                                                                                 ACCEPTED
                                                                             03-14-00774-CV
                                                                                     7470675
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                      10/21/2015 10:53:30 AM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                      No. 03-14-00774-CV

                                                           RECEIVED IN
             IN THE THIRD COURT OF APPEALS            3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                     AUSTIN, TEXAS
                                                     10/21/2015 10:53:30 AM
                                                        JEFFREY D. KYLE
                                                              Clerk
     TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS
AND NICOLE ORIA, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR,
                                          Appellant,
                               v.
                    ELLEN JEFFERSON, D.V.M,
                                         Appellee,

          ON APPEAL FROM THE 250TH JUDICIAL DISTRICT
                  OF TRAVIS COUNTY, TEXAS


                    BRIEF OF AMICUS CURAIE
                        CITY OF AUSTIN


                       ANNE L. MORGAN, Interim City Attorney
                       MEGHAN L RILEY, Division Chief, Litigation
                       MICHAEL SIEGEL, Assistant City Attorney
                       State Bar No. 24093148
                       CHRISTOPHER COPPOLA, Assistant City Attorney
                       State Bar No. 24036401
                       City of Austin Law Department
                       P. O. Box 1546
                       Austin, Texas 78767-1546
                       Telephone: (512) 974-2888
                       Facsimile: (512) 974-1311
                       michael.siegel@austintexas.gov
                       christopher.coppola@austintexas.gov

                       COUNSEL FOR AMICUS CURAIE
                       CITY OF AUSTIN
                                          TABLE OF CONTENTS

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

INDEX OF AUTHORITIES.................................................................................... iii

INTEREST OF AMICUS CURAE ........................................................................... 1

SUMMARY OF ARGUMENT ................................................................................ 2

ARGUMENT. ............................................................................................................ 3

         I.        Without the Ownership Exemption, the City Would Face
                   Financial Pressure to Sacrifice the Lives of Healthy
                   Homeless Animals to Avoid Increased Taxes or Cuts to
                   Essential Services . ................................................................................ 3

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

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

CERTIFICATE OF COMPLIANCE ........................................................................ 9




                                                            ii
                                       INDEX OF AUTHORITIES

Texas Constitution

Article VI, § 5 ........................................................................................................... 1

State Statutes

Texas Occupational Code § 800.004 ..................................................................... 1, 3




                                                            iii
                           INTEREST OF AMICUS CURAIE

      The City of Austin (“City”) is a home-rule municipality and political

subdivision of the State of Texas. As part of its police power authority, the City has

established a Department of Animal Services which takes responsibility for the

care and adoption of homeless animals. See TEX. CONST. art. XI, § 5 (granting

home-rule cities broad discretionary powers, so long as no local ordinance

contradicts the Texas Constitution or laws enacted by the state Legislature).

      Beginning in 1997, the City began its efforts to adopt and implement a “no

kill” policy in regards to healthy homeless animals in the custody of the Animal

Services Department. In 2010, the City dedicated considerable financial and

political resources to the implementation of its “no kill” policy. Effectuation of this

policy—which has led to a near complete elimination of discretionary killing of

homeless animals within the City limits—is substantially dependent upon the

ability of shelter veterinarians to rely on the “ownership exemption” contained

within the Texas Occupations Code. See TEX. OCC. CODE. § 800.004(1).

      The City is paying all fees and expenses to prepare this brief. See TEX. R.

APP. P. 11.




                                          1
                          SUMMARY OF THE ARGUMENT

      The City of Austin has implemented a robust and humane animal services

policy in order to provide the best possible care for its homeless animals. Whereas

prior to the adoption of its “no kill” policy the City would destroy thousands of

animals each year that were neither terminally ill nor unreasonably dangerous, the

City has now implemented a comprehensive regime including efforts to: limit the

population of homeless animals through sterilization programs; provide high

quality intake and care services; encourage fostering and adoption of homeless

animals; and generally reduce the number of “killed” animals to a tiny fraction of

what it was. The City dedicates over ten million dollars per year to its animal

services operations, employing dozens of staff including full-time and part-time

veterinarians, veterinary technicians, an animal behaviorist, public education

personnel, and others. The City also contracts with outside organizations to provide

spay/neuter, adoption, and care services, and the Animal Services Department

recruits numerous volunteers to assist with its intake, education, adoption, and

animal care operations.

      Despite this substantial commitment by the City to provide for its most

disadvantaged animal residents, however, the recent action by the Texas State

Board of Veterinary Medical Examiners threatens Austin’s ability to provide

affordable and comprehensive animal care. In particular, the decision to investigate


                                         2
a shelter veterinarian for failure to establish a veterinarian-client-patient

relationship with a homeless animal threatens the financial model that the City

works from as it implements a comprehensive and “no kill” animal services policy.

      The City of Austin submits this brief as amicus curiae to ask the Court to

confirm that the “owner exemption” of the Veterinary Licensing Act applies to

veterinarians when they treat homeless animals owned by a public or private

animal shelter.

                                   ARGUMENT

      I.    Without the Ownership Exemption, the City Would Face
            Financial Pressure to Sacrifice the Lives of Healthy Homeless
            Animals to Avoid Increased Taxes or Cuts to Essential Services.

      The Texas State Board of Veterinary Medical Examiners (TSBVME) has

narrowly argued the issues on appeal, suggesting that the scope of the “ownership

exemption” is not at issue.1 This framing ignores the fact that this proceeding

would not exist absent TSBVME’s decision to investigate Dr. Jefferson despite

both (a) the clearly established ownership exemption Texas Occupations Code,

Section 800.004(1), and (b) the TSBVME’s own guidance that a shelter becomes




1
   See Brief of Cross-Appellees Texas State Board of Veterinary Medical
Examiners and Nicole Oria, in her Official Capacity as Executive Director, at 18
(“Dr. Jefferson’s arguments on the merits are irrelevant to the issues to be decided
in this appeal”) (filed Sept. 11, 2015).
                                         3
the owner of a homeless animal following a “stray hold” waiting period.2

Furthermore, the November 18, 2014, Order of the Travis County District Court

that provides the basis for this appeal rules that TSBVME violated the Texas

Occupations Code in its zeal to subject Dr. Ellen Jefferson to certain agency rules

that plainly contradict the ownership exemption.3

      It is the City’s concern for the continued enforcement of the ownership

exemption that motivates this submission as amicus curiae. As discussed above,

the City is firmly invested in a comprehensive, “no kill” approach to providing

care for homeless animals. Without the ability to rely on the ownership exemption,

the City would be forced to completely reformulate its approach to animal services.

      Amici Alley Cat Allies provides an excellent summary of the policy and

financial constraints imposed on shelter veterinary practices.

          The owner exception is critical because shelters and rescue
      organizations face limitations that are not present in the private
      practice of veterinary medicine. These limitations include the volume
      of animals handled, the space in which animals are seen or housed, the
      well-being of animals presented, and a disparity in financial resources.
      Shelters and rescue organizations handle far more animals than most
      veterinary clinics, often without the ability to schedule admissions in
      advance. Animals are sheltered in relatively close quarters, as opposed
      to the private homes of most veterinary clients. Private practices can
      assume a basic level of care [and record of vaccination] for most
      patients; in most cases, shelters do not know the care or vaccination

2
  See Brief of Appellant Ellen Jefferson, D.V.M., at 8-10 (filed July 9, 2015); see
also 3.RR.PX18:EJ000638.
3
  See “Final Judgment,” Brief of Appellee Ellen Jefferson, D.V.M., Tab C, at 1-2
(filed Sept. 8, 2015).
                                          4
      histories of admitted animals. Finally, most shelters or rescue
      organizations do not have anywhere near the financial resources,
      especially when calculated on a per-animal basis, compared to private
      veterinary practices, which are usually paid by clients on a fee-for-
      service model. A shelter, of course, has no client to foot the bill.4

      In the City of Austin, it is the taxpayers who “foot the bill” for the care of

homeless animals. In addition to the millions of dollars that the City spends on its

own staff and facilities, the Animal Services Department also relies on “in kind”

services and outside expenditures by its nonprofit partners. Austin Pets Alive!

(APA), among other organizations, has been an essential vendor of services and an

important collaborative partner in regards to the City’s ongoing efforts to meet its

“no kill” objectives.

      Pursuant to a renewable contract with the City, APA operates the Town

Lake Animal Center (TLAC), one of the core facilities within Austin’s public-

private safety net of animal clinics and adoption centers. As part of the City-APA

agreement, APA promises to treat at least 3,000 at-risk homeless animals each

year, or 12% of the total number animals taken in by the City’s Department of

Animal Services, whichever is greater.5 APA also accepts several behaviorally

challenged large dogs each month, to further support the City’s “no kill”

objectives.

4
 Amicus Brief by Alley Cat Allies in Support of Dr. Jefferson, at 8-9.
5
 In practice, APA accepts animals far in excess of the contractual minimum. In the
most recent year for which data is available, APA accepted over 3,800 homeless
animals from the City of Austin.
                                         5
      APA has assumed these obligations for Austin-area animals at considerable

cost. The City estimates that APA contributes over $1,000,000 annually to the

operation of TLAC, raised entirely from APA’s network of supporters. The City

pays approximately $12,000 per month for certain operating expenses, and the City

also funds electric, water, and wastewater utility charges, but otherwise, APA

assumes full responsibility for the maintenance and operation of TLAC.

      In other words, APA has been an essential partner in the City’s work to

create a “no kill” environment for homeless animals in the Austin area. This work

is premised in large part upon the “ownership exemption,” which permits shelter

veterinary organizations such as APA to provide cost-effective services on behalf

of the City and its residents.

      Without its reliance on the “ownership exemption,” APA will not be able to

provide the charitable shelter veterinary services that are essential to fulfillment of

the City’s “no kill” objections. The consequences that flow from reduced

charitable shelter veterinary services could be severe. If APA is forced to

substantially reduce, or even eliminate its services, the City would find itself faced

with the terrible choice of, on one hand, revoking its commitment to “no kill,” and

returning to the destruction of healthy homeless animals; or, on the other hand,

funding its commitment to these animals by raising taxes or cutting other necessary

public services.


                                          6
                                    PRAYER

      The City of Austin requests that the Court of Appeals affirm that nonprofit

shelter veterinary organizations can rely on the “ownership exemption” when they

provide medical treatment to homeless animals.

                              RESPECTFULLY SUBMITTED,

                              ANNE L. MORGAN, Interim City Attorney
                              MEGHAN L RILEY, Division Chief, Litigation

                              /s/ Michael Siegel
                              MICHAEL SIEGEL, Assistant City Attorney
                              State Bar No. 24093148
                              CHRISTOPHER COPPOLA, Assistant City Attorney
                              State Bar No. 24036401
                              City of Austin Law Department
                              P. O. Box 1546
                              Austin, Texas 78767-1546
                              Telephone: (512) 974-2888
                              Facsimile: (512) 974-1311
                              michael.siegel@austintexas.gov
                              christopher.coppola@austintexas.gov

                              COUNSEL FOR AMICUS CURAIE
                              CITY OF AUSTIN




                                       7
                          CERTIFICATE OF SERVICE

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

October 2 1, 2015, via an electronic filing service provider.

VIA E-MAIL
Andrew Lutostanski
Ted Ross
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548
Austin, TX 78711
andrew.lutostanski@texasattorneygeneral.gov
ted.ross@texasattorneygeneral.gov

Ryan Clinton
Davis, Gerald & Cremer, P.C.
111 Congress Ave., Suite 2800
Austin, TX 78701
rdclinton@dgclaw.com

David Brown
Ewell, Brown & Blanke, LLP
111 Congress Ave., 28th Floor
Austin, TX 78701
dbrown@ebblaw.com

                                 /s/ Michael Siegel
                                 MICHAEL SIEGEL




                                          8
                      CERTIFICATE OF COMPLIANCE

      This brief complies with the type-volume limitations of Tex. R. App. P.

9.4(i)(2)(B) because this brief contains 1,448 words, excluding the parts of the

brief exempted by Tex. R. App. P. 9.4(i)(1).



                                /s/ Michael Siegel
                                MICHAEL SIEGEL




                                         9
