                                                                                    ACCEPTED
                                                                                03-15-00262-CV
                                                                                        7892586
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                          11/18/2015 4:14:22 PM
                       No. 03-15-00262-CV                                     JEFFREY D. KYLE
                                                                                         CLERK


                              In the
                      Third Court of Appeals                 RECEIVED IN
                                                       3rd COURT OF APPEALS
                             Of Texas                       AUSTIN, TEXAS
                                                       11/18/2015 4:14:22 PM
                  TEXAS ASSOCIATION OF                     JEFFREY D. KYLE
                                                                Clerk
            ACUPUNCTURE AND ORIENTAL MEDICINE
                                 Appellants,
                           V.

         TEXAS BOARD OF CHIROPRACTIC EXAMINERS
      AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR
                   IN HER OFFICIAL CAPACITY,
                                       Appellees
                      st
On Appeal from the 261 Judicial District Court of Travis County, Texas
                     Cause No. D-1-GN 12-00107

         TEXAS CHIROPRACTIC ASSOCIATION (TCA) AND
         AMERICAN CHIROPRACTIC ASSOCIATION (ACA)
        AMICUS CURIAE BRIEF IN SUPPORT OF APPELLEES



                                     Respectfully submitted,

                                     Jason Ray
                                     Bar No. 24000511
                                     RIGGS & RAY, P.C.
                                     506 West 14th Street, Suite A
                                     Austin, TX 78701
                                     512 457-9806 Phone
                                     512 457-9066 FAX
                                     jray@r-alaw.com
                                        TABLE OF CONTENTS


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

TABLE OF AUTHORITIES ...................................................................... iii

DISCLOSURE OF INTEREST ...................................................................... iv

SUMMARY OF ARGUMENT .................................................................... 1

ARGUMENT AND AUTHORITIES .......................................................... 2

PRAYER          .................................................................................................... 7

CERTIFICATE OF COMPLIANCE ......................................................... 8

CERTIFICATE OF SERVICE ................................................................... 8




Amicus in Support of Appellee TBCE
Page ii
                                      TABLE OF AUTHORITIES

Cases

Entergy Gulf States, Inc. v. Summers,
      282 S.W.3d 433, (Tex. 2009) .......................................................................... 3

RepublicBank Dallas, N.A. v. Interkal, Inc.,
     691 S.W.2d 605 (Tex. 1985) ........................................................................... 4

St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997) .................. 4

Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920) ....................................... 4

Texas Bd. of Chiropractic Examiners v. Texas Med. Ass'n,
      375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied) ................................ 3

Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Examiners,
      254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) ............................... 2


STATUTES

TEX. OCC. CODE § 205.001(2) ................................................................................... 4

TEX. OCC. CODE ch. 155 ............................................................................................ 3

TEX. OCC. CODE § 165.003 ........................................................................................ 6

TEX. OCC. CODE § 165.152 ........................................................................................ 6

TEX. OCC. CODE § 165.153 ........................................................................................ 6


SECONDARY SOURCES

Chiropractic Board Rule 78.14(a) .............................................................................. 5




Amicus in Support of Appellee TBCE
Page iii
                         DISCLOSURE OF INTEREST

      On behalf of Amicus Curiae, I certify that no persons other than the Texas

Chiropractic Association and the American Chiropractic Association have made

any monetary contribution to the preparation or submission of this Amicus brief.




Amicus in Support of Appellee TBCE
Page iv
                          SUMMARY OF ARGUMENT

      This firm represents the Texas Chiropractic Association (TCA) and the

American Chiropractic Association (ACA) regarding their respective members’

interest in this appeal. TCA is the state’s largest chiropractic association,

representing Texas’ 5,300 licensed doctors of chiropractic. ACA is the nation’s

largest chiropractic association, representing licensed doctors of chiropractic and

students enrolled in chiropractic colleges, including over 1,000 Texas members.

Many of these doctors of chiropractic regularly utilize chiropractic acupuncture as

part of improving the biomechanics of the musculoskeletal system. Through this

amicus brief, TCA and ACA urge this Court to leave the scope of chiropractic in

Texas—a scope which has historically included limited acupuncture—unchanged,

by affirming the trial court.




Amicus in Support of Appellee TBCE
Page 1
                       ARGUMENT AND AUTHORITIES

      All TAAOM-aligned arguments suffer from the same two errors:

      1) they seek to define acupuncture and chiropractic as unique and non-

         duplicative, when it is undisputed that the scope of chiropractic overlaps

         with other medical disciplines, and

      2) they refuse to acknowledge that acupuncture can fit within the

         therapeutic methods permitted by chiropractic, so long as the acupuncture

         is used to treat a condition that improves a subluxation or biomechanical

         condition of the musculoskeletal system.

      Neither the TAAOM’s brief nor the five previously-filed amicus briefs in

this appeal accurately recite the chiropractic scope defined by the Texas

Legislature. Specifically, all TAAOM-aligned briefs ignore the fact that the statute

defines the chiropractic scope to include any nonsurgical, nonincisive procedure

that improves a subluxation complex or the biomechanics of the musculoskeletal

system. The phrase “nonsurgical, nonincisive procedure” is quite broad. It

necessarily includes treatment that is immediately recognizable as a stereotypical

chiropractic adjustment, but the phrase also captures therapeutic approaches that

are ordinarily found in other disciplines of medicine.

      The practice of medicine contains many disciplines whose scopes

necessarily overlap. Podiatrists and orthopedic surgeons often perform the exact

same surgeries, and this court has addressed that turf war. Texas Orthopaedic Ass'n

Amicus in Support of Appellee TBCE
Page 2
v. Texas State Bd. of Podiatric Med. Examiners, 254 S.W.3d 714, 717 (Tex.

App.—Austin 2008, pet. denied) (acknowledging overlap of the occupations in

treating feet). Chiropractors and medical doctors have a scope of practice that

allows both professions to diagnose and treat diseases that affect the

musculoskeletal system. Texas Bd. of Chiropractic Examiners v. Texas Med. Ass'n,

375 S.W.3d 464, 493 (Tex. App.—Austin 2012, pet. denied). Like chiropractors,

medical doctors and osteopathic physicians may practice acupuncture. TEX. OCC.

CODE ch. 155. It is simply wishful thinking for the TAAOM to claim that

acupuncture is a distinct specialty that can only be practiced by licensed

acupuncturists.

      The TAAOM’s brief speaks to the nature of needles, whether acupuncture or

otherwise; all of its arguments on this issue are unnecessary. This court need not

question whether acupuncture needles violate the “nonsurgical, nonincisive”

constraints for chiropractic treatments.     Simply put, acupuncture needles are

nonincisive because the Texas Legislature says so. “Ascertaining the meaning of a

statutory text (or any text for that matter) begins with the language used, and if that

language is plain enough, absent some obvious error or an absurd result, that is

where the task ends. It matters not what someone thinks the text may have meant

to say or now hopes or wishes it said. To look beyond the plain language risks

usurping authorship in the name of interpretation.” Entergy Gulf States, Inc. v.



Amicus in Support of Appellee TBCE
Page 3
Summers, 282 S.W.3d 433, 445 (Tex. 2009) (J. Hecht, concurring)1. It would be

contrary to statute for this Court to determine that regardless of the express

language of Acupuncture Act § 205.001(2), the use of acupuncture needles in the

hands of a chiropractor somehow renders the treatment “incisive.” It would be

equally imprudent for this Court to conclude that the use of a nonincisive

procedure administered by a chiropractor to address a biomechanical problem in

the musculoskeletal system of a chiropractic patient is somehow outside the scope

of practice simply because that procedure is typically administered by a separately

licensed occupation. Common sense tells us that all needles are, by their nature,

incisive, but the Texas Legislature has expressly carved out an exception for

acupuncture needles. That means “acupuncture needles” are not needles when used

to perform acupuncture. This redefinition of acupuncture needles essentially

removes the only impediment to their use by chiropractors; thus, acupuncture

needles are simply another tool that may be used in chiropractic.




1
  Justice Hecht’s concurrence highlights the Texas Supreme Court’s storied hesitance to depart
from the plain language of a statute, as far back as the 1920 case of Simmons v. Arnim, 110 Tex.
309, 220 S.W. 66, 70 (1920): “Courts must take statutes as they find them. More than that, they
should be willing to take them as they find them. They should search out carefully the
intendment of a statute, giving full effect to all of its terms. But they must find its intent in its
language, and not elsewhere. They are not the law-making body. They are not responsible for
omissions in legislation. They are responsible for a true and fair interpretation of the written law.
It must be an interpretation which expresses only the will of the makers of the law, not forced
nor strained, but simply such as the words of the law in their plain sense fairly sanction and will
clearly sustain.” quoted in St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.
1997), RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985).


Amicus in Support of Appellee TBCE
Page 4
      TCA and ACA disagree with TAAOM’s argument that “acupuncture cannot

be included within the statutory scope of chiropractic because [TAAOM believes]

acupuncture is not limited to treatment of the musculoskeletal system…” TAAOM

brief, at page 26. Chiropractic acupuncture is a subset of full-scope Acupuncture-

Board regulated acupuncture. Chiropractic Board Rule 78.14(a) recognizes that

any “therapeutic modalities” regarding acupuncture “must comply with the

chiropractic scope of practice.” Chiropractors constrain their advice and treatment,

much of which comes from related and overlapping health care professions, to

their scope of practice every day. Just because a chiropractor gives dietary advice

to a patient with muscular pain as a result of a neuropathy does not mean the

chiropractor is infringing on the area regulated by the Texas State Board of

Examiners of Dietitians.       Advice and treatment to correct musculoskeletal

weaknesses do not implicate an athletic trainer license, a massage therapist license

or any license issued by the Executive Council of Physical Therapy Examiners.

And acupuncture to correct a musculoskeletal problem does not improperly

infringe on full-scope acupuncture, which can be used to address everything from

asthma, allergies and other immune disorders, to hormone imbalances, digestive

issues, and high blood pressure, all of which is outside chiropractic scope.

      Finally, it bears mentioning that Texas chiropractors would face a disastrous

avalanche of tort cases if this Court accepted the TAAOM’s argument that

chiropractic acupuncture (e.g. to correct musculoskeletal condition) is outside the

Amicus in Support of Appellee TBCE
Page 5
scope of chiropractic. Thousands of chiropractors who have properly utilized

acupuncture for years, and who have done so pursuant to the State Board’s

direction and rules, would find themselves facing civil tort claims, administrative

claims, and criminal charges for the unlicensed practice of medicine. TEX. OCC.

CODE § 165.003 (administrative penalty of up to $5000 per violation for unlicensed

practice of medicine); § 165.152, .153 (unlicensed practice of medicine is a

felony).

The chiropractic amicus briefs ignore the statutory definition of chiropractic
and acupuncture.

      The amicus brief from the Chiropractic Society of Texas argues that

acupuncture uses “needles to treat patients, with no regard for a vertebral

subluxation, thereby not qualifying under [the Chiropractic Society of Texas’]

definition of subluxation.” CST brief, page 2. That position ignores two important

facts. First, the statutory definition of chiropractic in Texas is not limited to just

subluxations, much less vertebral (that is, spinal) subluxation. Texas chiropractors

can treat any number of subluxations—more commonly known as dislocations,

fixations, and malpositions—anywhere in the body, as well as any condition that

affects the general biomechanics of the musculoskeletal system. Second, the

Chiropractic Society of Texas’ amicus brief ignores the reality that acupuncture is

a type of physical manipulation that can improve the biomechanics of the

musculoskeletal system. Simply put, the Chiropractic Society of Texas’ argument


Amicus in Support of Appellee TBCE
Page 6
is rooted in a characterization of chiropractic that is much narrower than the

statutory definition.

       The International Federation of Chiropractors and Organizations’ amicus

brief is similarly postured, because that organization views the chiropractic scope

to be limited to “the detection and correction of vertebral subluxation.” IFCO brief,

page 1. That definition is simply much narrower than the scope of chiropractic in

Texas.

       In closing, TCA and ACA believe the plain language of both Acupuncture

Act and the Chiropractic Act dictates an obvious and reasonable resolution of this

appeal. Given that acupuncture needles are not incisive, chiropractors may utilize

them to perform treatment that would otherwise be within the scope of

chiropractic.

                                     PRAYER

       For these reasons, the Texas Chiropractic Association and the American

Chiropractic Association, as Amicus Curiae, urge this Court to uphold the decision

of the trial court.

                                 Respectfully submitted,


                                 ________________________
                                 Jason Ray
                                 on behalf of the Texas Chiropractic Association
                                 and the American Chiropractic Association



Amicus in Support of Appellee TBCE
Page 7
                      CERTIFICATE OF COMPLIANCE

        I certify on behalf of Amicus Curiae, that this Amicus contains 1466 words

according to the word count feature of the Microsoft Word software used to

prepare this Amicus brief.

                                                   _______________________
                                                   Jason Ray

                          CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing Amicus brief has

been served to all attorneys of record as listed below via e-mail on November 18,

2015:

Joe H. Thrash                              Craig T. Enoch
Assistant Attorney General                 Enoch Kever, PLLC
Administrative Law Division                600 Congress Ave., Ste. 2800
P. O. Box 12548                            Austin, Texas 78701
Austin, Texas 78711                        cenoch@enochkever.com
Joe.Thrash@texasattorneygeneral.gov



                                                   ________________________
                                                   Jason Ray




Amicus in Support of Appellee TBCE
Page 8
