                                                                                     ACCEPTED
                                                                                 03-15-00262-CV
                                                                                         8303548
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           12/18/2015 1:20:02 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK

                  No. 3-15-00262-CV
                                                               FILED IN
                                                        3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                       In the Court of Appeals          12/18/2015 1:20:02 PM
                   Third District of Texas — Austin         JEFFREY D. KYLE
                                                                 Clerk

TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE,

                                                         Appellant,
                                  v.

  TEXAS BOARD OF CHIROPRACTICE EXAMINERS AND YVETTE
YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,

                                                         Appellees.


       On Appeal from 201st District Court, Travis County, Texas
                    Cause No. D-1-GN-14-000355



     ACUPUNCTURE ASSOCIATION’S RESPONSE TO THE
    CHIROPRACTIC BOARD’S THIRD MOTION TO STRIKE




                           Craig T. Enoch
                          Melissa A. Lorber
                           Shelby O’Brien
                        ENOCH KEVER PLLC
                  600 Congress Avenue, Suite 2800
                         Austin, Texas 78701
                 (512) 615-1200 / (512) 615-1198 fax

                       Attorneys for Appellant


                                  1
      In its Third Motion to Strike, the Chiropractic Board again asks the Court to

strike portions of an amicus brief, this time the amicus letter submitted by the

Council of Colleges of Acupuncture and Oriental Medicine’s (CCAOM). The

Board also asks the Court to strike a footnote in the Acupuncture Association’s

reply brief (a reference to an online recording of a Chiropractic Board ad hoc

meeting). The Court should deny the Board’s newest motion.

      The Acupuncture Association has already fully responded to the Board’s

previous motions to strike. The Acupuncture Association refers the Court to those

responses and incorporates them here by reference. But it bears repeating that:

         • An amicus curiae does not file documents with the Court. TEX. R.
           APP. P. 11. The Court’s clerk only receives amicus briefs and letters.
           Id. The Board does not explain how the Court can strike a document
           that is not even filed.

         • The Association merely refers the Court to a state government website
           in the public domain for the Court’s reference. The recording is not
           “evidence,” and this is not an appeal that turns on evidence. In the
           very least, the Court can take judicial notice of the recording since
           there is no reasonable dispute that Yvette Yarbrough said what she
           said, nor that a recording on the Chiropractic Board’s website is
           inaccurate. TEX. R. EVID. 201(b)(2); MCI Sales & Serv. v. Hinton, 329
           S.W.3d 475, 484 & n.7 (Tex. 2010).




                                         2
                                      PRAYER

      Appellant Texas Association of Acupuncture and Oriental Medicine

respectfully prays that this Court deny the Chiropractic Board’s Third Motion to

Strike. The Acupuncture Association further requests any other relief the Court

deems appropriate at law or equity.

                                       Respectfully submitted,



                                       By: /s/ Craig T. Enoch
                                          Craig T. Enoch
                                            Texas Bar No. 00000026
                                            cenoch@enochkever.com
                                          Melissa A. Lorber
                                            Texas Bar No. 24032969
                                            mlorber@enochkever.com
                                          Shelby O'Brien
                                            Texas Bar No. 24037203
                                            sobrien@enochkever.com
                                          ENOCH KEVER PLLC
                                          600 Congress Avenue, Suite 2800
                                          Austin, Texas 78701
                                          512.615.1200 Telephone
                                          512.615.1198 Fax
                                             Attorneys for Texas Association of
                                             Acupuncture and Oriental Medicine




                                         3
                         CERTIFICATE OF SERVICE

      I hereby certify that, on December 18, 2015, the Acupuncture Association’s

Response to the Chiropractic Board’s Third Motion to Strike was served via

electronic service on the following:

Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov



                                           /s/ Craig T. Enoch
                                           Craig T. Enoch




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