                                                                                                                         ACCEPTED
                                                                                                                     03-14-00774-CV
                                                                                                                             7501580
                                                                                                          THIRD COURT OF APPEALS
                                                                                                                     AUSTIN, TEXAS
                                                                                                               10/22/2015 3:26:12 PM
                                                                                                                   JEFFREY D. KYLE
                                                                                                                              CLERK
                                          No. 03-14-00774-CV

                                     IN THE COURT OF APPEALS                                     FILED IN
                                                                                         3rd COURT OF APPEALS
                                 FOR THE THIRD DISTRICT OF TEXAS                               AUSTIN, TEXAS
                                            AT AUSTIN                                    10/22/2015 3:26:12 PM
_____________________________________________________________________________________________________________________
                                                                                             JEFFREY D. KYLE
                                                                                                    Clerk
                                       ELLEN JEFFERSON, D.V.M.

                                                                       Appellant,
                                                        v.

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

                                                                       Appellees.
__________________________________________________________________

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

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


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


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

                                       Oral Argument Requested
                                             TABLE OF CONTENTS

Table of Authorities ................................................................................................. iii

Introduction .............................................................................................................. 1

Argument................................................................................................................... 2

           I. The TBVME’s Appellees’ Brief Concedes Multiple Errors Within
              the Trial Court’s Judgment ........................................................................ 2

           II. The TBVME’s Proposed Alternative Grounds for Upholding the
               Trial Court’s Dismissal of Dr. Jefferson’s Uniform Declaratory
               Judgment Act Claims are Without Merit. ................................................. 4

                A. The Agency’s “Exclusive Jurisdiction” Argument Is Patently
                   Wrong. .............................................................................................. 4

                        1. The Texas Legislature did not convey upon the TBVME
                           the power to decide to act, and then act, outside its
                           authority. .................................................................................... 4

                        2. Regardless, Dr. Jefferson’s exhaustion arguments—
                           which the TBVME does not contest—defeat “exclusive
                           jurisdiction” as a ground for dismissing her claims................. 12

                B.     The Agency’s “Ripeness” Argument Is Also Wrong .................... 14

    III.       This Court Should Hold That, As a Matter of Law, the TBVME’s
               Prosecution of Dr. Jefferson is Ultra Vires. ............................................ 17

    IV.        The TBVME’s Illegal Prosecution of Dr. Jefferson Also Merits
               Mandamus Relief..................................................................................... 20

Prayer ...................................................................................................................... 22

Certificate of Service .............................................................................................. 24

Certificate of Compliance ....................................................................................... 25



                                                               ii
                                    TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner,
      387 U.S. 136 (1967), abrogated on other grounds in
      Califano v. Sanders, 430 U.S. 99 (1977)...................................................... 16

Bexar Metro. Water Dist. v. City of Bulverde,
      156 S.W.3d 79 (Tex. App.—Austin 2004, pet. denied) ................................. 8

Blue Cross Blue Shield of Tex. v. Duenez,
      201 S.W.3d 674 (Tex. 2006) ...................................................................... 7, 8

Butnaru v. Ford Motor Co.,
     84 S.W. 3d 198 (Tex. 2002) ....................................................................... 7, 8

Cash Am. Int’l Inc. v. Bennett,
     35 S.W.3d 12 (Tex. 2000) ........................................................ 5, 6, 12, 13, 14

City of Sherman v. Pub. Util. Comm’n of Tex.,
       643 S.W.2d 681 (Tex. 1983) ................................................... 9-10, 12, 13, 14

Dow Chem. Co. v. Francis,
     46 S.W.3d 237 (Tex. 2001) .......................................................................... 17

Hamilton v. Washington,
     No. 03-11-00594-CV, 2014 WL 7458988 (Tex. App.—Austin
     Dec. 23, 2014, no pet.) (mem. op.) ............................................................... 21

Hawkins v. Cmty. Health Choice,
     127 S.W.3d 322 (Tex. App.—Austin 2004, no pet.)...................................... 9

Hebert Acquisitions, LLC v. Tremur Consulting Contractors, Inc.,
     No. 03-09-00385-CV, 2011 WL 350466 (Tex. App.—Austin
     Feb. 4, 2011, no pet.) (mem. op.) ................................................................. 19

Janek v. Harlingen Family Dentistry, P.C.,
      451 S.W.3d 97 (Tex. App.—Austin 2014, no pet.) ...................................... 20


                                                    iii
Mag-T, L.P. v. Travis Cent. Appraisal Dist.,
     161 S.W.3d 617 (Tex. App.—Austin 2005, pet. denied) ................. 12, 13, 14

Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs,
      278 S.W.3d 17 (Tex. App.—Austin 2008, pet. dism’d)......................... 15, 16

Rea v. State,
      297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.).............................. 14, 15

Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
     84 S.W.3d 212 (Tex. 2002) .......................................................................... 14

Tara Partners, Ltd. v. City of S. Hous.,
      282 S.W.3d 564 (Tex. App.—Houston [14th Dist.] 2009,
      pet. denied) ................................................................................................... 10

Teladoc v. Tex. Med. Bd.,
      453 S.W.3d 606 (Tex. App.—Austin 2014, pet. filed) ................................ 12

Tex. Court Reporters Certification Bd. v. Esquire Deposition
      Servs., L.L.C., 240 S.W.3d 79 (Tex. App.—Austin 2007, no pet.) ................ 7

Tex. Dept. of Licensing & Regulation v. Roosters MGC, LLC,
      No. 03-09-00253-CV, 2010 WL 2354064 (Tex. App.—Austin
      June 10, 2010, no pet.) (mem. op.) ............................................................. 7, 8

Tex. Mut. Ins. Co. v. Tex. Dep’t of Ins., Div. of Workers’ Comp.,
      214 S.W.3d 613 (Tex. App.—Austin 2006, no pet.).................... 5, 12, 13, 14

Tex. Student Hous. Auth. v. Brazos Cnty. Appraisal Dist.,
      No. 13-0593, 2015 WL 1870013 (Tex. Apr. 24, 2015) ....................... 2, 9, 20

Tex. State Bd. of Exam’rs in Optometry v. Carp,
      343 S.W.2d 242 (Tex. 1961) .................................................................... 9, 10

Westheimer Indep. Sch. Dist. v. Brockette,
     567 S.W.2d 780 (Tex. 1978) .......................................................................... 9




                                                           iv
Statutes and Rules

TEX. OCC. CODE § 801.004............................................................................. 6, 10, 21

TEX. OCC. CODE § 801.004(1) ........................................................................ 1, 10, 17

TEX. OCC. CODE § 801.402(6) ................................................................................... 6

TEX. OCC. CODE § 801.402(13) ................................................................................. 6

TEX. OCC. CODE § 801.456(a) ................................................................................... 6




                                                       v
                                 INTRODUCTION

      This case is and has always been about the TBVME’s disregard for the

Texas Legislature’s 100-year-old “owner exemption” to the Veterinary Licensing

Act. See TEX. OCC. CODE § 801.004(1). The TBVME has made clear, time and

again, that it disagrees as a matter of policy with the “owner exemption”; it

believes that the Legislature made the wrong call when it expressly excluded from

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

of the owner, or designated caretaker. Id. In fact, the agency’s Executive Director

and Defendant Nicole Oria lobbied the Texas Legislature to change the Act so as

to eliminate the “owner exemption” for shelter veterinarians because she

believes—as the TBVME argues throughout its brief—that the century-old

statutory exception to its jurisdiction poses a danger to the public.      But her

lobbying effort failed and the Legislature stuck with the “owner exemption,” and

this case (and the judicial system generally) is an improper medium for a

government agency to question the soundness of the Legislature’s will.

      Because the TBVME’s prosecution of Dr. Jefferson (whose non-profit owns

the animals the care of which the agency questions) is in clear and unambiguous

contravention of the “owner exemption,” the agency’s Appellees’ brief is forced to

rely on hyperbole, strawman arguments, and misstatements of Texas jurisdictional

principles. But its obfuscations can do nothing to evade the long-settled Texas rule

that a governmental entity is not entitled to act beyond its authority, and when it
                                         1
does, courts are empowered to intervene to stop it. As the Texas Supreme Court

recently made clear yet again:

      If an injured party with standing brings and proves an action seeking
      to confine [a governmental agency] within its statutory constraints . . .
      courts may intervene to provide an appropriate remedy, such as an
      injunction to prevent [the agency] from continuing to exceed its
      limited statutory authority.

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

1870013, at *6 (Tex. Apr. 24, 2015).

      Because the trial court’s judgment to the contrary is erroneous, Dr. Jefferson

respectfully requests that the Court reverse the trial court’s erroneous judgment and

render judgment that the TBVME’s prosecution of Dr. Jefferson for the treatment

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

                                   ARGUMENT

I.    THE TBVME’S APPELLEES’ BRIEF CONCEDES MULTIPLE ERRORS WITHIN
      THE TRIAL COURT’S JUDGMENT.

      The TBVME’s Appellees’ brief contains two critical concessions of error in

the trial court’s judgment. First and foremost, the TBVME concedes that the trial

court erred when—in its primary challenged holding—it dismissed Dr. Jefferson’s

Uniform Declaratory Judgment Act claims for failure to exhaust administrative

remedies. See 1.CR.855; TBVME Appellees’ Br. at 24-25. As Dr. Jefferson

explained in her opening brief, the trial court’s dismissal of her declaratory-relief

claims for failure to exhaust administrative remedies was erroneous because (1) the

                                         2
Legislature did not confer upon the TBVME “exclusive jurisdiction” over conduct

falling within the “owner exemption,” and (2) even if it had, several exceptions to

the exhaustion doctrine apply here—including the uncontested exception for ultra

vires claims. See Jefferson Appellant’s Br. at 21-40. In the TBVME’s Appellees’

brief, the agency concedes that the trial court’s exhaustion holding is error,

asserting that the doctrine is “immaterial” to the resolution of Dr. Jefferson’s

claims. See TBVME Appellees’ Br. at 24. The agency’s concession in that regard

means that the part of the trial court’s judgment dismissing Dr. Jefferson’s

declaratory-relief claims for failure to exhaust administrative remedies must be

reversed unless the agency can support the dismissal on alternative grounds—

which it cannot. See infra Part II.

      Second, the TBVME concedes that the trial court erred by issuing

unrequested and ambiguous declaratory relief regarding the agency’s authority to

enforce “other laws” in the owner-exemption context. See TBVME Appellees’ Br.

at 31-32.   As Dr. Jefferson explained in her opening brief, the trial court’s

declaration regarding “other laws” constituted reversible error because no such

declaration was requested by either party, the declaration is legally incorrect, and it

is not even clear what that part of the judgment means. See Jefferson Appellant’s

Br. at 57-60.

      Because the TBVME concedes that the trial court’s judgment is erroneous

on at least these two grounds, this appeal is no longer about whether the trial court
                                          3
erred but rather how much it erred and what the appropriate appellate remedies for

the errors are under the circumstances. The remaining issues are briefed below.

II.   THE TBVME’S PROPOSED ALTERNATIVE GROUNDS FOR UPHOLDING THE
      TRIAL COURT’S DISMISSAL OF DR. JEFFERSON’S UNIFORM DECLARATORY
      JUDGMENT ACT CLAIMS ARE WITHOUT MERIT.

      In her opening brief, Dr. Jefferson explained that the trial court erroneously

dismissed Dr. Jefferson’s Uniform Declaratory Judgment Act claims on the stated

ground that she “failed to exhaust administrative remedies.”           See Jefferson

Appellant’s Br. at 21-40. The TBVME admits the trial court’s error in this regard,

but asserts that the dismissal of Dr. Jefferson’s claims is supportable on alternative

grounds. Specifically, the agency asserts that (1) the TBVME has “exclusive

jurisdiction” to decide whether the Legislature has given it jurisdiction to prosecute

conduct it deems unlawful, see TBVME Appellees’ Br. at 11-19; and (2) Dr.

Jefferson’s claims are “unripe” because the agency has not completed its ultra

vires prosecution of Dr. Jefferson, id. at 25-29. Both arguments are incorrect.

      A.     The Agency’s “Exclusive Jurisdiction” Argument Is Patently
             Wrong.

             1.    The Texas Legislature did not convey upon the TBVME the
                   power to decide to act, and then act, outside its authority.

      The TBVME’s first proposed alternative ground for affirming the trial

court’s dismissal of Dr. Jefferson’s declaratory-relief claims is that—according to

the agency—the Legislature impliedly conferred upon it “exclusive jurisdiction” to

determine whether a particular case falls within or outside its jurisdiction and a
                                          4
concomitant right, if it so chooses, to conduct itself outside the confines of its legal

authority without interference from the judiciary. See TBVME Appellees’ Br. at

11-19. In other words, the TBVME contends that it is endowed with a kind of

implicitly conferred “superpower” that affords it—unlike essentially every other

agency in the State—the ability to exceed its statutorily conferred authority

whenever, however, and against whomever it in its sole discretion deems

appropriate; and (2) divests Texas trial courts of their inherent constitutional and

statutory jurisdiction to stop the government agency from acting outside its

authority. Id. The lawlessness of the TBVME’s position is at once transparent and

breathtaking; it is also baseless and in contravention of settled Texas law.

      As Dr. Jefferson explained in her opening brief, a government agency has

“exclusive jurisdiction” over a dispute if the Legislature has granted the agency

“the sole authority to make the initial determination in a dispute.” Tex. Mut. Ins.

Co. v. Tex. Dep’t of Ins., Div. of Workers’ Comp., 214 S.W.3d 613, 616 (Tex.

App.—Austin 2006, no pet.) (emphasis original). Whether the Legislature has

conferred upon an agency such authority is a question of statutory construction, the

purpose of which is “to give effect to the Legislature’s intent.” Cash Am. Int’l Inc.

v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000). The test for determining whether an

agency has “exclusive jurisdiction” over a particular subject matter is whether a

statute “indicate[s] clearly or plainly that the Legislature intended” to divest Texas

district courts of subject-matter jurisdiction over the particular subject in favor of
                                           5
the agency’s initial determination. Id. at 16. Because nothing in the Veterinary

Licensing Act expressly or impliedly indicates the Legislature’s clear intent to

divest Texas courts of their inherent constitutional jurisdiction to decide whether

the TBVME is acting outside its statutory authority (or more specifically, whether

it is prosecuting a person covered by the “owner exemption”), the agency’s

exclusive-jurisdiction argument is without merit.

      In its attempt to claim “exclusive jurisdiction” over Dr. Jefferson’s claims

that the TBVME exceeded its statutory authority by regulating conduct expressly

excluded from its jurisdiction, the TBVME points to its general authority to

discipline a veterinarian for violating the Veterinary Licensing Act or the rules

promulgated thereunder. See TBVME Appellees’ Br. at 12-13 (citing TEX. OCC.

CODE § 801.456(a); 801.402(6),(13)). However, nothing in the provisions the

TBVME points to—or in any other provision in its enabling Act—indicates

expressly or impliedly that the agency has “exclusive authority” to either (1)

decide whether it is prosecuting a person for conduct falling outside its jurisdiction,

or (2) prosecute a person whose conduct falls outside its jurisdiction once it has

decided to do so. Moreover, the agency has tellingly neglected to inform the Court

that—per the plain terms of the statute—each of the provisions the agency points

to for claimed “exclusive jurisdiction” over owner-exempted conduct expressly

“does not apply to” conduct falling within the “owner exemption.” TEX. OCC.

CODE § 801.004. It defies reason to assert that provisions that the Legislature
                                          6
expressly stated do not apply to owner-exempted conduct were intended by the

Legislature to apply to owner-exempted conduct.

      The TBVME’s claimed precedential authority for its argument is also of no

help. Its primary authority—Texas Court Reporters Certification Bd. v. Esquire

Deposition Servs., L.L.C.—did not hold that the court reporters’ board has

exclusive jurisdiction over claims that it acted outside of its statutory authority, but

instead held that the plaintiff’s request for a declaration that its contested conduct

falls outside the pertinent statute’s restrictions sought “broader relief than might be

available in the disciplinary proceeding” and therefore was not precluded by the

agency’s claimed “exclusive authority.” 240 S.W.3d 79, 91 (Tex. App.—Austin

2007, no pet.); see also Tex. Dept. of Licensing & Regulation v. Roosters MGC,

LLC, No. 03-09-00253-CV, 2010 WL 2354064, at *7 n.4 (Tex. App.—Austin June

10, 2010, no pet.) (mem. op.) (noting that declaratory-relief claims at issue in

Esquire were not dismissed “because of any exclusivity concerns”).

      The TBVME’s reliance on the Texas Supreme Court’s Butnaru and Duenez

cases fairs no better. Each of those cases interprets a statute that—unlike the

Veterinary Licensing Act—expressly conveys “exclusive jurisdiction” upon the

state agency involved, and neither case remotely reaches the conclusion advanced

by the TBVME here—i.e., that a statute’s general appropriation of regulatory

duties gives an agency “exclusive jurisdiction” to decide whether it is acting within

its statutory authority (and to proceed to act outside its authority if it so chooses).
                                           7
In Butnaru v. Ford Motor Co., the Supreme Court held that a statute conveying

upon a state agency “exclusive, original jurisdiction” over a subject matter gave the

agency “exclusive jurisdiction” over causes of action expressly falling within that

subject matter but not over claims related thereto but ultimately lacking a clear

indication of legislative intent to be included. 84 S.W.3d 198, 203, 207-08 (Tex.

2002). And in Blue Cross Blue Shield of Tex. v. Duenez, the Supreme Court held

that even if the Legislature expressly conveys upon a government agency

“exclusive authority to determine all questions relating to” a particular subject

matter, the claims still will not be barred if an exception to the exhaustion-of-

administrative-remedies doctrine applies. 201 S.W.3d 674, 676-77 (Tex. 2006)

(emphasis added). Here, there is no express conveyance of “exclusive jurisdiction”

in the Veterinary Licensing Act; there are no words in the Act indicating that the

TBVME has authority to resolve “all questions” relating to the treatment or care of

animals; there is nothing explicit or implicit in the Act indicating that the agency

has the right to determine the limits of its own jurisdiction; and there is nothing

explicit or implicit in the Act that defeats Texas district courts’ inherent

jurisdiction to stop the TBVME from acting outside its statutory authority. See

Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79, 90 (Tex. App.—

Austin 2004, pet. denied) (rejecting exclusive-jurisdiction argument because no

statutory language gave agency exclusive authority to interpret its enabling

statute); Roosters MGC, 2010 WL 2354064, at *6 (rejecting exclusive-jurisdiction
                                         8
argument because declaratory-judgment claim sought broader relief than mere

reversal of the agency’s disciplinary action). Accordingly, when Dr. Jefferson

sought “to confine [the TBVME] within its statutory constraints,” the trial court

undoubtedly had jurisdiction “to intervene to provide the appropriate remedy, such

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

statutory authority.” See Tex. Student Hous. Auth., 2015 WL 1870013, at *6;

Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978)

(courts may intervene “when an agency is exercising authority beyond its

statutorily conferred powers”).1

       Moreover, as Dr. Jefferson explained in her opening brief, the Legislature

went even further in the Veterinary Licensing Act to expressly and specifically

exclude the TBVME from regulating conduct covered by the “owner exemption.”

See Jefferson Appellant’s Br. at 27-30. As the Texas courts have uniformly held,

when a statute expressly excludes a specific subject area from a regulatory

agency’s authority, it necessarily does not confer upon the agency the “exclusive

jurisdiction” to regulate within that subject area. Id. (citing City of Sherman v.

1
  The agency’s references to Hawkins v. Cmty. Health Choice, 127 S.W.3d 322 (Tex. App.—
Austin 2004, no pet.) and Tex. State Bd. of Exam’rs in Optometry v. Carp, 343 S.W.2d 242, 246
(Tex. 1961) are also off point. Hawkins expressly holds that a state agency can be forced to
comply with the law even when it believes it need not do so under the facts of a particular case.
127 S.W.2d at 324-26 (criticizing the state agency for attempting to be the “sole fact-finder” and
stating that permitting its argument would mean that claims against the agency “would rise or
fall based on that agency’s potentially self-interested interpretation” of the law and facts). And
Carp merely recognizes that courts should not interfere with an agency’s “lawful exercise of
duties and functions committed to them by law.” 343 S.W.2d at 246 (emphasis added). It affords
the TBVME no protection for acting unlawfully or outside its statutorily delegated authority.
                                                9
Pub. Util. Comm’n of Tex., 643 S.W.2d 681, 683-85 (Tex. 1983); Tara Partners,

Ltd. v. City of S. Hous., 282 S.W.3d 564, 571 (Tex. App.—Houston [14th Dist.]

2009, pet. denied)). Even though both referenced cases expressly so hold, the

TBVME asserts each is “distinguishable.” See TBVME Appellees’ Br. at 15. The

agency claims that Tara Partners is “distinguishable” because in that case, the

agency was “expressly” barred from regulating the contested conduct, and that City

of Sherman is “distinguishable” because in that case, the regulatory agency’s

exemption was “clear.” Id. at 15-16 (emphasis original). What the TBVME

forgets is that the “owner exemption” to its regulatory authority is also “express”

and “clear.” See TEX. OCC. CODE § 801.004(1) (the Veterinary Licensing Act

“does not apply to . . . the treatment or care of an animal in any manner by the

owner of the animal, an employee of the owner, or a designated caretaker of the

animal . . . .”).

       Finally, the Board hyperbolically asserts—as it does throughout its brief—

that if the Court were to hold that the TBVME does not have “exclusive

jurisdiction” to decide whether a person’s conduct falls within the agency’s

statutory authority (and thus allow a litigant to question the agency’s ultra vires

acts), “any vet could simply claim to be exempt without any investigation of the

facts underlying such a claim” and “[t]hat would lead to the unregulated practice of

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

TBVME Br. at 17 (if a person is allowed to question the agency’s ultra vires act,
                                        10
“any veterinarian could evade the Act simply by claiming to be exempt.”)

(emphasis original), 18 (allowing ultra vires claim would permit “a vet [sic] [to]

take him or herself out of the disciplinary authority of the Board by just saying

‘because I said so.’”). To put it simply, this argument is nonsensical. Permitting

access to Texas courts for claims that a governmental agency has acted ultra vires

would not lead to the “unregulated practice of veterinary medicine,” or to the

evasion of the Veterinary Licensing Act “simply by claiming to be exempt” or “by

just saying ‘because I said so.’”      Id. at 17-18 (emphasis original).      Rather,

recognizing Texas courts’ inherent constitutional and statutory jurisdiction over

ultra vires claims merely allows a litigant the opportunity to prove that a

government agency has acted unlawfully. And only upon such proof would a

Texas court bar the agency from exceeding its statutory authority (not from

exercising its lawful authority). And if, in fact, a person who is by law exempt

from a government agency’s regulatory authority proves her case, a court order

halting the agency’s illegal conduct would not undermine the Legislature’s intent;

to the contrary, it would give effect to the Legislature’s intent. This Court recently

said it well:

       [W]here, as here, an agency’s legal or policy pronouncements seek to
       control the conduct of a free people through the assertion or
       threatened assertion of State power, agency “impotence” is hardly the
       relevant concern under our Constitution and laws. Rather, it is the
       risk that agencies—whose legitimate authority and very existence
       must derive from law and not merely perceived “expediency”—will
       stray from their legal limitations (perhaps with the best of individual
                                         11
        intentions, but exceeding them nevertheless) through what federal
        courts have aptly termed a “tyranny of small decisions” that
        substantively assert Executive or Legislative power over the citizenry
        through forms calculated to avoid the meaningful checks and balances
        the Framers intended the Judiciary to provide.

Teladoc, Inc. v. Tex. Med. Bd., 453 S.W.3d 606, 622 (Tex. App.—Austin 2014,

pet. filed) (citations omitted).   The TBVME’s claim of impotence—should it

actually have to defend the legality of its actions in the courts of Texas—is equally

misdirected.

               2.   Regardless, Dr. Jefferson’s exhaustion arguments—which
                    the TBVME does not contest—defeat “exclusive
                    jurisdiction” as a ground for dismissing her claims.

        A state agency’s “exclusive jurisdiction” over a dispute is not an automatic

bar to a lawsuit but rather sets up a second inquiry: whether the litigant has

exhausted her administrative remedies under the particular circumstances of the

case.    Cash Am., 35 S.W.3d at 16 (“When the Legislature vests exclusive

jurisdiction in an agency, exhaustion of remedies is required.”); City of Sherman,

643 S.W.2d at 683; Tex. Mut. Ins. Co., 214 S.W.3d at 616; Mag-T, L.P. v. Travis

Cent. Appraisal Dist., 161 S.W.3d 617, 625 (Tex. App.—Austin 2005, pet. denied)

(if agency has exclusive authority, suit subject to dismissal unless claim “falls into

one of the exceptions to the exhaustion of administrative remedies doctrine”). In

other words—contrary to the TBVME’s assertion (made without authority) that

exhaustion-of-administrative-remedies is “simply immaterial” once a court has

determined an agency has “exclusive subject matter jurisdiction,” see TBVME
                                         12
Appellees’ Br. at 24, a Texas district court will be divested of jurisdiction over a

suit due to “exclusive jurisdiction” only if both the agency has “exclusive

jurisdiction” and (2) none of the exceptions to the exhaustion-of-administrative-

remedies doctrine applies. See Cash Am., 35 S.W.3d at 16; City of Sherman, 643

S.W.2d at 683; Tex. Mut. Ins. Co., 214 S.W.3d at 616; Mag-T, L.P., 161 S.W.3d at

625.

       In her opening brief, Dr. Jefferson briefed four exceptions to the exhaustion-

of-administrative-remedies doctrine that retain the trial court’s jurisdiction over

this case regardless of whether the TBVME has “exclusive jurisdiction” over the

“owner exemption.”       First, the doctrine does not divest a district court of

jurisdiction to adjudicate claims—like those here—alleging that a governmental

agency is acting outside its authority. See Jefferson Appellant’s Br. at 31-33.

Second, the doctrine does not divest a district court of jurisdiction where—as

here—forcing the plaintiff to first exhaust administrative remedies would subject

the plaintiff to irreparable harm. Id. at 33-36. Third, the doctrine does not divest a

district court of jurisdiction where—as here—the issue presented is legal in nature.

Id. at 36-37. And fourth, the doctrine does not divest a district court of jurisdiction

where—as here—the litigant’s participation in further administrative proceedings

would be an “exercise in futility.” Id. at 37-40. In its Appellees’ brief, the

TBVME did not contest Dr. Jefferson’s first, third, and fourth arguments. See

TBVME Appellees’ Br. at 23-25. As a result, it is uncontested that Dr. Jefferson is
                                          13
not required to exhaust her administrative remedies, id., which means that the trial

court has jurisdiction over this suit regardless of whether the TBVME has

“exclusive jurisdiction.” See Cash Am., 35 S.W.3d at 16; City of Sherman, 643

S.W.2d at 683; Tex. Mut. Ins. Co., 214 S.W.3d at 616; Mag-T, L.P., 161 S.W.3d at

625. The TBVME’s reliance on “exclusive jurisdiction” as an alternative ground

to uphold the trial court’s dismissal of Dr. Jefferson’s Uniform Declaratory

Judgment Act claims is thus without merit.

      B.     The Agency’s “Ripeness” Argument Is Also Wrong.

      Dr. Jefferson anticipated that the TBVME would assert “ripeness” as an

alternative ground for the trial court’s dismissal of her declaratory-relief claims and

therefore already addressed the argument in her opening brief. See Jefferson

Appellant’s Br. at 41-43. As Dr. Jefferson explained, a ripeness objection does not

divest a district court of jurisdiction to consider a claim—like Dr. Jefferson’s—

alleging that a state actor is acting “in excess of its powers and jurisdiction.” Rea

v. State, 297 S.W.3d 379, 384 (Tex. App.—Austin 2009, no pet.) (citing Subaru of

Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002)). That

rule specifically defeats an agency’s jurisdictional plea whenever the complainant

alleges—like Dr. Jefferson here—that “the Board or SOAH lacks authority to

make an initial determination regarding the revocation or suspension of a . . .

license” under the particular facts of a case.       Id. at 384-85.   The TBVME’s

Appellees’ brief offers no response on this point.
                                          14
      Instead, the agency’s brief alleges that Dr. Jefferson’s suit is unripe because,

although the TBVME has already concluded that Dr. Jefferson has violated the

Veterinary Licensing Act and rules promulgated thereunder, 1.CR.117, it has not

yet concluded its prosecution of Dr. Jefferson. See TBVME Appellees’ Br. at 26-

27. But this Court has already rejected that argument when the TBVME advanced

it in another case:

      The Board argues that this case is not ripe because the statute in
      question has not yet been enforced against the practitioners in a final
      agency action. However, in order to establish ripeness . . ., the
      practitioners are not required to demonstrate that the statute has been
      [finally] enforced against them, but only “that an enforcement action
      is ‘imminent or sufficiently likely.’” As the Board states in its brief
      on appeal, [it has already begun enforcement action]. . . . [T]he
      informal conferences and [allegations] that the practitioners were in
      violation of the Act and that their cases would be referred to SOAH,
      are sufficient to establish that an enforcement action is imminent or
      sufficiently likely.

Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d 17, 25 (Tex.

App.—Austin 2008, pet. dism’d).

      Moreover, as Dr. Jefferson explained in her opening brief, an additional

reason ripeness is not a bar to the trial court’s jurisdiction is that she “would suffer

hardship if judicial review is withheld until administrative proceedings have

concluded.” See Jefferson Appellant’s Br. at 41 (quoting Mitz, 278 S.W.3d at 26).

As this Court has explained, hardship is established when participating in an

administrative proceeding “requires an immediate and significant change in the

plaintiffs’ conduct of their affairs with serious penalties attached to
                                          15
noncompliance.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 153 (1967),

abrogated on other grounds in Califano v. Sanders, 430 U.S. 99 (1977)). Dr.

Jefferson and San Antonio Pets Alive would suffer severe hardship—including

either having to make significant changes to their business practice or exposing

themselves to “serious penalties attached to noncompliance”—if Dr. Jefferson

were forced to continue to fight the TBVME’s ultra vires conduct within the

administrative process. See Jefferson Appellant’s Br. at 42-43; see also id. at 33-

36.

      Here too, the TBVME’s response makes little sense. The agency claims that

“Dr. Jefferson has been free to operate SAPA throughout the course of this case

and underlying administrative proceeding.” See TBVME Appellees’ Br. at 28.

But the fact that Dr. Jefferson is physically “free” is inconsequential. The question

is whether Dr. Jefferson is forced into a lose-lose choice of either (1) significantly

changing her business practices, or (2) exposing herself to the possibility of

additional charges by not changing her business practices. See Mitz, 278 S.W.3d at

26. The evidence at trial conclusively demonstrated that that is exactly what has

happened here: Dr. Jefferson must either comply with the agency’s incorrect view

of the law and significantly change her business practices pending administrative

review or face additional potential serious penalties for not significantly changing

her business practices to comport with the agency’s incorrect view of the law. See



                                         16
Jefferson Appellant’s Br. at 33-36, 42-43.              For each of these reasons, Dr.

Jefferson’s claims are not “unripe.” 2

III.   THIS COURT SHOULD HOLD THAT, AS A MATTER OF LAW, THE TBVME’S
       PROSECUTION OF DR. JEFFERSON IS ULTRA VIRES.

       Given that the trial court had jurisdiction to determine Dr. Jefferson’s

declaratory-relief claims, the trial court should have reached the merits of those

claims.    Based on the conclusive and uncontroverted evidence and testimony

presented at the combined plea and trial on the merits, this Court should hold that

pursuant to the “owner exemption” of the Veterinary Licensing Act, the TBVME

has no authority over Dr. Jefferson’s treatment and care of the animals owned by

her nonprofit San Antonio Pets Alive and thus the agency’s attempt to prosecute

Dr. Jefferson for her care of SAPA’s animals is ultra vires and unlawful. See Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

       The “owner exemption” to the Veterinary Licensing Act states that the Act

“does not apply to . . . the treatment or care of an animal in any manner by the

owner of the animal, an employee of the owner, or a designated caretaker of the

animal, unless the ownership, employment, or designation is established with the

intent to violate [the Act].” TEX. OCC. CODE § 801.004(1). The Board conceded at

trial (and in its “Allegations,” 1.CR.117) that San Antonio Pets Alive owned the


2
  The agency’s ultra vires conduct has also already injured Dr. Jefferson and San Antonio Pets
Alive. As Dr. Jefferson explained at trial, following the agency’s unlawful proceedings against
her, one of SAPA’s veterinarians resigned from the organization, and SAPA has been unable to
attract another veterinarian to work on behalf of the shelter. 2.RR.163.
                                              17
animals at issue, 2.RR.41-42, leaving two merits questions:         (1) whether Dr.

Jefferson’s provision of care to SAPA’s animals constituted “the treatment or care

of an animal in any manner by the owner of the animal, an employee of the owner,

or a designated caretaker”; and (2) whether SAPA’s ownership of the animals or

Dr. Jefferson’s role at SAPA was “established with the intent to violate” the Act.

Dr. Jefferson explained in her opening brief that—as a matter of law—Dr.

Jefferson’s care of SAPA’s animals was by the owner, employee of the owner, or

designated caretaker of the animals. See Jefferson Appellant’s Br. at 45-49. Dr.

Jefferson also explained in her opening brief that the evidence was uncontroverted

and conclusive—and thus demonstrated as a matter of law—that Dr. Jefferson and

SAPA did not intend to violate the Veterinary Licensing Act when they established

ownership of the animals and Dr. Jefferson’s role with the organization. See id. at

50-57. Dr. Jefferson and SAPA’s sole intent was to save shelter animals’ lives. Id.

      In its Appellees’ Brief, the TBVME elected not to contest that SAPA owned

the animals or that Dr. Jefferson’s treatment of SAPA’s animals was by the owner,

employee of the owner, or designated caretaker of the animals. The TBVME’s

sole contest of the merits of Dr. Jefferson’s declaratory-relief claim in the entirety

of its Appellees’ Brief is found in two sentences of a single footnote in its brief.

According to the TBVME, “the evidence at trial was not ‘uncontroverted’ on the

issue of whether Dr. Jefferson is exempt. The Board presented documentary

evidence at trial which it believed demonstrated that Dr. Jefferson did in fact
                                         18
intend to evade the Act.” See TBVME Appellees’ Br. at 19 n.3 (citing 1.RR.114,

170, 198). That’s it. No analysis, no briefing, no authority; just a reference to

three pages. That is not an adequately presented appellate argument and it is

therefore waived.      See Hebert Acquisitions, LLC v. Tremur Consulting

Contractors, Inc., No. 03-09-00385-CV, 2011 WL 350466, at *12 n.13 (Tex.

App.—Austin Feb. 4, 2011, no pet.) (mem. op.). In any event, the three pages

referenced by the TBVME do not create a fact issue that would prevent this Court

from recognizing as a matter of law that Dr. Jefferson did not intend to violate the

Veterinary Licensing Act. In fact, the subject of Dr. Jefferson’s intent is not even

mentioned on the referenced pages. 2.RR.114, 170, 198.

      Finally, the agency asserts that regardless of whether Dr. Jefferson’s conduct

fell under the “owner exemption,” the Court should hold that its prosecution of Dr.

Jefferson for conduct over which the agency has no authority was not ultra vires

because the acts of the TBVME and its executive director Oria are “discretionary”

in nature and thus not subject to an ultra vires claim. See TBMVE Appellees’ Br.

at 19-23. Here again, the agency’s position defies logic. Dr. Jefferson has not

requested a declaration that the agency has no authority to investigate complaints

or to discipline veterinarians in general. Instead, Dr. Jefferson has requested a

declaration that her care and treatment of SAPA’s animals falls within the “owner

exemption” of the Veterinary Licensing Act and, therefore, that the TBVME’s and

Oria’s proceedings against her regarding her care and treatment of SAPA’s
                                        19
animals exceed the agency’s statutory authority and are therefore unlawful and

ultra vires. See Jefferson Appellant’s Br. at 44-52. Those are different questions

than the strawman argument that the agency presents, and it is undisputable that a

government agency does not have discretion to act beyond its statutory authority.

See Tex. Student Hous. Auth., 2015 WL 1870013, at *6. Because Dr. Jefferson

proved as a matter of law at the trial court’s joint trial and plea hearing that her

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

TBVME’s authority, this Court should and is empowered to so hold. See id.

Accordingly, Dr. Jefferson respectfully requests that this Court declare the

agency’s proceedings against her ultra vires and enjoin the agency from further

prosecuting Dr. Jefferson for conduct falling outside its expressly limited statutory

authority.

IV.   THE TBVME’S ILLEGAL PROSECUTION OF DR. JEFFERSON ALSO MERITS
      MANDAMUS RELIEF.

      Dr. Jefferson’s final argument on appeal is that the trial court erred by

denying her request for mandamus relief to stop the TBVME’s illegal and ultra

vires proceedings against her. See Jefferson Appellant’s Br. at 53-57. As Dr.

Jefferson’s opening brief explains, mandamus relief is available both to compel a

government official “to perform a ministerial act,” Janek v. Harlingen Family

Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.—Austin 2014, no pet.), and to

protect a person “from illegal or unauthorized” acts of government officials sued

                                         20
“in their official capacity,” Hamilton v. Washington, No. 03-11-00594-CV, 2014

WL 7458988, at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.). Dr.

Jefferson demonstrated both. See Jefferson Appellant’s Br. at 56-57.

      In its Appellees’ Brief, the TBVME responds that the Veterinary Licensing

Act does not “‘clearly spell out’ any requirement that the Board ignore a complaint

when a vet simply claims to be exempt.” See TBVME Appellees’ Br. at 29

(emphasis original). Again, the agency misses the point. Dr. Jefferson has never

argued that the TBVME must “ignore a complaint when a vet simply claims to be

exempt.” Id. To the contrary, Dr. Jefferson’s argument is that the TBVME has no

authority to prosecute her (or anyone else, for that matter) for the care and

treatment of an animal falling under the “owner exemption” to the agency’s

authority. See Jefferson Appellant’s Br. at 44-52, 53-57. That exemption is

“clearly spelled out.” See TEX. OCC. CODE § 801.004. Moreover, as this Court has

made clear, mandamus is proper to prevent government officials from committing

“illegal or unauthorized acts.” Hamilton, 2014 WL 7458988, at *5. Because Oria

has no discretion to act outside the agency’s statutory authority, she has no choice

but to drop the claims against Dr. Jefferson.

      Finally, the TBVME asserts that the benefits to mandamus are outweighed

by the detriments in this case because stopping the agency from acting outside its

authority “would . . . negatively impact[] its ability to protect the public,” and if the

Court were to constrain it to its statutory authority, “those entire statutory schemes
                                           21
would be turned on their head.” See TBMVE Appellees’ Br. at 31. This too is

wrong. The agency has no authority, permission, policy directive, responsibility,

or ability to act outside its statutory authority, and constraining it to its statutory

authority would give effect to—not contravene—legislative intent. And as this

Court has already said, an agency’s claim of impotence should it be required to

obey the law is of no import. The question is a simple one: is the TBVME’s

prosecution of Dr. Jefferson for her care and treatment of SAPA’s animals ultra

vires pursuant to the “owner exemption”? As a matter of law, the answer is “yes.”

This Court should therefore reverse the trial court’s denial of mandamus relief and

issue such relief barring the agency from further violating Texas law.

                                      PRAYER

      For these reasons, Dr. Jefferson respectfully requests that this Court reverse

that part of the trial court’s judgment (1) dismissing Dr. Jefferson’s UDJA claims

for failure to exhaust administrative remedies; (2) denying (or dismissing) Dr.

Jefferson’s requested mandamus relief; and (3) issuing ambiguous, unrequested,

and improper declaratory relief regarding “other laws.” Dr. Jefferson requests that

the Court render the judgment that the trial court should have rendered, including

holding that the TBVME and Oria’s disciplinary proceedings against Dr. Jefferson

are illegal and ultra vires, and issuing injunctive and mandamus relief to stop Oria

and the agency from unlawfully disciplining Dr. Jefferson for her care and

treatment of animals owned by San Antonio Pets Alive.              Alternatively, Dr.
                                          22
Jefferson requests that the Court reverse the trial court’s judgment and remand the

case to the trial court for consideration of the merits of Dr. Jefferson’s UDJA and

mandamus claims. Finally, Dr. Jefferson requests that the Court strike or modify

the trial court’s ambiguous declaration regarding “other laws,” and that the Court

issue any such other relief to which she may be entitled in equity or law.

                                       Respectfully submitted,


                                       /s/ Ryan Clinton
                                       Ryan Clinton
                                       State Bar No. 24027934
                                       rdclinton@dgclaw.com
                                       DAVIS, GERALD & CREMER, P.C.
                                       111 Congress Ave., Suite 2800
                                       Austin, Texas 78701
                                       Ph: (512) 537-9938
                                       Fax: (432) 687-1735

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




                                         23
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing was sent this

22nd day of October, 2015 as follows:


      VIA EFSP & EMAIL
      Mr. Andrew Lutostanski
      andrew.lutostanski@texasattorneygeneral.gov
      Mr. Ted A. Ross
      ted.ross@texasattorneygeneral.gov
      Office of the Attorney General of Texas
      Administrative Law Division
      P. O. Box 12548
      Austin, TX 78711


                                         /s/ Ryan Clinton
                                        Ryan Clinton




                                         24
                        CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the word processing software used to
produce this document (Microsoft Word), I certify that the number of words in this
brief (excluding the identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, signature, proof of service, certification, certificate of
compliance, and appendix) is 5,576 and that the text of the document is in 14-pt.
font. The text of all footnotes is 12-pt.font.



                                      /s/ Ryan Clinton
                                      Ryan Clinton




                                        25
