                                                                                   ACCEPTED
                                                                               03-14-00774-CV
                                                                                       7568136
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         10/27/2015 5:13:19 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                     No. 03-14-00774-CV

                  IN THE COURT OF APPEALS                   RECEIVED IN
                                                      3rd COURT OF APPEALS
              FOR THE THIRD DISTRICT OF TEXAS              AUSTIN, TEXAS
                         AT AUSTIN                    10/27/2015 5:13:19 PM
                                                          JEFFREY D. KYLE
                                                               Clerk

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

                                Appellants,

                               v.

                  ELLEN JEFFERSON, D.V.M.

                                    Appellee.


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


       BRIEF OF AMICUS CURIAE TEXAS FARM BUREAU


                                     James D. Bradbury
                                     State Bar No. 02814500
                                     Courtney Cox Smith
                                     State Bar No. 24045711
                                     JAMES D. BRADBURY, PLLC
                                     9442 Capital of Texas Hwy N
                                     Arboretum Plaza 1, Suite 500
                                     Austin, Texas 78759
                                     Telephone: 512-343-3626
                                     jim@bradburycounsel.com
                                     ccox@bradburycounsel.com

                                     ATTORNEYS FOR AMICUS CURIAE
                 IDENTITY OF PARTIES AND COUNSEL


Appellants/Cross-Appellees/Defendants:

Texas State Board of Veterinary Medical Examiners and Nicole Oria, In Her
Official Capacity as Executive Director

Appellants’ Counsel:

Andres Lutostanski
State Bar No. 24072217
Ted A. Ross
State Bar No. 24008890
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Telephone: 512-475-4200
Andrew.lutostanski@texasattorneygeneral.gov
Ted.ross@texasattorneygeneral.gov

Appellee/Cross-Appellant/Plaintiff:

Ellen Jefferson, D.V.M.

Appellee’s Counsel:

David F. Brown                              Ryan Clinton
State Bar No. 03108700                      State Bar No. 24027934
David P. Blanke                             Davis, Gerald & Cremer, P.C.
State Bar No. 02453600                      111 Congress Ave., Suite 1660
Ewell, Brown & Blanke, LLP                  Austin, Texas 78701
111 Congress Ave., 28th Floor               Telephone: 512-537-9938
Austin, Texas 78701                         rdclinton@dgclaw.com
Telephone: 512-457-0233
dbrown@ebblaw.com
dblanke@ebblaw.com



                                       ii
   IDENTITY AND STATEMENT OF INTEREST OF AMICUS CURIAE

      Texas Farm Bureau is a Texas non-profit membership corporation committed

to the advancement of agriculture and prosperity for rural Texas. Founded in 1933,

Texas Farm Bureau has over 500,000 member families and is associated with 206

organized county Farm Bureau organizations across the state. Texas Farm Bureau

and its members—who are farmers, growers, and producers—believe the

preservation of certainty in the application of rules and statutes and the autonomy of

farmers, growers, and producers to manage and care for their livestock and farms is

of critical importance to the strength of the agricultural economy in Texas. The

“owner exemption” to the Veterinary Licensing Act is a key provision heavily relied

upon by agricultural operations throughout Texas, and preservation of this

exemption is of significant concern to Texas Farm Bureau and its members. Texas

law has long deferred to private property rights and interests. The decision of the

trial court erodes and threatens the owner exemption and in so doing, imperils those

that own and manage livestock in Texas.

      The Texas Farm Bureau is not a party to the case and will pay all attorney’s

fees incurred in the preparation of this amicus curiae brief. The Texas Farm Bureau

certifies that copies of the Brief have been or will be served on all parties. The Texas

Farm Bureau respectfully requests the opportunity to present these policy concerns

affecting agriculture.



                                           iii
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................ ii

IDENTITY AND STATEMENT OF INTEREST OF AMICUS CURIAE .......... iii

TABLE OF CONTENTS ....................................................................................... iv

INDEX OF AUTHORITIES.................................................................................. vi

STATEMENT OF THE CASE .............................................................................. 1

ISSUES PRESENTED .......................................................................................... 2

STATEMENT OF FACTS .................................................................................... 3

SUMMARY OF THE ARGUMENT .................................................................... 4

ARGUMENT ......................................................................................................... 6

         I.       The Trial Court’s decision limits the “owner exemption,” creating
                  uncertainty and ambiguity and threatening the continued protection
                  of private property rights in Texas. ................................................... 6

                  A. The Texas Legislature expressly intended the “owner exemption”
                     to be absolute and outside the authority and jurisdiction of the
                     Board. ........................................................................................... 6
                  B. The “owner exemption” is a critical component of the agricultural
                     industry and must be protected. ................................................... 9
                  C. The trial court’s ruling grants discretion to the Board in
                     contravention of the Legislature’s clearly expressed intent. ........ 11

         II.      The Trial Court erred by requiring Dr. Jefferson to exhaust her
                  administrative remedies and creating new Board jurisdiction where
                  none exists. ........................................................................................ 13

         III.     The Trial Court erred by allowing and encouraging the Board to act
                  outside its statutory authority. ........................................................... 16

CONCLUSION AND PRAYER ........................................................................... 17

                                                           iv
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i) .................................... 18

CERTIFICATE OF SERVICE .............................................................................. 19




                                                   v
                                       INDEX OF AUTHORITIES

Texas Cases

City of Round Rock v. Whiteaker, 241 S.W.3d 609 (Tex. App.—Austin 2007, pet.
denied)............................................................................................................... 13, 16

City of Sherman v. Pub. Util. Comm’n of Tex., 643 S.W.2d 681 (Tex. 1983)...... 17

Pistole v. State, 150 S.W. 618 (Tex. Crim. App. 1912)......................................... 14

Subaru of Am. Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212
(Tex. 2002) ............................................................................................................. 13

Tara Partners, Ltd. v. City of S. Hous., 282 S.W.3d 564 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied) ............................................................................... 17

Tex. Bd. of Chiropractic Examiners v. Tex. Med. Ass’n, 375 S.W.3d 464 (Tex.
App.—Austin 2012, pet. denied) ........................................................................... 14

Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780 (Tex. 1978) ............. 14


Texas Statutes

Tex. Occ. Code Ann. § 801.002............................................................................ 7, 8

Tex. Occ. Code Ann. § 801.004........................................................... 1, 6, 8, 12, 14

Tex. Occ. Code Ann. § 801.251................................................................................ 8

Texas Rules and Regulations

22 Tex. Admin. Code § 573.72 ................................................................................. 1

22 Tex. Admin. Code § 573.80 ................................................................................. 1




                                                             vi
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

                         STATEMENT OF THE CASE

      This case centers on private property rights in Texas, and specifically, on the

long-recognized right of agriculture owners to manage the care and treatment of their

animals free of state regulation under the Veterinary Licensing Act. Appellants are

the Texas Board of Veterinary Medical Examiners and its Executive Director

(collectively, the “Board”) who are seeking to regulate the care and treatment of

small shelter animals in contravention of the “owner exemption” of Tex. Occ. Code

Ann. § 801.004(1). Appellee is Dr. Ellen Jefferson (“Dr. Jefferson”) who is an

animal shelter veterinarian and the subject of the Board’s action.

      The Honorable Gisela D. Triana held a combined hearing on the Board’s Plea

to the Jurisdiction and a Trial on the Merits in the 250th Judicial District Court of

Travis County, Texas on August 4, 2014. The trial court granted the Plea to the

Jurisdiction in part, dismissing Dr. Jefferson’s claims for declaratory judgment on

the ground that she must exhaust administrative remedies. The trial court entered

judgment declaring that the Board’s rules in 22 Tex. Admin. Code §§ 573.72 and

573.80(2) are contrary to the “owner exemption” in Tex. Occ. Code Ann. §

801.004(1) and therefore invalid, and further declared that the Board had the

authority to enforce other laws concerning a veterinary license notwithstanding the




                                          1
“owner exemption.” The trial court remanded the case to the Board for further

proceedings. Both parties seek review of the trial court’s decision before this Court.

                              ISSUES PRESENTED

      The trial court erred in placing the continued strength and existence of the

“owner exemption” to the Veterinary Licensing Act in peril. The trial court’s rulings

undermine the “owner exemption” creating uncertainty and ambiguity and

threatening the continued protection of private property rights in Texas. The Texas

Legislature long ago recognized the importance of the “owner exemption” to Texas

citizens, particularly agricultural operators and producers. Texas producers should

have confidence that the “owner exemption” is not open to the mercy of the Board

or this trial court regarding a specific exemption created by the Texas Legislature.

      The trial court erred by limiting the “owner exemption,” thereby wrongly

expanding the Board’s authority to act and creating uncertainty and ambiguity in the

law. The trial court further erred in its unlawful expansion of limited agency

jurisdiction by requiring that Dr. Jefferson must exhaust administrative remedies

before challenging the Board’s ultra vires action against her. Finally, the trial court

erred by ignoring the clearly expressed intent of the Texas Legislature to limit the

Board’s authority and jurisdiction when the court granted the Board discretionary

authority to regulate notwithstanding the “owner exemption.”




                                          2
                             STATEMENT OF FACTS

      This case stems from the actions of Dr. Jefferson, a veterinarian, who founded

and operated a “No-Kill” animal shelter in San Antonio, Texas called San Antonio

Pets Alive (“SAPA”). Dr. Jefferson’s role in SAPA was substantial, serving as its

Executive Director, lead veterinarian, and responsible for SAPA’s daily affairs.

(2.RR.124, 2.RR.171, 3.RR.PX43:EJ001539) Dr. Jefferson relied upon the “owner

exemption” to the Texas Veterinary Licensing Act to provide veterinary services to

the animals in the shelter and to care and treat the animals. (3.RR.PX18:EJ000638;

2.RR.144-45) It had long been understood that animals not claimed by their owners

within the applicable hold period (often three days) become property of the shelter.

In   other   words,    the   shelter   becomes    the    owner    of   the   animals.

(3.RR.PX18:EJ000638) As such, SAPA could rely on the “owner exemption” to care

for and treat its animals without intervention, oversight, or regulation by the Board.

      On December 27, 2013, the Board brought charges against Dr. Jefferson

alleging wrongdoing with respect to a dog owned by SAPA. (1.CR.117) Dr.

Jefferson, believing the Board’s action to be illegal, contrary to the long-recognized

“owner exemption” to the Act, and outside the scope of statutory authority granted

to the Board by the Legislature, filed a lawsuit in the trial court of Travis County,

Texas seeking declaratory relief that the Board’s conduct was unlawful and ultra

vires and seeking temporary and permanent injunctive relief to stop the Board’s



                                          3
action. (1.CR.4-21) The Board challenged Dr. Jefferson’s lawsuit through a Plea to

the Jurisdiction. (1.CR.47, 133-35) After a hearing and trial on the merits, the court

granted the Plea to the Jurisdiction in part and denied it in part, invalidating two of

the Board’s rules. (1.CR.855.857) Because the court ruled that it did not have

jurisdiction to consider the Board’s authority to prosecute Dr. Jefferson, the Board’s

action against Dr. Jefferson was remanded to the State Office of Administrative

Hearings. After a hearing, the Administrative Law Judge determined that Dr.

Jefferson was acting under the “owner exemption” and that her actions were exempt

from the Board’s jurisdiction. See Ex. E to Brief of Appellant Ellen Jefferson,

D.V.M.

                       SUMMARY OF THE ARGUMENT

      It is well-settled in Texas that the care and treatment of animals by their

owners is exempt from regulation under the Veterinary Licensing Act. Although this

case contemplates the “owner exemption” in the context of shelter based small

animals and pets, the scope of the exemption is far-reaching. For decades, Texas

farmers and ranchers have relied on the “owner exemption” to care for and treat their

livestock herds. The continued strength and continuity of this exemption will ensure

that agricultural operators and producers are able to continue in the efficient and

cost-effective care and treatment of their animals. The implications of this case are

therefore significant and far-reaching.



                                          4
      The trial court’s ruling erodes the “owner exemption,” creating uncertainty

and ambiguity and placing the continued existence of the exemption at risk by

converting a once clear and absolute exemption to a discretionary and selectively

applied exemption. The trial court’s decision further improperly expands the

authority and power of the Board beyond the statutory authority granted by the Texas

Legislature. The trial court wrongly enlarges agency jurisdiction where no such

jurisdiction exists or was ever intended by the Legislature.

      Under the trial court’s rulings, the Board could opt to override the “owner

exemption” if it chooses to do so. In that case, agricultural operators and producers

may be required to call, wait and pay for a veterinarian for any care or treatment of

their herd, activities currently conducted by the farmer himself. Further, livestock

operators would be cast into regulatory uncertainty over whether they can rely on

the “owner exemption” to be absolute. The consequences for the agricultural

industry if the “owner exemption” is diminished would be dire. In a state with over

19 million head of cattle and the top producer of beef cattle in the United States,

Texas livestock producers daily rely on the certainty of the “owner exemption.” The

Legislature intended this exemption to be and remain absolute. Without question,

the Board does not have authority or jurisdiction to regulate owners of animals in

the State of Texas. The trial court’s rulings undermining the “owner exemption”

should not stand.



                                          5
                                   ARGUMENT

I.    The Trial Court’s decision limits the “owner exemption,” creating
      uncertainty and ambiguity and threatening the continued protection of
      private property rights in Texas.

      Texas law has long recognized and closely guarded private property rights

from the unwarranted and unintended regulatory reach of state agencies. Among

these private property rights is the recognition that animals are the property of their

owner. Even more so where production livestock is concerned. The Texas

Legislature affirmed the security of this right by creating a clear and absolute

exception to the Veterinary Licensing Act and placing the authority for the treatment

and care of an animal in the hands of the owner. Tex. Occ. Code Ann. § 801.004(1).

Notably, the legislature did not empower the Board with discretion to selectively

enforce the “owner exemption.” The statute makes clear that the “owner exemption”

applies even against the wishes and intentions of the Board. See id. (stating that the

Veterinary Licensing Act does not apply “in any manner” to “the owner of the

animal”).

      A.     The Texas Legislature expressly intended the “owner exemption”
             to be absolute and outside the authority and jurisdiction of the
             Board.

      The Veterinary Licensing Act is expansive in application. The Act broadly

defines “veterinary medicine” as including “veterinary surgery, reproduction and

obstetrics, dentistry, ophthalmology, dermatology, cardiology, and any other



                                          6
discipline or specialty of veterinary medicine.” Tex. Occ. Code Ann. § 801.002(7).

The Act goes on to describe activities considered to be the “practice of veterinary

medicine” as:

            (A) the diagnosis, treatment, correction, change, manipulation,
                relief, or prevention of animal disease, deformity, defect,
                injury, or other physical condition, including the prescription
                or administration of a drug, biologic, anesthetic, apparatus,
                or other therapeutic or diagnostic substance or technique;

            (B) the representation of an ability and willingness to perform an
               act listed in Paragraph (A);

            (C) the use of a title, a word, or letters to induce the belief that a
               person is legally authorized and qualified to perform an act
               listed in Paragraph (A); or

            (D) the receipt of compensation for performing an act listed in
                Paragraph (A).

Id. § 801.002(5). The Act, by its own language, is intended to encompass a large

swath of persons, activities, procedures, and circumstances.

      Although the Texas Legislature intended the Act to be broad in application, it

did not intend the Act to be without exception. The Legislature carved out certain

exemptions over which the Act would have no application and the Board would have

no jurisdiction. At the forefront of these exemptions is the “owner exemption,”

which the Legislature created when it determined 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 this chapter.



                                          7
Id. § 801.004(1) (emphasis added). Lest there be any question about the intended

breadth of the exemption, the Legislature made clear that the act did not apply to

owners “in any manner.” Id.; see also Tex. Occ. Code Ann. § 801.251 (excepting

exemptions of § 801.004 (including the “owner exemption”) from requirement to

obtain a license for practice of veterinary medicine). Owners are therefore entirely

exempt from regulation by the Board. There is no question or discretion.

      The activities encompassed by the “owner exemption” are numerous and

varied, ranging from diagnosis and treatment to disease prevention and covering a

wide array of specialties from surgery to reproductive issues to dermatology and

beyond. See id. §§ 801.002(5), (7). The Board itself has recognized the absolute

exemption for owners when it said, “[u]nder Texas law, an animal’s owner or a

caretaker designated by the owner can perform acts of veterinary medicine on the

animal without involving a veterinarian and without concern for establishing a

veterinarian-client-patient relationship, because the owners and caretakers are

exempt from the Veterinary Licensing Act.” Texas State Board of Veterinary Medical

Examiners, Board Notes, Fall 2012, at 2. The scope of activities allowed, therefore,

under the “owner exemption” is broad, and for those who care for and raise animals

as a business, the continued protection of the exemption is critical.

      Although the present case involves shelter animals, the proper construction

and application of the “owner exemption” is essential and must be done in light of



                                          8
the substantial industry for which it was created, Texas livestock production. Texas

is not alone in exempting owners from veterinary regulation. Forty-one other states

plus the District of Columbia recognize some form of the “owner exemption.” See

AVMA State Legislative and Regulatory Department, Scope of Practice:

Complementary and Alternative Veterinary Medicine (CAVM) and Other Practice

Act     Exemptions        (last    updated       May       2015),      available     at

https://www.avma.org/Advocacy/StateAndLocal/Pages/sr-cavm-exemptions.aspx.

The threatened limitation of this exemption poses significant consequences for the

State of Texas.

      B.     The “owner exemption” is a critical component of the agricultural
             industry and must be protected.

      Agricultural owners and operators have long relied on the “owner exemption”

for efficient and effective care and treatment of their livestock. It forms a key aspect

of the industry. With over 248,800 farms and ranches spanning 130.2 million acres,

Texas leads the nation in cattle, sheep, and goats. Tex. Dept. of Agriculture, Texas

Ag Stats, available at https://www.texasagriculture.gov/About/TexasAgStats.aspx.

Animal production in Texas is a multi-billion-dollar industry. In 2012, cattle alone

brought in $10.5 billion. Tex. Dept. of Agriculture, Texas Ag Stats, available at

https://www.texasagriculture.gov/About/TexasAgStats.aspx. Milk and broiler sales

brought an additional $3.5 billion into the Texas economy. Id.




                                           9
      At the beginning of 2015, Texas producers held an inventory of nearly 19

million cattle, nearly 1 million goats, over 700,000 sheep, over 800,000 hogs, and

nearly 600 million chickens. Nat’l Agricultural Statistics Serv., U.S. Dept. of

Agriculture,   2014     State   Agriculture     Overview,    at   1,   available    at

https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=T

EXAS. These numbers don’t even account for the thousands of smaller farms

keeping horses and smaller herds who equally rely on the “owner exemption” for

the care and treatment of their animals.

      The importance of the “owner exemption” extends, therefore, well beyond the

issue of the care and treatment of shelter animals. The continued strength and breadth

of this exemption is critical to agricultural operators and producers, and it is a

concept that is long-recognized in the agricultural community. Whether a farmer

with a small herd of horses or a large-scale operator with thousands of beef cattle or

chickens, agricultural operators for years have daily relied on this exemption as they

diagnosis, treat, and care for their animals. The “owner exemption” allows these

operators to care for their animals in real-time, diagnosing, administering

prescription medications, performing certain procedures to prevent disease, healing

an injury, or relieving a physical condition.

      Perhaps the simplest example is a ranch owner finding a sick calf or injured

cow in the pasture, as happens every day on farms and ranches across Texas. Under



                                           10
the “owner exemption,” the owner and his employees can quickly diagnose the

problem and treat it with medicine or other veterinary practices in the vast open

range. There is neither the time, the money, nor the need to drive to the nearest town,

call a veterinarian, and wait for a few days for a ranch call by the veterinarian.

Without the “owner exemption” it would be an unworkable system. There simply

are not enough large animal veterinarians in Texas to treat the massive herds.

      The successful history of livestock production in Texas depends upon the

independent and experienced judgment of producers. Without the full protection of

the “owner exemption,” livestock owners could not operate profitably as they would

be forced to call, wait, and pay a veterinarian for every potential animal ailment or

condition. The relationship between the “owner exemption” and agriculture,

therefore, is long-running and essential to the future economic health and success of

the industry.

      C.        The trial court’s ruling grants discretion to the Board in
                contravention of the Legislature’s clearly expressed intent.

      The Texas Farm Bureau supports the portion of the trial court’s judgment that

invalidates two of the Board’s rules that attempted to undermine the magnitude of

the “owner exemption.” The trial court, however, places the exemption at risk by

ruling that the Board can selectively enforce the Veterinary Licensing Act against a

veterinarian notwithstanding the “owner exemption.” Under some interpretations,

the trial court’s ruling could give the Board authority to enforce the Act or “ensure

                                          11
compliance” with the Act so long as it gives “proper and due regard for the

ownership exemption.” (1 CR.856) This new “discretionary” authority extends far

beyond that given to the Board by the Texas Legislature, which intended that owners

would not be subject to regulation “in any manner.” See Tex. Occ. Code Ann. §

801.004(1). It in fact rewrites the statute. And it is the Texas Legislature alone that

determined the private property rights of animal owners should be protected and be

absolutely exempted from regulation by the Board. Instead, the Legislature found it

insufficient for the Board to merely give “due regard” to owners in the care and

treatment of their animals. The Legislature removed this entire category of care and

treatment of animals by their owners from the force and effect of the Act. Livestock

producers have relied for decades on the Legislature’s clear meaning. The trial

court’s ruling oversteps and provides new-found authority to the Board where no

such authority exists or was ever intended.

      The Board contends that its rules and efforts against Dr. Jefferson do not alter

the “owner exemption” as a whole but addresses certain situations that are within its

statutory authority to regulate. In reality, the Board’s rules combined with the trial

court’s ruling in this case, are chipping away at the “owner exemption” in favor of a

discretionary case-by-case regulatory environment. The Board’s actions risk

focusing on the narrow area of small animal care while jeopardizing the substantial




                                          12
and well-operating private livestock industry. Erosion of part of the exemption,

however, threatens the whole.

      This is not a case dealing with a small subset of shelter animals. The rulings

in this case stand to impact all owners of animals, including the thousands of Texas

farmers and ranchers who daily rely on the “owner exemption” to manage their

herds, provide a safe food supply, and operate a profitable business. At best, the

court’s ruling injects uncertainty and ambiguity into the process, and at worst, it

erodes the “owner exemption” entirely, threatening private property rights and

ignoring the clear expressed intent of the Legislature. The unique facts and

circumstances of this case should not be read to interpret or diminish the

Legislature’s grant of a complete exemption to the owners of livestock in Texas.

The trial court’s ruling should be reversed.

II.   The Trial Court erred by requiring Dr. Jefferson to exhaust her
      administrative remedies and creating new Board jurisdiction where none
      exists.

      The trial court’s requirement that Dr. Jefferson exhaust her administrative

remedies before challenging the Board’s authority to regulate is patently wrong.

Administrative agencies may exercise only those powers the Legislature, through

statutory language, confers upon them, and this authority cannot be expanded by

courts or the agencies themselves. City of Round Rock v. Whiteaker, 241 S.W.3d

609, 641 (Tex. App.—Austin 2007, pet. denied) (quoting Subaru of Am. Inc. v.



                                         13
David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002)). When an agency is

acting beyond its statutory authority, as it is alleged in this case, the doctrine of

exhaustion of administrative remedies does not apply. Westheimer Indep. Sch. Dist.

v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978).

      The Board has no authority to regulate or exercise jurisdiction over owners of

livestock or animals in Texas. Tex. Occ. Code Ann. § 801.004(1). Further, the

Board’s own interpretation of its statutory authority or jurisdiction is given no

deference when the statute in question is unambiguous. See Tex. Bd. of Chiropractic

Examiners v. Tex. Med. Ass’n, 375 S.W.3d 464, 475 (Tex. App.—Austin 2012, pet.

denied). The intent of the Texas Legislature is unequivocal with respect to the

“owner exemption.” The Board has no authority or jurisdiction over Dr. Jefferson or

any other owner of animals or livestock in the State of Texas, and the trial court’s

attempt to vest the Board with jurisdiction or otherwise expand its authority is

patently wrong. See Pistole v. State, 150 S.W. 618, 621 (Tex. Crim. App. 1912)

(reasoning that “[i]n some instances this court might materially differ with the

Legislature about the policy of certain legislation, but, whenever the Legislature has

the right itself to pass upon the question of policy, this court cannot substitute its

judgment for that of the Legislature. The Legislature, and not this court, knows, or

is, so far as this court is concerned, conclusively presumed to know, the differences,

if any, of the various persons who have heretofore practiced or who may hereafter



                                         14
seek to practice veterinary medicine or surgery, and would better know than this

court the situation of such persons so as to make the proper distinction between them

as classes, not as individuals, in authorizing or prohibiting them from practicing such

profession”).

      As with the “owner exemption,” the implications of the court’s ruling extend

far beyond the facts of this case. The trial court’s ruling goes against long-standing

precedent—precedent that seeks to protect the citizens of Texas against overstepping

by administrative agencies. The citizens and businesses that make up Texas should

not be required to endure the time, expense, and complexity of an administrative

hearing before they may directly challenge the authority of an agency to bring the

action at issue. Dr. Jefferson, and others who stand in her shoes in the future, should

be able to determine the authority of the agency at issue in the courts before being

compelled to endure a long and expensive administrative process. Absent such an

early, clear right to challenge an agency’s ultra vires exercise of power, the agency

inherits additional power and authority. Landowners and operators will be left

subject to a process that the Legislature never endorsed or intended. The trial court’s

ruling ignores this long-standing precedent on agency jurisdiction and therefore,

should not stand.




                                          15
III.   The Trial Court erred by allowing and encouraging the Board to act
       outside its statutory authority.

       Through the lens of Texas policy of clearly-defined and limited governmental

reach, the court’s rulings and encouragement of the Board to act outside its statutory

authority sets a remarkable and dangerous precedent. The Board’s overstepping has

not gone without notice as several members of the Texas Legislature expressed

dismay at the Board’s actions in this case and beyond. Senator Charles Perry of

Lubbock in particular chastised the Board for being “so prescriptive that people are

paralyzed to do their job” and criticizing the Board for failing to recognize the big

picture. See Texas Senate Committee on Agriculture, Water & Rural Affairs hearing

on April 27, 2015.

       Although in this case it is the Veterinary Board that is overstepping its

authority, in another case it may be the Texas Commission on Environmental

Quality, the Texas Department of Agriculture, the Railroad Commission of Texas,

or the Public Utility Commission of Texas—each of which can have significant

impacts on agricultural operators and producers and average citizens alike. The

Texas Legislature and it alone has the power to confer or limit the authority of

administrative agencies. See Whiteaker, 241 S.W.3d at 641. It is an important part

of the checks and balances that ensure the fair and balanced operation of

government.




                                         16
      Agencies tend towards the expansion of their own authority. See, e.g., Tara

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

Dist.] 2009, pet. denied); see also City of Sherman v. Pub. Util. Comm’n of Tex., 643

S.W.2d 681, 684 (Tex. 1983). The surest way to silently broaden the reach of Texas

agencies is to compel citizens and businesses to endure and submit to regulation

before challenging its legal authority. The expenditure of time and money will place

the power with the agencies. Endorsing the expansion of the Board’s action in this

case beyond its statutory authority opens the door to other agencies following suit.

If unchecked, protections for Texas citizens that have long been protected and

preserved by the Texas Legislature will be threatened. Private property rights will

take a backseat to the will of administrative agencies.

                         CONCLUSION AND PRAYER

      This case extends far beyond the care and treatment of shelter animals in

central Texas clinics. The continued strength of the “owner exemption”—an

exemption long-relied upon by Texas farmers and ranchers in caring for their

livestock herds—must be preserved without any judicial or agency exceptions. The

erosion of this exemption would have a significant impact on a multi-billion-dollar

industry that is not only the mythic history of Texas but also is a key component of

the nation’s food supply. The trial court’s rulings that place the “owner exemption”

in peril should not stand. The Texas Farm Bureau therefore respectfully prays that



                                         17
this Court consider and protect the rights of Texas farmers and ranchers, affirm the

trial court’s invalidation of the Board’s rules, and reverse the trial court’s judgment

as to all other rulings.




                                           Respectfully submitted,


                                           /s/ James D. Bradbury
                                           James D. Bradbury
                                           State Bar No. 02814500
                                           Courtney Cox Smith
                                           State Bar No. 24045711
                                           JAMES D. BRADBURY, PLLC
                                           9442 Capital of Texas Highway N
                                           Plaza 1, Suite 500
                                           Austin, Texas 78759
                                           Telephone:      512-343-3626
                                           Facsimile:      512-345-2924
                                           jim@bradburycounsel.com
                                           ATTORNEYS FOR AMICI CURIAE


            CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)


      This to certify that the foregoing Brief of Amici Curiae consisted of 3,795
words, in accordance with Texas Rule of Appellate Procedure 9.4(i)(2).


                                               /s/ James D. Bradbury
                                               James D. Bradbury




                                          18
                         CERTIFICATE OF SERVICE
      This is to certify that on this 27th day of October, 2015, a true and correct
copy of the foregoing document was served on all parties via electronic service
provider and/or electronic mail:

Andres Lutostanski
State Bar No. 24072217
Ted A. Ross
State Bar No. 24008890
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Telephone: 512-475-4200
Andrew.lutostanski@texasattorneygeneral.gov
Ted.ross@texasattorneygeneral.gov

David F. Brown
State Bar No. 03108700
David P. Blanke
State Bar No. 02453600
Ewell, Brown & Blanke, LLP
111 Congress Ave., 28th Floor
Austin, Texas 78701
Telephone: 512-457-0233
dbrown@ebblaw.com
dblanke@ebblaw.com

Ryan Clinton
State Bar No. 24027934
Davis, Gerald & Cremer, P.C.
111 Congress Ave., Suite 1660
Austin, Texas 78701
Telephone: 512-537-9938
rdclinton@dgclaw.com

                                             /s/ James D. Bradbury
                                             James D. Bradbury


                                        19
