      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00151-CV



       Texas Board of Chiropractic Examiners; and Yvette Yarbrough, Successor to
                      Glenn Parker, Executive Director, Appellants

                                                   v.

                               Texas Medical Association, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
       NO. D-1-GN-11-000326, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The Texas Medical Association (“TMA”) sued the Texas Board of Chiropractic

Examiners (“the Board”) and its executive director seeking a declaration that portions of the Board’s

administrative rule defining the scope of chiropractic practice were invalid. See 22 Tex. Admin.

Code § 75.17 (2011) (Tex. Bd. of Chiropractic Exam’rs, Scope of Practice). The rule provisions at

issue purport to authorize certain of the Board’s licensees to perform “Technological Instrumented

Vestibular-Ocular-Nystagmus Testing.” See id. §§ 75.17(c)(2)(F), (c)(3)(C). On cross-motions for

summary judgment, the district court rendered judgment invalidating those portions of the Board’s

administrative rule. On appeal the Board contends that, as a matter of law, the rule is valid or, in the

alternative, the existence of fact issues precluded summary judgment. We will reverse the summary

judgment and remand the cause to the trial court.
                                         BACKGROUND

               The practice of medicine in Texas is regulated by the Texas Medical Board, and the

legislature has mandated that a person cannot lawfully “practice medicine” in the state without a

Texas Medical Board-issued license. See Tex. Occ. Code Ann. §§ 151.001-.056 (West 2012)

(Medical Practice Act). The Medical Practice Act defines “practicing medicine” as “the diagnosis,

treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury

by any system or method, or the attempt to effect cures of those conditions” by a person who either

“directly or indirectly charges money or other compensation for those services” or publicly professes

to be a physician or surgeon. See id. § 151.002(a)(13). Carved out of the definition of “practicing

medicine” are a variety of other health-related fields, practitioners of which are subject to their own

regulations but are exempted from the Medical Practice Act’s education, training, and licensing

standards and from the Texas Medical Board’s regulatory authority. See id. § 151.052. Among the

exempted fields is “a licensed chiropractor engaged strictly in the practice of chiropractic as defined

by law.” See id. § 151.052(a)(3). Texas Occupations Code chapter 201 regulates the practice of

chiropractic. See id. §§ 201.001-.606 (West 2012). This chapter defines the permissible scope of

chiropractic practice, imposes educational and licensing requirements on chiropractors, and delegates

regulatory authority over the chiropractic field to the Board.

               Occupations code section 201.002(b) provides:


       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;



                                                  2
       (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.


Id. § 201.002(b). In 2005 the Texas Legislature mandated that the Board “adopt rules clarifying

what activities are included within the scope of the practice of chiropractic and what activities are

outside of that scope,” including “clearly specify[ing] the procedures that chiropractors

may perform” and “any equipment and the use of that equipment that is prohibited.” See Act of

May 27, 2005, 79th Leg., R.S., ch. 1020, § 8, 2005 Tex. Gen. Laws 3464, 3466 (codified

at Tex. Occ. Code Ann. §§ 201.1525-.1526).1 In response, the Board promulgated a “Scope

of Practice” rule that, among other things, authorizes certain chiropractors to perform

“Technological Instrumented Vestibular-Ocular-Nystagmus Testing” (VONT). See 22 Tex. Admin.

Code § 75.17 (c)(2)(F), (c)(3)(C).2

               In January 2011 the TMA sued the Board seeking a declaration that the rule

permitting VONT is invalid because it expands the scope of chiropractic practice beyond its



       1
          For a comprehensive account of the history of legislation related to the regulation of
chiropractors in Texas, see this Court’s opinion in Texas Board of Chiropractic Examiners v. Texas
Medical Association, 375 S.W.3d 464 (Tex. App.—Austin 2012, pet. filed).
       2
         Section 75.17(c)(2)(F) provides: “To evaluate and examine individual patients or patient
populations, licensees of the board are authorized to use other forms of testing and measurement.”
22 Tex. Admin. Code § 75.17(c)(2)(F) (2011) (Tex. Bd. of Chiropractic Exam’rs, Scope of Practice).
Section 75.17(c)(3)(C) provides that one of those other forms of testing and measurement is
“Technological Instrumented Vestibular-Ocular-Nystagmus Testing.” Id. § 75.17(c)(3)(C).

                                                  3
statutory limits. See, e.g., Texas Orthopaedic Ass’n v. Texas State Bd. of Podiatric Med. Exam’rs,

254 S.W.3d 714, 722 (Tex. App.—Austin 2008, pet. denied) (rule that expanded practice of

podiatry beyond statutory scope was invalid); Office of Pub. Util. Counsel v. Public Util. Comm’n,

131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied) (agency’s rules must comport with

agency’s authorizing statute). The TMA also asserted that the rule was invalid because it

unlawfully authorizes chiropractors to practice medicine in violation of the Medical Practice Act.

Thereafter, the TMA moved for summary judgment on these grounds. The Board filed its own

summary-judgment motion joining issue with the TMA’s validity challenge. The district court

granted the TMA’s motion for summary judgment, denied the Board’s motion, and declared that

rule 75.17(c)(3)(C) was invalid and void in its entirety and that rule 75.17(c)(2)(F) was invalid and

void to the extent it purported to permit VONT. This appeal followed.


                                          DISCUSSION

               In two issues the Board challenges the trial court’s order invalidating the rules

permitting chiropractors to perform VONT. The Board asserts that (1) the trial court erred in

denying its motion for summary judgment and granting the TMA’s motion and, in the alternative,

(2) fact issues exist that preclude the court from granting the TMA’s summary-judgment motion.

We review the district court’s summary judgment rulings de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when the summary-judgment

evidence shows that there are no disputed issues of material fact and that the movant is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c). When reviewing a summary judgment, we

                                                 4
take as true all evidence favorable to the nonmovant and indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Valence Operating Co., 164 S.W.3d at 661;

Providence Life & Accident Ins. Co., 128 S.W.3d at 215. When parties file cross-motions for

summary judgment on overlapping issues and the trial court grants one motion and denies the other,

we review the summary-judgment evidence supporting both motions, determine all questions

presented and preserved, and “render the judgment that the trial court should have rendered.” See

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

               In the present case, the parties’ respective entitlement to summary judgment turns

principally on whether the Board had the statutory authority to adopt a rule permitting chiropractors

to perform VONT. If it did not, the rule is invalid. To establish a rule’s facial invalidity, the

challenger must show that the rule (1) contravenes specific statutory language; (2) is counter to the

statute’s general objectives; or (3) imposes additional burdens, conditions, or restrictions in

excess of or inconsistent with the relevant statutory provisions. See Office of Pub. Util. Counsel,

131 S.W.3d at 321. In its summary-judgment motion, the TMA asserted that the challenged rule was

invalid because it contravenes specific statutory language, specifically the definition of chiropractic

practice contained in occupations code section 201.002(b).            According to the TMA, rule

75.17(c)(3)(C) impermissibly expands chiropractic practice beyond the scope of section 201.002(b)

and into the practice of medicine.

               To be entitled to summary judgment, the TMA was required to conclusively establish

that VONT falls outside the statutory definition of the practice of chiropractic contained in

occupations code section 201.002(b). This is ultimately a mixed question of law and fact, turning



                                                  5
on the application of the occupations code to the factual record. See Mega Child Care, Inc. v. Texas

Dep’t of Protective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App.—Houston [14th Dist.]

2000) (“An issue involves a mixed question of law and fact when a standard or measure has been

fixed by law and the question is whether the person or conduct measures up to that standard.”), aff’d,

145 S.W.3d 170 (Tex. 2004). If material fact issues exist with regard to whether VONT is or is not

within the scope of chiropractic, summary judgment is not proper.

                Statutory construction presents a question of law that we review de novo. See First

Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex. 2008). Our primary objective in construing

statutes is to give effect to the legislature’s intent. Galbraith Eng’g Consultants, Inc. v. Pochucha,

290 S.W.3d 863, 867 (Tex. 2009). The plain meaning of the text is the best expression of legislative

intent unless a different meaning is supplied by legislative definition or is apparent from the context,

or unless the plain meaning would lead to absurd or nonsensical results that the legislature could not

have intended. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008); see Tex. Gov’t

Code Ann. § 311.011 (West 2005) (“Words and phrases shall be read in context and construed

according to the rules of grammar and common usage.”). We look to the entire act in determining

the legislature’s intent with respect to a specific provision. Upjohn Co. v. Rylander, 38 S.W.3d 600,

607 (Tex. App.—Austin 2000, pet. denied). When a statute is ambiguous, we are required to give

“serious consideration” to the construction of the statute by the administrative agency charged

with its enforcement, Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water,

336 S.W.3d 619, 624 (Tex. 2011), and uphold the agency’s interpretation if it is reasonable, First

Am. Title Ins. Co., 258 S.W.3d at 632 (citing Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823



                                                   6
(Tex. 1993)). We do not defer to an agency interpretation when a statute is unambiguous. See Texas

Citizens, 336 S.W.3d at 624 & n.6. We also “do not defer to administrative interpretation in regard

to questions which do not lie within administrative expertise, or [which] deal with a nontechnical

question of law.” Rylander v. Fisher Controls Int’l Inc., 45 S.W.3d 291, 302 (Tex. App.—Austin

2001, no pet.) (quoting 2B Singer, Sutherland Statutory Construction § 40.04, at 23-24 (6th ed.

2000)). Bearing in mind this standard of review, we consider whether the TMA conclusively

established that VONT falls outside the practice of chiropractic as defined in section 201.002(b),

specifically whether it does not, as a matter of law, constitute the use of “objective or subjective

means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal

system of the human body.” See Tex. Occ. Code Ann. § 201.002(b)(1).


What is VONT?

               The rule at issue purports to permit chiropractors to perform “Technological

Instrumented Vestibular-Ocular Nystagmus Testing.” That procedure, however, is nowhere defined

in the rules. In its petition, the TMA alleged that “Vestibular-Ocular-Nystagmus Testing is used

solely to diagnose a problem of the brain or inner ear.” In its motion for summary judgment,

the TMA stated that “[i]t generally is conceded that the phrase ‘technological instrumented

vestibular-ocular-nystagmus testing’ is one created by [the Board] and is not otherwise used in either

the chiropractic or medical professions,” but argued that VONT is a “test whose purpose is to

diagnose a problem of the brain, inner ears or eyes.” The Board, however, asserted in its answer and

motion for summary judgment that “VONT is a group of clinical laboratory tests that are used to

evaluate posture and/or joint positional controls relating to involuntary eye movements,” and that

                                                  7
it can be used to “analyze and evaluate balance disorders associated with the biomechanics

of the musculoskeletal system.” The TMA asserts that VONT “generally is of two types:

Electronystagmography (ENG) and Videonystagmography (VNG).” It claims that both of these tests

are “a group of eye-movement tests that look for signs of vestibular dysfunction or neurological

problems by measuring nystagmus.” The Board, however, maintains that VONT “can include ENG,

VNG, balance testing, and caloric testing.” (Emphasis added.) According to the Board, these are

“clinical tests that are used to evaluate balance, posture, and/or joint positional controls through

evaluation of involuntary eye movements.” While the parties discuss various procedures they

believe to be included in the definition of VONT and state their positions regarding what those

procedures are designed to reveal, there is no consensus.

               The TMA submitted summary-judgment evidence to support its position that VONT

is a test “whose purpose is to diagnose a problem of the brain, inner ears or eyes.” But the TMA’s

summary-judgment evidence also included the affidavit of chiropractor Frederick C. Carrick, D.C.,

who averred that an ocular motor test “can reveal either the presence of disease or the presence of

a muscular condition [or] a skeletal condition.” According to Carrick, information gleaned from

VONT testing would inform the manner in which a chiropractor chose to treat musculoskeletal

problems such as “a low back problem” or a knee or hip problem. He stated that such information

is “utilized in rehabilitation effects with musculoskeletal disorders.” In its response, the Board

submitted evidence that VONT is used to reveal things about the spine and the motor aspects of

the eyes.




                                                 8
               The principal impediment to summary judgment in this case is the existence of

several issues of material fact regarding the meaning and scope of the term VONT: what procedures

are covered by the term, what are the purposes for performing those procedures, and what do those

procedures reveal about the patient, specifically about the biomechanical condition of the spine or

musculoskeletal system? While the Board cites to its own “findings” contained in the Texas Register

that VONT is within the scope of chiropractic practice because it “can be used as part of chiropractic

treatment to analyze and evaluate balance disorders associated with the biomechanics of the

musculoskeletal system,” this is no more than a premise masquerading as a conclusion. The

existence of disputes about what the term VONT refers to and what it reveals about a patient are fatal

to summary disposition of this mixed question of law and fact—i.e., whether, as a matter of law,

VONT is or is not within the scope of chiropractic as defined by statute.

               The TMA and the Board have nonetheless advanced in the trial court and on appeal

several arguments to support their conflicting positions on whether VONT—whatever it entails—is

within the scope of chiropractic as that term is defined in occupations code section 201.002(b).

               The TMA first contends that because VONT is performed on the eyes and inner ears

of a patient, neither of which is part of the spine or musculoskeletal system, the rule “ignores the

statutory limitation on what a chiropractor can do by extending a chiropractor’s scope of practice to

the inner ears, eyes and brain.” The TMA argues that because Texas law limits the practice of

chiropractic to the spine and the musculoskeletal system, there is no language in the Chiropractic Act

that authorizes a chiropractor to “analyze, examine or evaluate” the brain, eyes or inner ears. The

TMA maintains that chiropractors are not permitted to analyze, examine, or evaluate the eyes or



                                                  9
inner ear and therefore may not perform VONT. We do not agree that the statute so limits the scope

of chiropractic. Rather, the statute permits chiropractors to use objective or subjective means to

analyze and evaluate the biomechanical condition of the spine and musculoskeletal system. See Occ.

Code § 201.002(b)(1). This means that so long as the objective or subjective means used are capable

of revealing a significant fact about the biomechanical condition of the musculoskeletal system or

spine, the test itself need not necessarily be a direct examination of the musculoskeletal system or

spine. This interpretation is supported by section 201.002(a)(3) of the Chiropractic Act, which

expressly excludes from prohibited incisive or surgical procedures “the use of a needle for the

purpose of drawing blood for diagnostic testing.” See id. § 201.002(a)(3). This provision permitting

chiropractors to draw and test a patient’s blood reveals that the legislature did not intend to narrowly

restrict the purview of a chiropractic examination solely to the musculoskeletal system and spine

themselves. We hold that the statute does not prohibit a chiropractor from examining parts of the

body other than the spine and musculoskeletal system if such an examination will assist in analyzing

or evaluating the biomechanical condition of the spine or musculoskeletal system.

               The second ground on which the TMA moved for summary judgment was that VONT

is used to make a “differential diagnosis” of a patient’s medical condition. The TMA argues

that there is no statutory authority for chiropractors to diagnose diseases, an activity that

constitutes the practice of medicine. See id. § 151.002(a)(13) (“practicing medicine” means the

diagnosis, treatment, or offer to treat mental or physical disease or disorder). Whether chiropractors

may engage in differential diagnosis generally has previously been the subject of dispute in a

case before this Court. In Texas Board of Chiropractic Examiners v. Texas Medical Association,



                                                  10
375 S.W.3d 464 (Tex. App.—Austin 2012, pet. filed), the TMA argued that rendering a diagnosis

was reserved to the practice of medicine and certain other health-care professions and that, by

contrast, chiropractors were statutorily confined to analyzing, examining, or evaluating conditions.

Compare Occ. Code § 201.002(b)(1) (providing that one practices chiropractic if he or she “uses

objective or subjective means to analyze, examine or evaluate . . .”) with id. § 151.002(a)(13)

(“‘Practicing medicine’ means the diagnosis, treatment, or offer to treat . . . .”). This Court did not,

however, decide the question of whether section 201.002(b)(1) can fairly be read to permit

chiropractors to engage in differential diagnosis because we concluded that the argument was not

raised in that appeal and we therefore lacked jurisdiction to consider it. Texas Bd. of Chiropractic

Examiners, 375 S.W.3d at 492.3 We need not consider the issue in the present case either, because

regardless of whether chiropractors are prohibited from engaging in differential diagnosis, the TMA

failed to conclusively establish that VONT is used solely for diagnosing diseases and cannot

also be used to “analyze, examine, or evaluate the biomechanical condition of the spine and the

musculoskeletal system.” See Occ. Code § 201.002(b)(1). As stated above, the summary-judgment

evidence was conflicting on this very issue. Thus, neither of the two arguments advanced by the

TMA conclusively establishes that the rule at issue is void merely because it permits chiropractors

to perform VONT. We sustain the Board’s second appellate issue.

                We next consider whether, as the Board contends, the trial court should have rendered

summary judgment that the rule is valid. The Board asserted that VONT is within the scope of the




       3
          The opinion states “[w]e emphasize that we express no opinions [sic] regarding the merits”
of the argument.

                                                  11
practice of chiropractic because it meets the two-prong test the Board proposed in its motion for

summary judgment. According to the Board, we should hold that VONT is within the scope of

chiropractic practice because (1) it can reveal a diagnosis of conditions that may be treated within

the scope of chiropractic, and (2) it does not involve any procedure that a chiropractor is specifically

prohibited by law from performing. The Board contends that VONT is within the scope of

chiropractic because it is a test that reveals conditions that may be treated by chiropractic. One

example relied on by the Board for that proposition is that of a patient for whom some form of

VONT is used to determine that he suffers from benign paroxysmal positional vertigo (BPPV). The

Board submitted deposition testimony of chiropractor J. Brandon Brock, D.C., who stated that of

twenty patients on whom he has most recently performed VONT, fifteen “had benign paroxysmal

conditions that [he] personally treated and fixed within five or ten minutes.” The Board argues that

it is illogical to construe a statue to prevent a chiropractor from performing a test that would tell him

that the patient was an appropriate candidate for chiropractic treatment. The fallacy in this argument

is that it is evident from the TMA’s summary-judgment evidence that the procedure that corrects

BPPV, the “Epley maneuver,” is not necessarily within the scope of the “practice of chiropractic.”

The TMA submitted the following deposition testimony of James Kemper, M.D., explaining what

BPPV is and describing the Epley maneuver, a procedure frequently used to correct it:


        Benign paroxysmal positional vertigo, or what’s often called BPPV, is a specific
        disorder where some tiny little calcium carbonate crystals in our balance canals,
        called otoliths, break loose. . . . And these little particles are originally designed for
        static positions of the head. In other words, where I’m not moving my head, but I tilt
        my head upward and it’s remaining in that position, those little rocks are on the end
        of nerve endings and they respond to gravity and send a signal to my brain from [sic]
        my muscles and my eyes to respond in a proper fashion. If those [otoliths] break

                                                   12
        loose, they just fall, again, dependent on gravity. The most common place for that
        to happen is the horizontal semicircular canal. And when they fall in there, as long
        as the head is in a neutral position, or even if it moves in this fashion (indicating),
        there’s not a problem. But as soon as the patient lies down, there’s a very distinct
        rotary nystagmus. The eyes move and the patient experiences about 20 to 30 seconds
        of pretty intense vertigo, and it stops as long as they stay in that position. But as soon
        as they arise or they roll, their eyes spin around the other way and they feel it again.

        The treatment for [BPPV] . . . is you take the patient through a series of movements
        that sort of act like one of those little—those little marble things where you have to
        move the marbles through a canal. You lie the patient down in a series of positions
        where the head is down, and the otoliths roll down to the dependent portion, and then
        you bring them back this way, and then you bring them all the way over this way.
        They’re on a table the entire time. And then they tuck their chin and you sit them up,
        and what happens is they [the otoliths] roll out of the canal where they’re causing a
        problem into a different part of the balance organ called the utricle. In that area they
        no longer cause a problem, and the patient’s vertigo . . . is essentially cured.


The treatment described does not necessarily fit within the strict statutory description of the practice

of chiropractic. See Occ. Code § 201.002. It is not clear that the treatment, as described by Kemper,

is one that “improve[s] the subluxation complex[4] or the biomechanics of the musculoskeletal

system.” Id. § 201.002(b)(2) (including within scope of chiropractic “perform[ing] nonsurgical,

nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex

or the biomechanics of the musculoskeletal system”). Rather, the Epley maneuver involves placing

the patient’s head in a sequence of specific positions that cause loose otoliths that have collected in

one area of the inner ear canal to roll into a different area of the inner ear canal. While a chiropractor




        4
          The Board has defined “subluxation complex” as 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 body systems that may be
directly or indirectly affected by them.” 22 Tex. Admin. Code § 75.17(b)(7).

                                                   13
may perform the Epley maneuver, arguably a physical therapist or physician or any other adequately

trained person would be permitted to as well. In other words, the maneuver does not appear to be

uniquely chiropractic. Thus, the evidence does not conclusively demonstrate that the maneuver

“improve[s] the subluxation complex or the biomechanics of the musculoskeletal system.”5 The

same is true of the other referenced “chiropractic treatments” that may be used to treat other balance

disorders the Board claims can be identified using VONT. The Board refers to “muscle retraining”

and “gait training.” The record does not conclusively establish that either of these therapies

improves the subluxation complex or the biomechanics of the spine or musculoskeletal system.

Thus, the Board did not conclusively establish that VONT may be used to identify conditions that

are treated by procedures within the scope of the practice of chiropractic. Therefore, even were we

to accept the Board’s proposed test, summary judgment on that ground would not be warranted.

               Finally, the Board asserts that deference should be given to its conclusion that VONT

is within the scope of chiropractic. While we ordinarily give “serious consideration” to the

construction of a statute by the administrative agency charged with its enforcement, in this case we

are mindful of the overlap and interplay between the chiropractic and medical disciplines and their

respective regulatory schemes, which this Court has previously noted.            In Texas Board of

Chiropractic Examiners v. Texas Medical Association, we observed:




       5
         The Board asserts that the TMA has, in response to requests for admissions, admitted that
the Epley maneuver is within the scope of chiropractic. Whether it is or is not is a legal conclusion.
Parties may not be compelled to answer legal conclusions, Credit Car Ctr., Inc. v. Chambers,
969 S.W.2d 459, 464 (Tex. App.—El Paso 1998, no pet.), and such conclusions do not bind the
court. Fort Bend Cent. Appraisal Dist. v. Hines Wholesale Nurseries, 844 S.W.2d 857, 858-59 (Tex.
App.—Texarkana 1992, writ denied). An admission of a purely legal issue is of no effect. Id.

                                                 14
        The net effect of the statutory interplay [between the Medical Practice Act and the
        Chiropractic Act] is that a person licensed by [the Texas Board of Chiropractic
        Examiners] as a chiropractor but not by the Texas Medical Board to “practice
        medicine” (i.e., as a physician) can lawfully do things that would otherwise constitute
        “practicing medicine” as long as he remains within the statutory scope of chiropractic
        under chapter 201. However, to the extent he exceeds the statutory scope of
        chiropractic, he would subject himself to the Medical Practice Act—and practice
        medicine unlawfully. Another consequence of this statutory interplay is a long
        history of professional, scientific, or economic antagonism between chiropractors and
        the medical community, and resultant disputes, spanning all three branches of
        government, regarding where any legal line between chiropractic and the practice of
        medicine is or should be.


375 S.W.3d at 467. Under the circumstances, we believe it would be inappropriate and contrary to

the legislature’s intent to give deference to the Board’s interpretation of the statutes governing

the two disciplines. See Rogers v. Texas Bd. of Architectural Exam’rs, No. 03-10-00182-CV,

2011 WL 3371543, at *5 (Tex. App.—Austin Aug. 3, 2011, no pet.) (mem. op.) (“As neither statute

establishes a clear line of demarcation between the professions, we believe it would be unreasonable

and contrary to the legislature’s intent to give total deference to either agency’s interpretation of the

statutes to the extent of any overlap.”).


                                            CONCLUSION

                For the reasons set forth above, we conclude that neither the TMA nor the Board has

shown its entitlement to summary judgment regarding the validity of the rule provisions

purporting to authorize certain of the Board’s licensees to perform “Technological Instrumented




                                                   15
Vestibular-Ocular-Nystagmus Testing.” See 22 Tex. Admin. Code §§ 75.17(c)(2)(F), (c)(3)(C). We

therefore reverse the trial court’s judgment and remand the cause to that court for

further proceedings.



                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Reversed and Remanded

Filed: November 21, 2012




                                             16
