See 22 Tex. Admin. Code § 75.17(e)(2)(O). As
 typically creates an appreciable separation of tissue in only    previously noted, chiropractors are generally authorized to
 one direction—along the length of the needle—because the         “perform[ ] nonsurgical, nonincisive procedures, including
 width of most needles is small.” Consequently, in their          adjustment and manipulation, to improve the subluxation
 view, “[t]he resulting hole is not obviously a ‘cut,’ ” cre-     complex or the biomechanics of the musculoskeletal sys-
 ating “a conceptually difficult question of interpretation:      tem.” See Tex. Occ.Code Ann. § 201.002(b)(2); see also
 when does a needle entry qualify as a ‘cut’ or ‘wound’ (and      22 Tex. Admin. Code § 75.17(a)(1)(B) (tracking the same
 hence become ‘incisive’),” answered in turn by TBCE's            language in TBCE's scope-of-practice rule). In their
 “rational” conclusion focused on tissue removal. But these       summary-judgment motions, the Physician Parties sought
 musings about needle points ultimately miss the                  to invalidate the rule's authorization of MUA on two basic
 point—regardless of the relative size of the instrument, or      grounds. First, they asserted that the authorization was
 whether its effects on tissue are “obvious,” it remains that     contrary to the prohibition in occupations code section
 the insertion of a needle EMG needle having a beveled            201.154 barring TBCE from “adopt[ing] a process to cer-
 edge would “cut” tissue, as it is designed to do, under any      tify chiropractors to perform manipulation under anesthe-
 definition of that term. It would, therefore, be an “incisive”   sia.” See Tex. Occ.Code Ann. § 201.154. Second, the
 use of a needle. Consequently, the Chiropractor Parties'         Physician Parties urged that MUA was a “surgical” pro-
 construction is contrary to the text of its own definition of    cedure excluded from the scope of chiropractic. See id. §
 “incision” as well as the underlying statutes. See Gulf State    201.002(b)(2), (c)(1). In this regard, they relied on the
 Utils. Co., 809 S.W.2d at 207; City of Garland, 165              definition or description of “surgical procedure” added by
 S.W.3d at 819.                                                   the Legislature in 2005: “ ‘[s]urgical procedure’ includes a
                                                                  procedure described in the surgery section of the common
     It follows that the three challenged rule provisions         procedure coding system as adopted by the Centers for
 purport to authorize chiropractors to perform “incisive”         Medicare and Medicaid Services of the United States
 procedures that are beyond chiropractic's statutory              Department of Health and Human Services.” Id. §
 scope—75.17(c)(2)(D) and 75.17(c)(3)(A) authorize chi-           201.002(a)(4). The district court did not specify in its




Appendix F to Brief of Appellant                                                                                  Page 18 of 32
 summary-judgment order and judgment the ground or               Department of Health and Human Services,” referenced in
 grounds on which it relied.FN24 The Chiropractor Parties        the statute, referred to “the American Medical Associa-
 challenge both grounds on appeal, which they perceive to        tion's annual Current Procedural Terminology Codebook
 be related to one another.                                      (2004),” which “has been adopted by the Centers for
                                                                 Medicare and Medicaid Services ... as Level 1 of the
           FN24. Although both sides reference explanatory       common procedure coding system.” See 22 Tex. Admin.
           letters from the district court that preceded its     Code § 75.17(b)(2) (defining “CPT Codebook”). Simply
           summary-judgment order and judgment, they             described, the CPT Codebook identifies several thousand
           acknowledge that the letters do not impact the        medical procedures and services and provides a five-digit
           standard or scope of our appellate review. See        code and brief description for each. The American Medical
           Cherokee Water Co. v. Gregg County Appraisal          Association began the development of the CPT coding
           Dist., 801 S.W.2d 872, 878 (Tex.1990) (holding        system in 1966 to—
           that trial court's letter to parties was not compe-
           tent evidence of the trial court's basis for judg-      encourage the use of standard terms and descriptors to
           ment); Summers v. Fort Crockett Hotel, Ltd., 902        document procedures in the medical record; help[ ]
           S.W.2d 20, 25 (Tex.App.-Houston [1st Dist.]             communicate accurate information on procedures and
           1995, writ denied) (refusing to consider trial          services to agencies concerned with insurance claims;
           court's letter to parties explaining reasons why        provide[ ] the basis for a computer oriented system to
           judge would grant summary judgment).                    evaluate operative procedures; and contribute [ ] basic
                                                                   information for actuarial and statistical purposes.
      Regarding section 201.154's ban on TBCE
 “adopt[ing] a process to certify chiropractors to perform            American Medical Association, CPT Coding Billing
 [MUA],” the Chiropractor Parties insist that a ban on           & Insurance, CPT Application Process FAQ, http:// www.
 “certifying” chiropractors to perform MUA means only            ama- assn. org/ ama/ pub/ physician- resources/ solutions-
 that TBCE cannot create some sort of advanced training or       managing- your- practice/ coding- billing- insurance/ cpt/
 “certification” process beyond licensing minimums as a          cpt- process- faq/ code- becomes- cpt. page (last visited
 prerequisite to being allowed to perform MUA, but does          Mar. 13, 2012). Currently, the CPT is used “to report
 not prohibit chiropractors from performing the procedure        medical procedures and services under public and private
 itself. They add that such a ban further implies that MUA       health insurance programs ... [and] is also used for ad-
 itself could not be banned anywhere in chapter 201, as          ministrative management purposes such as claims pro-
 otherwise section 201.154's “certification” ban would be        cessing and developing guidelines for medical care re-
 redundant surplusage. See Columbia Med. Ctr. of Las             view.” Id. The AMA updates the CPT each year, effective
 Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008)          January 1, to reflect new developments in medical proce-
 (citing general rule that courts should avoid statutory con-    dures and services. See id.; Practice Mgmt. Info. Corp. v.
 structions that create surplusage or fail to give effect to     American Med. Ass'n, 121 F.3d 516, 517 (9th Cir.1997).
 provisions).                                                    The summary-judgment record contains excerpts from
                                                                 what appears to be a CPT Codebook for 2007,FN25 one of
     As for the implications of occupations code                 the versions in effect during the course of this litigation.
 201.002(a)(4)'s definition or description of “surgical pro-
 cedure” (i.e., the language added in 2005), TBCE in its                  FN25. See American Medical Association, Cur-
 scope-of-practice rule elaborated that “the common*483                   rent Procedural Terminology (CPT®) 2007 (4th
 procedure coding system as adopted by the Centers for                    ed. 2006).
 Medicare and Medicaid Services of the United States




Appendix F to Brief of Appellant                                                                                 Page 19 of 32
                                                                     In contrast to TBCE, TCA vigorously disputes that
      The five-digit codes in the CPT are divided into three    MUA is “described in the surgery section” of the CPT
 categories: Category I covers medical services and pro-        Codebook in any sense relevant to chiropractors. While not
 cedures; Category II includes codes related to performance     disputing that the “surgery” section of the book has con-
 measurement; and Category III lists the temporary codes        tained a description of MUA at all times relevant to our
 for new and emerging technology. Category I is further         inquiry here,FN26 TCA insists that the reference “does not
 divided into six sections—“evaluation,” “anesthesia,”          encompass chiropractic procedures.” It emphasizes a
 “radiology,” “pathology,” “medicine,” and, of relevance        cross-reference that appears in the 2007 CPT Codebook's
 here, “surgery.” See American Medical Association Cur-         description of MUA:
 rent Procedural Terminology (CPT®) 2007 xiv (4th ed.
 2006). Within each section, procedures are arranged to                 FN26. In fact, the 1970 edition of the CPT
 enable the user to locate the code number readily. In the              Codebook lists “22505 MANIPULATION
 “surgical” section, the procedures are grouped according to            SPINE ANY REGION, REQUIRING ANES-
 the body system on which surgery is performed.                         THESIA” in the surgery section using the same
                                                                        five-digit code used in the most current version of
      On appeal, TBCE concedes that “MUA is listed in the               the CPT. See American Medical Association,
 surgery section of the CPT Codebook and [is] thus a sur-               Current Procedural Terminology 135 (2d ed.
 gical procedure under the Chiropractic Act.” See also 31               1970); American Medical Association, Current
 Tex. Reg. 4615 (2006) (Texas Bd. of Chiropractic Ex-                   Procedural Terminology CPT® 2012 75 (4th ed.
 am'rs) (stating the same thing). Nonetheless, TBCE insists             2011) (“22505 Manipulation of spine requiring
 that we must “harmonize” occupations code 201.002(a)(4),               anesthesia, any region”).
 which would otherwise serve to exclude MUA from the
 scope of chiropractic, see Tex. Occ.Code Ann. §                  Manipulation
 201.002(c)(1), with the general statutory authorization of
 chiropractors to perform “adjustment and manipulation,”            (For spinal manipulation without anesthesia, use
 see id. § 201.002(b)(2), and what it perceives to be *484 an     97140)
 implicit authorization or recognition in occupations code
 201.154 that chiropractors can perform MUA because, as
                                                                  22505 Manipulation of spine requiring anesthesia, any
 previously explained, TBCE maintains that the section's
                                                                  region
 ban on “certification” of chiropractors to perform MUA
 would otherwise be redundant surplusage. Relatedly,
                                                                  American Medical Association, 2007 Current Proce-
 TBCE also invokes the principle that when statutory pro-
                                                                  dural Terminology (CPT®) 2007 85 (4th ed. 2006).
 visions irreconcilably conflict, the “more specific” provi-
                                                                  TCA represents that the referenced code “97140” does
 sion—what they view as the implicit authorization of
                                                                  not apply to chiropractors because there are different
 MUA present in section 201.154—should control over the
                                                                  codes—98940 through 98943—that cover “chiropractic
 “general” statutory exclusion of surgical procedures from
                                                                  manipulative treatment.” And because manipulation by
 chiropractic. See Tex. Gov't Code Ann. § 311.026(b) (West
                                                                  chiropractors is not covered by the cross-referenced
 2005) (providing that specific provision prevails over
                                                                  code 91740, it reasons, the “manipulation of spine re-
 general); MBM Fin. Corp. v. Woodlands Operating Co.,
                                                                  quiring anesthesia” code from which the reference is
 L.P., 292 S.W.3d 660, 670 n. 56 (Tex.2009) (citing to
                                                                  made must likewise not apply to chiropractors. See id. at
 government code section 311.026(b) for same proposi-
                                                                  xiv, 85 (describing the “Surgery” section of the CPT
 tion).
                                                                  codebook as including code numbers 10021 through




Appendix F to Brief of Appellant                                                                               Page 20 of 32
   69990). The portions of the CPT Codebook concerning           possibly have intended. See Molinet v. Kimbrell, 356
   chiropractic manipulation do not appear in our record.        S.W.3d 407, 411 (Tex.2011) ( “The plain meaning of the
   Regardless, assuming that TCA's description of those          text is the best expression of legislative intent unless a
   codes is accurate, and even assuming it is correct in         different meaning is apparent from the context or the plain
   concluding that code 22505 (“manipulation of the spine        meaning leads to absurd or nonsensical results.” (citing
   requiring anesthesia,” i.e., MUA) would not actually be       City of Rockwall, 246 S.W.3d at 625–26)). It is also un-
   the code applied by a chiropractor who was billing for        supported by the text of section 201.154 itself.
   the treatment, it remains undisputed that this code and
   accompanying description have appeared in the CPT                  The Chiropractor Parties' construction of section
   Codebook's “surgery” section at all relevant times. This      201.154 assumes that the word “certify” expresses an
   is all that the Legislature has required in order for MUA     intent to grant some special or additional type of authority
   to be deemed a “surgical” procedure excluded from the         to perform MUA beyond that conveyed through licensing.
   scope of chiropractic: “ ‘[s]urgical procedure’ includes a    But “certify” simply means “to designate as having met the
   procedure described in the surgery section of the [CPT        requirements for pursuing a certain kind of study or work.”
   Codebook].” See Tex. Occ.Code Ann. § 201.002(a)(4);           See Webster's 367 (defining “certify” and comparing to
   22 Tex. Admin. Code § 75.17(b)(2). The Legislature did        “license”); see also Black's Law Dictionary 258 (9th ed.
   not condition this requirement on the identity or type of     2009) (describing “certify” as “attest as being true or as
   health-care provider who performs the procedure. And          meeting certain criteria”). It does not necessarily require
   in the face of this unambiguous statutory language, it is     some underlying, preexisting authority that would be en-
   simply irrelevant whether, as TCA insists, a chiropractor     hanced, as it were, by the certification. In fact, the plain
   *485 would actually bill under code 22505. To the con-        language of section 201.154—i.e., “the board may not
   trary, such a fact would, if anything, further confirm that   adopt a process to certify chiropractors to perform
   the Legislature intended procedures “described” in the        [MUA]”—suggests that without certification, chiroprac-
   Codebook's “surgical” section be off-limits to chiro-         tors lack the authority to perform MUA. See Tex.
   practors.                                                     Occ.Code Ann. § 201.154 (emphasis added).

       Nor should we construe section 201.002(a)(4) any               If the Legislature had intended “certify” to have the
 differently to “harmonize” or avoid “conflict” with section     meaning that the Chiropractor Parties suggest here—i.e.,
 201.154, the provision barring TBCE from “adopt[ing] a          that “certification” contemplates some special designation
 process to certify chiropractors to perform [MUA].” As an       and presumes a status quo in which chiropractors can
 initial observation, the gravamen of the Chiropractor Par-      perform the procedure—a clearer statement of that intent
 ties' position concerning section 201.154 is that the Leg-      would have been a prohibition against TBCE adopting a
 islature, despite its specific prohibition barring chiroprac-   process to certify chiropractors, for example, “as an MUA
 tors from performing procedures listed under the CPT            specialist” or “in the field of MUA.” See, e.g., Tex.
 surgery codes, intended to impliedly allow chiropractors to     Occ.Code Ann. § 205.303(a) (West 2004) (“The medical
 perform one of the listed procedures. Their position further    board may certify a person as an acudetox specialist....”)
 suggests that the Legislature intended (without explicitly      (emphasis added); id. § 1701.404(b) (West Supp. 2011)
 saying so) that chiropractors be allowed to perform MUA,        (“The commission may certify a sheriff, sheriff's deputy,
 yet went out of its way to bar TBCE from requiring any          constable, other peace officer, county jailer, or justice of
 additional training or qualifications beyond licensing          the peace as a special officer for offenders with mental
 minimums to ensure that chiropractors perform that pro-         impairments....”) (emphasis added). But the plain language
 cedure safely. Such a construction yields what approaches       of section 201.154 does not do this. Rather, it merely for-
 “absurd results” that we presume the Legislature could not      bids TBCE from designating chiropractors as having met




Appendix F to Brief of Appellant                                                                                 Page 21 of 32
 the requirements to perform MUA. Therefore, it does not        emphasize the anecdotal legislative history of section
 necessarily follow that chiropractors already have the         201.154, the statutory text is dispositive here. See
 authority to perform MUA.                                      DeQueen, 325 S.W.3d at 635 (noting that courts should
                                                                look first to the plain meaning of statutory text as ex-
      For similar reasons, we also reject the TBCE's related    pressing legislative intent); Alex Sheshunoff, 209 S.W.3d at
 contention that the “more specific” language of section        652 n. 4 (noting that reliance on secondary materials such
 201.154 *486 should control over the statute's general ban     as legislative history should be avoided when text is un-
 on surgical procedures. But even if we were to apply this      ambiguous). We must, however, consider one final argu-
 canon of construction, section 201.154 cannot be said to be    ment asserted by TCA.
 “more specific” than the ban on surgical procedures with
 regard to whether chiropractors may perform MUA. At                 [3] TCA urges that if we construe section
 best, section 201.154 implies that chiropractors may per-      201.002(a)(4) to deem MUA performed by chiropractors a
 form MUA, but section 201.002(a)(4) specifically pro-          “surgical procedure,” we must invalidate the provision as
 vides that chiropractors may not perform MUA. Thus,            an improper delegation of legislative authority that violates
 201.002(a)(4) is the specific provision that should control.   the separation-of-powers clause of the Texas Constitu-
                                                                tion.FN27 See Tex. Const. art. III, § 1 (vesting the legislative
      Although our construction here could appear, at first     power in the Senate and House of Representatives).FN28
 glance, to render section 201.154 superfluous given the        Specifically, the Chiropractor Parties assert that by effec-
 Act's ban on MUA as a surgical procedure, it also can be       tively incorporating a coding system developed by the
 viewed as reinforcing the Legislature's intent that chiro-     AMA—a private association (not to mention a longtime
 practors not perform MUA. See Nash, 220 S.W.3d at              professional rival to chiropractors and chiropractic)—to
 917–18 (noting that “there are times when redundancies         supply a definition or description of “surgical procedure,”
 are precisely what the Legislature intended”); In re City of   the Legislature has delegated its *487 authority to the
 Georgetown, 53 S.W.3d 328, 335–36 (Tex.2001) (con-             AMA in a manner that fails the eight-factor balancing test
 struing duplicative provisions of the Open Records Act and     articulated by the supreme court in Texas Boll Weevil
 concluding that “the Legislature repeated itself out of an     Eradication Foundation, Inc., 952 S.W.2d at 472, for
 abundance of caution, for emphasis or both”). In any event,    delegations of authority to private entities.FN29 Although
 occupations code section 201.002(a)(4) means what it           we agree that a delegation of unbridled discretion to the
 says, and we cannot ignore this clear expression of legis-     AMA to define “surgical procedures” would potentially
 lative intent in the cause of avoiding any redundancy with     raise constitutional concerns, see id. at 471–75, we disa-
 section 201.154. See City of San Antonio v. City of Boerne,    gree that the Legislature has delegated its authority in this
 111 S.W.3d 22, 29 (Tex.2003) (“ ‘It is an elementary rule      situation.
 of construction that, when possible to do so, effect must be
 given to every sentence, clause, and word of a statute so               FN27. As was the case with TCA's assertion that
 that no part thereof be rendered superfluous.’ ”) (quoting              MUA performed by chiropractors is not described
 Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597, 601                     in the surgical section of the CPT Codebook,
 (1915)).                                                                TBCE does not join in this argument.


      Based on the unambiguous text of occupations code                  FN28. Both the Physician Parties and the State of
 section 201.002(a)(4), we conclude that MUA is a “sur-                  Texas assert that TCA waived this argument by
 gical procedure” excluded from the statutory scope of                   non-suiting its affirmative claims for relief. To
 chiropractic and that occupations code section 201.154 is               the contrary, TCA also raised this contention de-
 not to the contrary. Although the Physician Parties also                fensively, as a ground for denying the Physician




Appendix F to Brief of Appellant                                                                                   Page 22 of 32
           Parties' summary-judgment motion, thereby pre-         S.W.2d 737, 741 (Tex.App.-Austin 1998, pet. ref'd). This
           serving it for appeal. See Tex.R. Civ. P. 166a(c).     sort of cross-reference to fixed external fact, source, or
           Furthermore, in its notice of non-suit, TCA ex-        standard is no more a delegation of legislative authority
           plicitly disclaimed any intent to waive its right to   than a statutory reference to a measure of time or volume.
           assert any defensive arguments.
                                                                       Although no party has emphasized it, we observe that
           FN29. Although the text of section 201.002(a)(4)       TBCE's scope-of-practice rule defines the “CPT Code-
           itself refers to an agency of the federal govern-      book” as the version published by the AMA in 2004. See
           ment rather than the AMA (“the Centers for             22 Tex. Admin. Code § 75.17(b)(2) (identifying “the
           Medicare and Medicaid Services of the United           American Medical Association's annual Current Proce-
           States Department of Health and Human Ser-             dural Terminology CodeBook (2004)”). That is, in fact, the
           vices”), there is no dispute that at all relevant      version of the CPT Codebook that was in effect when the
           times CMS has fully incorporated the AMA's             Legislature adopted section 201.002(a)(4) in May
           CPT coding system, as TBCE has acknowledged            2005.FN30 Thus, TBCE has interpreted section
           in its rules. See Department of Health & Human         201.002(a)(4) to incorporate a fixed version of the CPT
           Services Medical Data Code Sets Rule, 45 C.F.R.        Codebook. See Ex parte Elliott, 973 S.W.2d at 741.
           § 162(b)(1) (2012) (adopting AMA's CPT code-           Moreover, we would reach the same conclusion even in the
           book for the period from October 16, 2003              absence of this rule. In Ex parte Elliott, we considered, in
           through September 30, 2013); 22 Tex. Admin.            the context of a habeas proceeding, whether the Legisla-
           Code § 75.17(a)(4) (2011) (Tex. Bd. of Chiro-          ture's incorporation of the Environmental Protection
           practic Exam'rs, Scope of Practice); see also          Agency's definition of “hazardous waste” was an uncon-
           HCPCS–General Information, Centers for Med-            stitutional delegation of legislative authority. See id. at
           icare & Medicaid Servs., https:// www. cms. gov/       741. We held that the Legislature intended to adopt the
           Med HCPCSGen Info (last visited Mar. 13, 2012)         EPA's definition of hazardous waste that existed on the
           (“Level I of the HCPCS is comprised of CPT             date the relevant legislation was enacted. See id. In
           (Current Procedural Terminology), a numeric            reaching our holding, we relied on supreme court prece-
           coding system maintained by the American               dent that (1) a statute that *488 adopts another statute by
           Medical Association (AMA).”). Consequently,            reference adopts the referenced statute as it exists at the
           the statutory reference to the “common procedure       time of adoption, but not as it may be amended in the fu-
           coding system adopted” by CMS was, at least at         ture, see id. (citing Trimmier v. Carlton, 116 Tex. 572, 296
           the time of the statute's 2005 enactment, tanta-       S.W. 1070, 1074 (1927)), and that (2) we must construe a
           mount to incorporating the AMA's CPT Code-             statute subject to varying interpretations in a manner that
           book.                                                  assumes the Legislature's intent to enact a constitutional
                                                                  statute. See id. at 742 (citing Brady v. Fourteenth Court of
      Whether the Legislature has, in fact, delegated its         Appeals, 795 S.W.2d 712, 715 (Tex.1990)); see also Tex.
 authority to define “surgical procedures” to the AMA             Gov't Code Ann. § 311.021(1) (West 2005) (establishing
 depends initially on whether section 201.002(a)(4) incor-        presumption that the Legislature intended for statutes to be
 porates (1) some fixed version of the CPT Codebook or (2)        constitutional); but see id. § 311.027 (West 2005)
 the CPT Codebook in whatever manner the AMA may                  (providing that statutory references to a statute or rule
 revise or amend it in the future. If the former, the Legis-      applies to revisions or amendments to the statute or rule).
 lature has not delegated its authority to define “surgical       In this case, we would similarly construe section
 procedure,” but has instead defined that term itself, albeit     201.002(a)(4) so as to avoid the potential constitutional
 by reference to another source. See Ex parte Elliott, 973        infirmities and hold that it references the version of the




Appendix F to Brief of Appellant                                                                                  Page 23 of 32
 CPT Codebook in effect on the date of its enactment, May       The district court did not err in granting summary judg-
 27, 2005. Under that construction, no delegation of the        ment to that effect. We overrule the Chiropractor Parties'
 Legislature's authority to define “surgical procedure,”        issues concerning MUA.
 much less an unlawful one, has occurred. See Ex parte
 Elliott, 973 S.W.2d at 742.                                    “Diagnosis”
                                                                     In its remaining issues, TCA (but not TBCE) chal-
           FN30. According to the evidence in the record,       lenges the district court's judgment invalidating rules au-
           the AMA publishes the CPT Codebook annually          thorizing chiropractors to make certain “diagnoses.” In
           in the late summer or early fall, to be effective    addition to responding to TCA's issues, the Physician Par-
           January 1. Thus, the CPT Codebook in effect for      ties assert what they term a “cross-point” urging affir-
           the calendar year 2005—i.e., CPT 2005—would          mance based on the grounds they raised in their first mo-
           have had a publication date of 2004. See, e.g.,      tion for partial summary judgment, and also what is sub-
           American Medical Association Current Proce-          stantively a motion to dismiss one of TCA's issues for lack
           dural Terminology CPT 2012 (4th ed. 2011)            of subject-matter jurisdiction. Before turning to the parties'
           (designated as “CPT 2012,” but published in          competing contentions, it is necessary to clarify, at some
           2011).                                               length, the specific rules at issue, the scope of the district
                                                                court's ruling, and the procedural posture of the remaining
      TCA counters that construing section 201.002(a)(4) to     issues on appeal.
 adopt a fixed version of the CPT Codebook poses
 due-process concerns because the AMA updates the CPT                The statutory scope of chiropractic, again, includes
 Codebook annually and prior versions of the CPT Code-          “us[ing] objective or subjective means to analyze, exam-
 book are “inaccessible.” We simply note that, in addition      ine, or evaluate the biomechanical condition of the spine
 to the fact that there is no summary-judgment evidence in      and musculoskeletal system of the human body” and
 the record that the 2004 edition of the CPT Codebook was       “perform[ing] nonsurgical, nonincisive procedures ... to
 inaccessible to any party, our own independent research on     improve *489 the subluxation complex or the biome-
 the delegation question has confirmed that this specific       chanics of the musculoskeletal system.” See Tex.
 publication is available through public sources, including     Occ.Code Ann. § 201.002(b)(1), (2). In subpart (d)(1) of its
 interlibrary loan from the Texas State Law Library. Thus,      scope-of-practice rule, TBCE construed these provisions to
 although not as readily accessible as the current version of   permit chiropractors to render certain “analyses,” “diag-
 the CPT Codebook, the 2004 CPT Codebook is not inac-           noses,” and “other opinions”:
 cessible.
                                                                  (d) Analysis, Diagnosis, and Other Opinions
      As previously noted, there is no dispute that MUA was
 described in the “surgical” section of the CPT Codebook            (1) In the practice of chiropractic, licensees may ren-
 throughout the period at issue, including in its 2004 ver-         der an analysis, diagnosis, or other opinion regarding
 sion. As there is no constitutional barrier to section             the findings of examinations and evaluations. Such
 201.002(a)(4)'s enforcement, we must give it effect and            opinions could include, but are not limited to, the
 hold that MUA is a “surgical procedure” excluded from the          following:
 statutory scope of chiropractic practice. See Tex. Occ.Code
 Ann. § 201.002(b)(2), (c)(1). Consequently, subsection
                                                                       (A) An analysis, diagnosis or other opinion re-
 75.17(e)(2)(O), which purports to authorize chiropractors
                                                                       garding the biomechanical condition of the spine or
 to perform MUA, is beyond TBCE's statutory authority
                                                                       musculoskeletal system including, but not limited
 and void. See Gulf States Utils. Co., 809 S.W.2d at 207.




Appendix F to Brief of Appellant                                                                                 Page 24 of 32
        to, the following:                                              or condition;


        (i) the health and integrity of the structures of the           (D) An opinion regarding the likelihood of recovery
        system;                                                         of a patient or condition under an indicated course
                                                                        of treatment;
        (ii) the coordination, balance, efficiency, strength,
        conditioning and functional health and integrity of             (E) An opinion regarding the risks associated with
        the system;                                                     the treatment procedures that are indicated in the
                                                                        therapeutic care of a patient or condition;
        (iii) the existence of structural pathology, functional
        pathology or other abnormality of the system;                   (F) An opinion regarding the risks associated with
                                                                        not receiving the treatment procedures that are in-
        (iv) the nature, severity, complicating factors and             dicated in the therapeutic care of a patient or con-
        effects of said structural pathology, functional pa-            dition;
        thology, or other abnormality of the system;
                                                                        (G) An opinion regarding the treatment procedures
        (v) the etiology of said structural pathology, func-            that are contraindicated in the therapeutic care of a
        tional pathology or other abnormality of the system;            patient or condition;
        and
                                                                        (H) An opinion that a patient or condition is in need
        (vi) the effect of said structural pathology, func-             of care from a medical or other class of provider;
        tional pathology or other abnormality of the system
        on the health of an individual patient or population            (I) An opinion regarding an individual's ability to
        of patients;                                                    perform normal job functions and activities of daily
                                                                        living, and the assessment of any disability or im-
        (B) An analysis, diagnosis or other opinion regard-             pairment;
        ing a subluxation complex of the spine or muscu-
        loskeletal system including, but not limited to, the            (J) An opinion regarding the biomechanical risks to
        following:                                                      a patient, *490 or patient population from various
                                                                        occupations, job duties or functions, activities of
        (i) the nature, severity, complicating factors and              daily living, sports or athletics, or from the ergo-
        effects of said subluxation complex;                            nomics of a given environment; and


        (ii) the etiology of said subluxation complex; and              (K) Other necessary or appropriate opinions con-
                                                                        sistent with the practice of chiropractic.
        (iii) the effect of said subluxation complex on the
        health of an individual patient or population of pa-           22 Tex. Admin. Code § 75.17(d)(1). In a subpart
        tients;                                                   (d)(2) to the rule, however, TBCE described several ex-
                                                                  amples of “analyses,” “diagnoses,” or “other opinions” that
                                                                  would be, in its view, outside the permissible scope of
        (C) An opinion regarding the treatment procedures
                                                                  chiropractic practice:
        that are indicated in the therapeutic care of a patient




Appendix F to Brief of Appellant                                                                                 Page 25 of 32
        (2) Analysis, diagnosis, and other opinions regard-        75.17(d) (or any of the challenged rules) were held to be
        ing the findings of examinations and evaluations           within the statutory scope of chiropractic, TMA asserted
        which are outside the scope of chiropractic include:       an alternative constitutional challenge to the underlying
                                                                   statutes themselves under article XVI, section 31 of the
        (A) incisive or surgical procedures;                       Texas Constitution.


        (B) the prescription of controlled substances, dan-             In their first motion for partial summary judgment, the
        gerous drugs, or any other drug that requires a pre-       Physician Parties sought judgment on their broader de-
        scription;                                                 claratory claim challenging 75.17(d). The Chiropractor
                                                                   Parties countered with their own motion for partial sum-
                                                                   mary judgment seeking dismissal of the Physician Parties'
        (C) the use of x-ray therapy or therapy that exposes
                                                                   claims that the use of the term “diagnosis” in its
        the body to radioactive materials; or
                                                                   scope-of-practice rule exceeded chiropractic's statutory
                                                                   scope. They asserted that “diagnosis” in its ordinary
        (D) other analysis, diagnosis, and other opinions
                                                                   meaning broadly denoted a process of analysis and evalu-
        that are inconsistent with the practice of chiropractic
                                                                   ation and was, therefore, included or implicit in the express
        and with the analysis, diagnosis, and other opinions
                                                                   statutory authorizations of chiropractors to “analyze,”
        described under this subsection.
                                                                   “examine,” and “evaluate,” if not also the authorizations to
                                                                   treat certain conditions. The district court denied the Phy-
      Id. § 75.17(d)(2).                                           sician Parties' motion and granted the Chiropractors' mo-
                                                                   tions “in part as to the Chiropractic *491 Board's use of the
       In their live pleadings, the Physician Parties sought       word ‘diagnosis' in its rule.” “However,” the court em-
 two declarations that 75.17(d) was invalid for exceeding          phasized in its order, it “reserve[d] judgment regarding
 the scope of chiropractic practice and permitting chiro-          ‘diagnosis' as it relates to scope of practice.” (Emphasis in
 practors to practice medicine without a medical license, in       original.)
 turn violating the Medical Practice Act and, alternatively,
 article XVI, section 31 of the Texas Constitution. First,               Subsequently, the Physician Parties filed a second
 they sought a declaration that 75.17(d)'s use of “diagnosis”      motion for partial summary judgment seeking relief only
 in itself rendered this rule and various related rules invalid,   as to two portions of 75.17(d)—(d)(1)(A), which author-
 reasoning that the statutory scope of chiropractic permits        ized “analysis, diagnosis or other opinion” concerning a
 licensees to “analyze, examine, or evaluate” certain con-         list of six specific subjects “regarding the biomechanical
 ditions, but not to “diagnose” them, and that “diagnose” is       condition of the spine or musculoskeletal system”; and
 instead reserved to the practice of medicine and certain          (d)(1)(B), which authorized “analysis, diagnosis or other
 other health care professions. Compare Tex. Occ.Code              opinion” concerning a list of three specific subjects “re-
 Ann. § 201.002(b)(1) (providing that one practices chiro-         garding a subluxation complex of the spine or musculo-
 practic if he or she “uses objective or subjective means to       skeletal system.” See 22 Tex. Admin. Code §
 analyze, examine, or evaluate ...”) with id. § 151.002(a)(3)      75.17(d)(1)(A), (B). In this motion, they relied on their
 (“ ‘[p]racticing medicine’ means the diagnosis, treatment,        narrower claim that these provisions exceeded chiroprac-
 or offer to treat ...”). Second, they sought a narrower dec-      tic's statutory scope of practice and also violated article
 laration that 75.17(d) exceeded the statutory scope of            XVI, section 31 of the Texas Constitution by permitting
 chiropractic by permitting licensees to “diagnose” condi-         chiropractors to “diagnose” conditions, such as diseases,
 tions beyond the biomechanical condition of the spine and         that were beyond the “biomechanical condition[s] of the
 musculoskeletal system. Additionally, in the event                spine and musculoskeletal system of the human body” that




Appendix F to Brief of Appellant                                                                                   Page 26 of 32
 chiropractors were statutorily permitted to “analyze, ex-         third and fourth issues, the Physician Parties assert what
 amine, or evaluate.” See Tex. Occ.Code Ann. §                     they style as a “cross-point” urging that we affirm the
 201.002(b)(1). The Chiropractor Parties countered with a          summary judgment as to (d)(1)(A) and (B) on the ground,
 joint “supplemental” motion for partial summary judgment          originally presented in their first motion for partial sum-
 and request for judicial notice urging that “diagnose”            mary judgment, that the statutory scope of chiropractic
 (which, again, they viewed as synonymous or implicit in           does not include “diagnosing” a condition, as opposed to
 “analyze,” “examine,” and “evaluate”) encompassed di-             “analyzing, examining, or evaluating” it. TCA *492 re-
 agnosis of diseases and any other matter listed in                plies, and we agree, that the Physician Parties'
 75.17(d)(1) and (2).FN31 Without stating the specific             “cross-point” seeks relief beyond that which they were
 grounds on which it relied, the district court granted the        afforded in the district court's judgment, which explicitly
 Physician Parties' second motion for partial summary              granted the Chiropractor Parties' motion for partial sum-
 judgment and, as before, denied the Chiropractor Parties'         mary judgment and rendered a take-nothing judgment as to
 motions except to the extent of granting them “as to the use      the Physician Parties' claims for a declaration that the use
 of the word ‘diagnosis' in the rule.” Both sum-                   of “diagnosis” in itself rendered 75.17(d) invalid. Conse-
 mary-judgment rulings were merged into and expressly              quently, to raise this contention on appeal, the Physician
 memorialized in the final judgment, which further declared        Parties were required to file their own notice of appeal. See
 “22 Tex. Admin. Code §§ 75.17(d)(A) and (B), concerning           Tex.R.App. P. 25.1(c) (“A party who seeks to alter the trial
 diagnosis, ... invalid and void” and ordered that the parties     court's judgment ... must file a notice of appeal.”); Lubbock
 take nothing on any claims for relief not awarded therein.        County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d
                                                                   580, 584 (Tex.2002); Quimby v. Texas Dep't of Transp., 10
           FN31. Additionally, in the meantime, TBCE filed         S.W.3d 778, 781 (Tex.App.-Austin 2000, pet. denied).
           a motion for partial summary judgment seeking           They did not do so. We thus lack jurisdiction to consider
           dismissal of the Physician Parties' constitutional      the Physician Parties' “cross-point” and dismiss it.FN32 See
           claims challenging 75.17(d) and, alternatively, its     Tarrant Restoration v. TX Arlington Oaks Apartments,
           underlying statutes. However, we cannot discern         Ltd., 225 S.W.3d 721, 733–34 (Tex.App.-Dallas 2007, pet.
           from the record that TBCE ever obtained a ruling        dism'd w.o.j.).
           on this motion.
                                                                            FN32. We emphasize that we express no opinions
      In its third issue, TCA urges that the district court                 regarding the merits of the cross-point that the
 erred in concluding that (d)(1)(A) (concerning “analysis,                  Physician Parties attempt to assert.
 diagnosis or other opinion” regarding what were termed
 aspects of “the biomechanical condition of the spine or                Conversely, the Physician Parties suggest that we lack
 musculoskeletal system”) exceeded chiropractic's statutory        subject-matter jurisdiction to consider TCA's fifth issue
 scope of practice. In its fourth issue, it advances a similar     challenging the potential summary-judgment ground that
 contention as to the district court's invalidation of (d)(1)(B)   75.17(d)(1)(A) and (B) violate article XVI, section 31 of
 (concerning “analysis, diagnosis or other opinion regard-         the Texas Constitution. Citing the portion of the district
 ing a subluxation complex of the spine or musculoskeletal         court's judgment stating that its summary-judgment rulings
 system”). In its fifth and final issue, TCA challenges the        had rendered “moot” “TMA's and TMB's constitutional
 Physician Parties' alternative summary-judgment ground            challenges,” the Physician Parties accuse TCA of seeking
 that (d)(1)(A) and (B) violated article XVI, section 31 of        an “advisory opinion” regarding a claim or issue that the
 the Texas Constitution.                                           district court never reached. We observe that while TMA's
                                                                   alternative constitutional challenges to the underlying
      [4] In addition to joining issue on the merits of TCA's      statutes were never adjudicated below and would indeed




Appendix F to Brief of Appellant                                                                                   Page 27 of 32
 have been mooted by the district court's sum-                        diagnosis or other opinion regarding the biomechanical
 mary-judgment rulings, it is unclear whether the district            condition of the spine or musculoskeletal system” and
 court's reference to “moot” “constitutional challenges” was          provides a non-exclusive list of examples of such analyses,
 intended also to refer to the constitutional challenge to rule       diagnoses, and opinions that TBCE has determined fit
 75.17(d)(1)(A) and (B), as opposed to the statutes, that the         within this provision. See 22 Tex. Admin. Code §
 Physician Parties had presented as a ground for partial              75.17(d)(1)(A). Although the *493 district court did not
 summary judgment. Regardless, we ultimately agree with               specify the grounds on which it relied to find this provision
 the Physician Parties that TCA's fifth issue is moot, if for         invalid, the Physician Parties argued in support of their
 no other reason than that the Physician Parties, by taking           motion for summary judgment, and also in their briefs to
 the position that the district court never reached their             this Court, that this provision improperly allows chiro-
 summary-judgment ground concerning the constitutional-               practors to diagnose diseases that cannot be considered
 ity of 75.17(d)(1)(A) and (B), have conceded that we                 biomechanical conditions of the spine or musculoskeletal
 cannot affirm the summary judgment invalidating those                system. On appeal, TCA responds that when read in the
 provisions on that basis.                                            context of the rule as a whole, subpart (d)(1)(A) does not
                                                                      exceed the statutory scope of chiropractic because it limits
      Having thus clarified and narrowed the matters in               chiropractors to making diagnoses only regarding the
 dispute, the sole dispositive questions remaining before us          biomechanical condition of the spine or musculoskeletal
 in regard to 75.17(d)(1)(A) and (B) are whether those rule           system, consistent with the statutory scope of chiropractic.
 provisions exceed the statutory scope of chiroprac-                  See Tex. Occ.Code Ann. § 201.002(b)(1); 22 Tex. Admin.
 tic—assuming, as we must do in the present procedural                Code § 75.17(d)(1)(A). We agree.
 posture, that TBCE's use of the term “diagnosis” does not
 in itself cause the provision to exceed the statutory or                  The effect of our procedurally required assumption
 permissible constitutional scope of chiropractic practice.           that TBCE's use of the term “diagnosis” does not in itself
                                                                      cause the scope-of-practice rule to exceed the statutory
 “Diagnoses” and “opinions” regarding the “biome-                     scope of chiropractic is that the word “diagnose” is syn-
 chanical condition of the spine or musculoskeletal system            onymous with the phrase “analyze, examine, or evaluate”
 ”                                                                    in the statutory scope of chiropractic. See Tex. Occ.Code
      [5] Subpart (d)(1)(A) of TBCE's scope-of-practice               Ann. § 201.002(b)(1). As such, subpart (d)(1)(A) effec-
 rule allows a chiropractor, again, to render “an analysis,           tively tracks the Legislature's scope of chiropractic:


               Tex. Occ.Code Ann. § 201.002(b)(1)                            22 Tex. Admin. Code § 75.17(d)(1)(A)
 (b) A person practices chiropractic under [the Chiropractic      (1) In the practice of chiropractic, licensees may render and
 Act] if the person:                                              analysis, diagnosis, or other opinion regarding the findings of
                                                                  examinations and evaluations. Such opinions could include,
                                                                  but are not limited to, the following:


 (1) uses objective or subjective means to analyze, examine, or (A) An analysis, diagnosis or other opinion regarding the
 evaluate the biomechanical condition of the spine and mus- biomechanical condition of the spine or musculoskeletal sys-
 culoskeletal system of the human body[.]                       tem including, but not limited to, the following [list of exam-
                                                                ples].
                                                                          Id.; 22 Tex. Admin. Code § 75.17(d)(1)(A). Thus, the




Appendix F to Brief of Appellant                                                                                      Page 28 of 32
 plain language of (d)(1)(A) limits chiropractors to diag-        disease, see Dorland's at 690 (defining “etiology” as “the
 nosing—i.e., “analyzing, examining, or evaluat-                  study or theory of the factors that cause disease”), 1416
 ing”—biomechanical conditions of the spine or musculo-           (defining “pathology” as “the branch of medicine that
 skeletal system. Further, because the list of non-exclusive      deals with the essential nature of disease”), to argue that
 examples of such “diagnoses” are grammatically depend-           this provision of the scope-of-practice rule allows chiro-
 ent on or otherwise stem from the paragraph's initial            practors to diagnose a wide range of diseases and condi-
 statement that the diagnosis regard the biomechanical            tions, including various cancers, arthritis, osteoporosis,
 condition of the spine or musculoskeletal system, the listed     gout, ALS, and bone fractures.
 examples are likewise limited to the biomechanical condi-
 tion of the spine or musculoskeletal system of the human                  FN33. “The system of muscles and tendons and
 body. In other words, the non-exclusive list of example                   ligaments and bones and joints and associated
 opinions or diagnoses cannot be read in isolation; rather,                tissues and nerves that move the body and main-
 they must be read as being dependent upon or bounded by                   tain its form.” 22 Tex. Admin. Code §
 the restriction that they also regard the biomechanical                   75.17(b)(4).
 condition of the spine or musculoskeletal system. To that
 extent, this complies with the statutory scope of chiro-
                                                                           FN34. “[A] neuromusculoskeletal condition that
 practic.
                                                                           involves an aberrant relationship between two
                                                                           adjacent articular structures that may have func-
      The Physician Parties counter that this provision does               tional or pathological sequelae, causing an alter-
 not restrict chiropractors to the biomechanical condition of              ation in the biomechanical and/or neu-
 the spine or musculoskeletal system because it allows them                ro-physiological reflections of these articular
 to diagnose diseases without limitation. In support of this               structures, their proximal structures, and/or other
 contention, they point to the rule's “expansive definitions”              body systems that may be directly or indirectly
 of “musculoskeletal system” FN33 and “subluxation*494                     affected by them.” Id. § 75.17(b)(7).
 complex,” FN34 the rule's “broad catch-all phrases “in-
 cluding but not limited to,” “structural pathology,” “func-
                                                                       But apart from the fact that the common, ordinary
 tional pathology,” and “etiology,” and finally to their as-
                                                                  meaning of “diagnosis” also includes the identification of a
 sertion that the common, ordinary meaning of the word
                                                                  “condition” or an “injury,” see Webster's at 622; American
 “diagnose” incorporates identification of diseases, see
                                                                  Heritage College Dictionary at 383, the Physician Parties'
 Webster's at 622 (defining “diagnose” as “to identify (as a
                                                                  argument presumes that “disease” would extend beyond
 disease or condition) by symptoms or distinguishing
                                                                  the biomechanical condition of the spine or musculoskel-
 characteristics”); American Heritage College Dictionary at
                                                                  etal system of the human body. This construction, as pre-
 383 (defining “diagnosis” as “act or process of determining
                                                                  viously suggested, ignores the plain language of the rule
 the nature and cause of a disease or injury through exam-
                                                                  restricting any such diagnosis to the biomechanical condi-
 ination of a patient”). Specifically, they assert that because
                                                                  tion of the spine or musculoskeletal system. The text and
 “biomechanical” refers only to the application of me-
                                                                  format of this provision plainly shows that “the system”
 chanical principles—i.e., the action of forces on matter or
                                                                  discussed in each of the examples is “the biomechanical
 material, see Webster's at 1401 (defining “mechanics” and
                                                                  condition of the spine and musculoskeletal system” re-
 “mechanical”)—to living bodies and does not involve
                                                                  ferred to at the beginning of the provision. Stated another
 diseases of any kind, chiropractors may not render a di-
                                                                  way, each of the listed examples is limited to the Legisla-
 agnosis, which by definition involves the identification of
                                                                  ture's standard of “biomechanical condition of the spine
 a disease. Relatedly, they point to the rule's use of “pa-
                                                                  and musculoskeletal system.” Thus, regardless of whether
 thology” and “etiology,” which also involve the study of
                                                                  diagnosis, pathology, or etiology invoke concepts of dis-




Appendix F to Brief of Appellant                                                                                  Page 29 of 32
 ease as the Physician Parties suggest, the bottom line is that          tion services to:
 paragraph (d)(1)(A) limits chiropractors to diagnoses re-
 garding “the biomechanical condition of the spine and                   (A) Determine the bio-mechanical condition of the
 musculoskeletal system” as required by the statutory scope              spine and musculoskeletal system of the human
 of chiropractic. Accordingly, the provision does not exceed             body including, but not limited to, the following....
 the statutory scope of chiropractic.
                                                                         ....
      In a related argument, the Physician Parties challenge
 TBCE's use of the phrase “could include, but are not lim-
                                                                         (B) Determine the existence of subluxation com-
 ited to” in subpart (d)(1) of the scope-of-practice rule,
                                                                         plexes of the spine and musculoskeletal system of
 suggesting that it, in combination with the issues discussed
                                                                         the human body and to evaluate their condition in-
 above, eviscerates any purported limitation on chiroprac-
                                                                         cluding, but not limited to....
 tors' authority to diagnose by allowing chiropractors to
 “diagnose any diseases (pathology) that relate to the bio-
                                                                         Id. § 75.17(c)(1)(A), (B). Thus, the plain language of
 mechanical condition of the spine and musculoskeletal
                                                                   75.17(d)(1) provides that chiropractors may render diag-
 system (redefined to include nerves and other tissues),
                                                                   noses regarding findings and examinations within the
 determine their origins *495 (etiology) and provide a
                                                                   statutory scope of chiropractic, and offers a non-exclusive
 prognosis on the disease's effect.” But this argument re-
                                                                   list of examples of such opinions. It does not, by its plain
 quires reading 75.17(d)(1) in an unnecessarily strained
                                                                   language, allow them to render diagnoses that do not in-
 manner.
                                                                   volve the statutory scope of chiropractic. As such, it does
                                                                   not exceed the statutory scope of chiropractic.
      As set forth above, paragraph (d)(1) states that chiro-
 practors “may render an analysis, diagnosis, or other
                                                                       We sustain TCA's third issue.
 opinion regarding the findings of examinations and eval-
 uations. Such opinions could include, but are not limited to,
 the following[.]” See 22 Tex. Admin. Code § 75.17(d)(1)            “Diagnoses” and “opinions” regarding “a subluxation
 (emphases added). “But are not limited to” as it is used          complex of the spine or musculoskeletal system ”
 here merely means that the list of examples that follows is            [6] Relatedly, the Physician Parties argued success-
 not a comprehensive list of every type of authorized              fully to the district court that the following paragraph of
 opinion—i.e., there could be other types of opinions that fit     TBCE's scope-of-practice rule, (d)(1)(B), also exceeds the
 within the parameters of the provision that are not men-          statutory scope of chiropractic:
 tioned in the list. Also, use of this phrase does not alter the
 limitation in the rule that the “diagnosis” referred to must            (1) In the practice of chiropractic, licensees may
 regard the findings of “examinations and evaluations,” a                render an analysis, diagnosis, or other opinion re-
 phrase that itself is described earlier in the                          garding the findings of examinations and evalua-
 scope-of-practice rule in terms of the statutory scope of               tions. Such opinions could include, but are not lim-
 chiropractic:                                                           ited to, the following:


      (c) Examination and Evaluation                                     ...


        (1) In the practice of Chiropractic, licensees of this           (B) An analysis, diagnosis or other opinion regard-
        board provide necessary examination and evalua-                  ing a subluxation complex of the spine or muscu-




Appendix F to Brief of Appellant                                                                                   Page 30 of 32
        loskeletal system including, but not limited to, the
        following: [list of examples].                             neuromusculoskeletal condition that involves an aber-
                                                                   rant relationship between two adjacent articular struc-
      22 Tex. Admin. Code § 75.17(d)(1)(B). Initially, the         tures that may have functional or pathological sequelae,
 Physician Parties argue that this paragraph of the                causing an alteration in the biomechanical and/or neu-
 scope-of-practice rule is invalid because it allows chiro-        ro-physiological reflections of these articular structures,
 practors to diagnose a subluxation complex despite the fact       their proximal structures, and/or other body systems that
 that the statutory scope of chiropractic only allows chiro-       may be directly or indirectly affected by them.
 practors to treat the subluxation complex. Compare Tex.
 Occ.Code Ann. § 201.002(b)(1) (allowing chiropractors                22 Tex. Admin. Code § 75.17(b)(7). The rule also
 “to analyze, examine, or evaluate the biomechanical con-        defines “musculoskeletal system” as the “system of mus-
 dition of the spine or musculoskeletal system”) (emphasis       cles and tendons and ligaments and bones and joints and
 added) with id. § 201.002(b)(2) (allowing chiropractors “to     associated tissues and nerves that move the body and
 ... perform procedures*496 to improve the subluxation           maintain its form.” See id. § 75.17(b)(4). “Neuro-” is a
 complex or the biomechanics of the musculoskeletal sys-         prefix meaning “nerve,” see Dorland's at 1284, and “ar-
 tem) (emphasis added). Stated another way, the Physician        ticular” refers to joints, see id. at 160. To a certain extent,
 Parties argue that while chiropractors—again assuming           then, use of the prefix “neuro-“ with the adjective “artic-
 our procedural limitations as to “diagnosis”—may diag-          ular” in connection with “musculoskeletal” is redundant in
 nose the biomechanical condition of the spine or muscu-         that TBCE's definition of “musculoskeletal system” al-
 loskeletal system, they can only treat, but not diagnose, the   ready includes both nerves and joints. Nevertheless, the
 subluxation complex. We find this argument unpersuasive.        bottom line here is that 75.17(d)(1)(B) allows chiroprac-
                                                                 tors to diagnose a condition that under unchallenged rules
       This argument suggests that the Legislature intended      is part of the musculoskeletal system of the human body.
 to allow chiropractors to treat a condition that is undis-      To that extent, it comports with the statutory scope of
 putedly unique to the practice of chiropractic, while also      chiropractic.
 deliberately depriving them of the ability to analyze, ex-
 amine, evaluate, or (given our procedural posture) “diag-            The Physician Parties also contend that the language
 nose” that condition. We cannot see how a chiropractor          of paragraph (d)(1)(B) allows chiropractors, in violation of
 would know to treat a subluxation complex if he had not         the statutory scope of chiropractic, to diagnose neurolog-
 first determined from an analysis, examination, or evalua-      ical conditions, pathological and neuro-physiological
 tion/ “diagnosis” that there was a problem with the sub-        consequences that effect the spine and musculoskeletal
 luxation complex that needed chiropractic treatment. A          system, and “other body systems” that are affected by
 more logical interpretation, and one supported by the text      subluxation. We disagree that this provision sweeps so
 of both the occupations code and TBCE's                         broadly. Although the definition of “subluxation complex”
 scope-of-practice rule and by the summary-judgment ev-          indicates that its existence may have functional or patho-
 idence, is that a subluxation complex is part of the bio-       logical consequences or that it may affect essentially every
 mechanical condition of the spine or musculoskeletal sys-       part of the body, the rule itself only allows chiropractors to
 tem of the human body and, thus, may be analyzed, eval-         render an analysis, diagnosis, or other opinion regarding a
 uated, examined, and diagnosed by chiropractors.                subluxation complex of the spine or musculoskeletal sys-
                                                                 tem. Accordingly, it does not exceed the statutory scope of
    TBCE's unchallenged definition of “subluxation               chiropractic.
 complex” establishes that it is a—




Appendix F to Brief of Appellant                                                                                   Page 31 of 32
      We sustain TCA's fourth issue.


                       CONCLUSION
      Having determined that, in the procedural posture of
 this appeal, the district *497 court erred in its judgment
 invalidating subparts 75.17(d)(1)(A) and (B) of TBCE's
 scope-of-practice rule, we reverse that portion of the
 judgment. In light of our reversal of the district court's
 summary judgment invalidating subparts 75.17(d)(1)(A)
 and (B) of the scope-of-practice rule, we remand the case
 for further proceedings regarding the Physician Parties'
 alternative constitutional challenges. Having otherwise
 overruled each of the Chiropractor Parties' issues on ap-
 peal, we affirm the remainder of the district court's judg-
 ment that subparts 75.17(a)(3), (c)(2)(D), (c)(3)(A), and
 (e)(2)(O) of TBCE's scope-of-practice rule are void.


 Tex.App.–Austin,2012.
 Texas Bd. of Chiropractic Examiners v. Texas Medical
 Ass'n
 375 S.W.3d 464


 END OF DOCUMENT




Appendix F to Brief of Appellant                               Page 32 of 32
