                                                                                                       ACCEPTED
                                                                                                   03-15-00262-CV
                                                                                                           7920010
                                                                                        THIRD COURT OF APPEALS
                                                                                                   AUSTIN, TEXAS
                                                                                             11/20/2015 9:59:40 AM
                                                                                                 JEFFREY D. KYLE
                                                                                                            CLERK


                      No. 3-15-00262-CV
                                                                          RECEIVED IN
                                                                    3rd COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                In the Court of Appeals
                            Third District of Texas – Austin        11/20/2015 9:59:40 AM
                                                                        JEFFREY D. KYLE
                                                                             Clerk

                 TEXAS ASSOCIATION OF ACUPUNCTURE
                      AND ORIENTAL MEDICINE,
                                                                           Appellant,
                                           v.

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

                                                                Appellees.
______________________________________________________________________________

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



        CORRECTED BRIEF OF AMICUS CURIAE
      NATIONAL CERTIFICATION COMMISSION FOR
       ACUPUNCTURE AND ORIENTAL MEDICINE


                                 DON R. SAMPEN
                                MARK J. SOBCZAK
                               CLAUSEN MILLER PC
                          10 South LaSalle Street, Suite 1600
                               Chicago, Illinois 60603
                          312-855-1010 / (312) 606-7777 fax

                           Attorneys for the Amicus Curiae




1550122.1
     TEXAS RULE OF APPELLATE PROCEDURE 11 REQUIREMENTS

             Amicus curiae National Certification Commission for Acupuncture

and Oriental Medicine (“NCCAOM”) submits this brief pursuant to Tex. R. App.

P. 11. The person paying the fee in connection with preparation of this brief is the

NCCAOM. The brief is submitted on behalf of the position taken by appellant

Texas Association of Acupuncture and Oriental Medicine (“TAAOM”).

                   IDENTITY OF PARTIES AND COUNSEL

Appellant Texas Association of Acupuncture and Oriental Medicine
Crag T. Enoch
Melissa A. Lorber
Shelby O’Brien
Enoch Kever PLLC
600 Congress Ave., Suite 2800
Austin, Texas 78701

Appellees Texas Board of Chiropractic Examiners and Yvette Yarbrough,
Executive Director in her Official Capacity
Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711

Amicus Curiae National Certification Commission for Acupuncture and Oriental
Medicine
Don R. Sampen
Mark J. Sobczak
Clausen Miller, P.C.
10 S. LaSalle St., 16th Fl.
Chicago, IL 60603


                                         i
1550122.1
                                           TABLE OF CONTENTS

TEXAS RULE OF APPELLATE PROCEDURE 11 REQUIREMENTS.................i

IDENTITY OF PARTIES AND COUNSEL .............................................................i
TABLE OF CONTENTS .......................................................................................... ii

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

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

I.          INTRODUCTION: NCCAOM’S BACKGROUND AND INTEREST
            IN THIS LITIGATION ...................................................................................1
II.         THE LEGISLATURE’S TRAINING AND REGULATORY
            REQUIREMENTS FOR THE PRACTICE OF ACUPUNCTURE
            SHOULD DETERMINE THE OUTCOME OF THIS APPEAL ................... 4

            A.      No Intention to Reduce Training Standards Applicable to the
                    Practice of Acupuncture Appears in the Legislation or Its History .... 10
            B.      No Intention to Eliminate Texas Medical Board Regulatory
                    Oversight Appears in the Legislation or Its History ...........................11
            C.      The TBCE’s Position Creates Disharmony by Producing Disparity
                    in Standards Applicable to Acupuncture Practice...............................12
            D.      The TBCE’s Proposed Interpretation Contravenes the Public
                    Interest .................................................................................................14
CONCLUSION ........................................................................................................18

CERTIFICATE OF COMPLIANCE .......................................................................20
CERTIFICATE OF SERVICE ................................................................................20




                                                               ii
1550122.1
                                     INDEX OF AUTHORITIES

CASES

Burke v. State,
      28 S.W.3d 545, (Tex. Crim. App. 2000) .................................................12, 13
DLB Architects,
     P.C. v. Weaver, 305 S.W.3d 407 ...................................................................13
Gandee v. Glaser,
     785 F. Supp. 684 (S.D. Ohio 1992) .........................................................16, 17
Garcia v. Tex. State Bd. of Med. Examiners,
     384 F. Supp. 434 (W.D. Tex. 1974) ..............................................................15
Howe v. Smith,
     199 A.2d 521 (Pa. 1964) ................................................................................17
In re J.M.R.,
       149 S.W.3d 289 (Tex. App. – Austin 2004, no pet.).....................................13
Lucas v. Maine Comm’n of Pharmacy,
      472 A.2d 904 (Me. 1984) ..............................................................................17
MCI Sales & Serv. v. Hinton,
     329 S.W.3d 475 & n. 7 (Tex. 2010) ............................................................... 1
Perez v. City of Laredo,
      82 S.W.3d 605 (Tex. App. – San Antonio 2002) .................................... 17-18
Thompson v. Texas State Board of Medical Examiners,
     570 S.W.2d 123 (Tex. App. – Tyler 1978, writ refused n.r.e.) .....................16

RULES, STATUTES & OTHER PROVISIONS

Tex. Gov’t Code Chpt. 311 ....................................................................................1, 4
Tex. Gov’t Code § 311.021(3), (5) ............................................................................ 5
Tex. Gov’t Code § 311.023(3), (4), (5) ..................................................................... 5


Tex. Occ. Code § 1.002 .............................................................................................4
Tex. Occ. Code § 151.002(13) .................................................................................15
Tex. Occ. Code § 151.003 .......................................................................................14

                                                         iii
1550122.1
Tex. Occ. Code § 151.052 .......................................................................................11
Tex. Occ. Code (Medical Practice Act) § 151.052(a)(3) ...............................5, 11, 15
Tex. Occ. Code § 201.002(a)(3) ................................................................................ 4
Tex. Occ. Code § 201.002(b)(2) ..........................................................................4, 12
Tex. Occ. Code § 201.051 .......................................................................................11
Tex. Occ. Code § 201.151 .......................................................................................11
Tex. Occ. Code § 201.152 .......................................................................................11
Tex. Occ. Code § 201.1525 .......................................................................................6
Tex. Occ. Code § 205.001(2) .........................................................4, 5, 11, 12, 17, 18
Tex. Occ. Code § 205.003(a) .....................................................................................5
Tex. Occ. Code § 205.001(7), (8) ............................................................................11
Tex. Occ. Code § 205.051(a)(2) ..............................................................................11
Tex. Occ. Code § 205.101(a) ...............................................................................6, 11
Tex. Occ. Code § 205.101(b) ...................................................................................11
Tex. Occ. Code § 205.206(a)(1) ................................................................................6
Tex. Occ. Code § 205.206(a)(3) ................................................................................ 6
Tex. Occ. Code § 205.255 .........................................................................................6
Tex. Occ. Code § 205.301(a)(2) ..............................................................................13
Tex. Occ. Code § 205.302(a) ...................................................................................13

Tex. R. Evid. 201(b)(2) ..............................................................................................1

22 Tex. Admin. Code § 78.14(b)(1)-(3), (d).............................................................. 7
22 Tex. Admin. Code § 183.4(a)(5)........................................................................... 3
22 Tex. Admin. Code § 183.2(2) ............................................................................... 7
22 Tex. Admin. Code § 183.4(4) ............................................................................... 7
22 Tex. Admin. Code § 183.4(a)(5)....................................................................... 7-8
22 Tex. Admin. Code § 183.4(a)(6)........................................................................... 8
22 Tex. Admin. Code § 183.20(b) .............................................................................8
22 Tex. Admin. Code § 183.20(b)(1)(D) ................................................................... 3

                                                          iv
1550122.1
                                SUMMARY OF ARGUMENT

            The proposed construction of the amendments to the Acupuncture Chapter

of the Texas Occupations Code by the Texas Board of Chiropractic Examiners

(“TBCE”), is inconsistent with all the relevant standards for statutory construction

as provided for in the Code Construction Act, Tex. Gov’t Code Chpt. 311. In

particular, the TBCE’s position contravenes public interest, does not lead to a

reasonable result, runs contrary to other laws on the same or similar subjects, and

otherwise results in a major disparity concerning the practice of acupuncture as

between the Acupuncture and Chiropractic Chapters. The TBCE’s construction

therefore should be rejected and the trial court’s decision reversed.

                                          ARGUMENT

I.          INTRODUCTION: NCCAOM’S BACKGROUND AND INTEREST
            IN THIS LITIGATION

            The following background information regarding the National Certification

Commission for Acupuncture and Oriental Medicine (“NCCAOM”) can be found

on its website.1 This Court may take judicial notice of the information inasmuch

as the facts set forth are not subject to reasonable dispute and can be accurately and

readily determined from a source whose accuracy cannot reasonably be questioned.

See Tex. R. Evid. 201(b)(2); MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 484 &

n. 7 (Tex. 2010) (taking judicial notice on appeal of research study regarding use
1
            See http://www.nccaom.org/.

                                             1
1550122.1
of seatbelts on buses). The information is footnoted for the convenience of the

Court.

            Founded in 1982, the NCCAOM is a voluntary, non-profit organization

whose mission is to assure the safety and well-being of the public and advance the

professional practice of acupuncture through the establishment and promotion of

national, evidence-based standards of competence and credentialing. 2 NCCAOM

is the only national organization that validates entry-level competency in the

practice of acupuncture and Oriental medicine and it is widely accepted as the most

influential leader in certification and testing for acupuncture and Oriental medicine

in the nation. 3

            NCCAOM pursues its goals through detailed educational, ethical, and

examination requirements.          This includes a Master-level degree from an

educational institution accredited by the Accreditation Commission for

Acupuncture and Oriental Medicine (“ACAOM”), which itself requires in excess

of 1900 hours of coursework, completion of a qualified apprenticeship program

requiring, among other things, at least 3,000 patient contact hours, or a




2
        History and Overview, Nat’l Cert. Comm’n for Acupuncture and Oriental Med.,
http://www.nccaom.org/about/history.
3
        About Us Home, Nat’l Cert. Comm’n for Acupuncture and Oriental Med.,
http://www.nccaom.org/about/ about-us-home.

                                             2
1550122.1
combination of the two. 4 Additionally, applicants for NCCAOM certification must

take and pass a series of examinations.5

            Ninety-eight percent of all states that regulate the practice of acupuncture,

including Texas (see 22 Tex. Admin. Code § 183.4(a)(5)), require NCCAOM

examinations or full certification as a prerequisite for licensure.6             There are

currently in excess of 17,000 certified NCAAOM diplomates throughout the

United States, including approximately 768 actively practicing in Texas.7 Texas

acupuncturists can also meet their continuing acupuncture education requirements

by completing NCAAOM approved courses.                      22 Tex. Admin. Code §

183.20(b)(1)(D).

            Historically, acupuncture derives from traditional Chinese medicine.              It

began to become popularized in the United States at some point after President

Richard Nixon’s visit to China in 1972. Its use as an alternative form of medicine

became sufficiently widespread that, today, it is regulated in some form in most

states, including Texas. The sole mission of the NCCAOM is to establish, assess




4
        2015 NCCAOM Certification Handbook, pp. 4, 18, 20, 22-26-31.The Certification
Handbook is readily available and accessible on the NCAAOM’s website at
http://www.nccaom.org/applicants/handbook-and-applications.
5
        Id. at p. 20.
6
        History and Overview, Nat’l Cert. Comm’n for Acupuncture and Oriental Med.,
http://www.nccaom.org/about/history.
7
        State Licensure Requirements, Nat’l Cert. Comm’n for Acupuncture and Oriental Med.,
http://www.nccaom.org/regulatory-affairs/state-licensure-map.

                                              3
1550122.1
and promote recognized standards of competence and safety in acupuncture and

related Oriental medicine for the protection and benefit of the public.

II.         THE   LEGISLATURE’S  TRAINING  AND    REGULATORY
            REQUIREMENTS FOR THE PRACTICE OF ACUPUNCTURE
            SHOULD DETERMINE THE OUTCOME OF THIS APPEAL

            The statements in the TBCE’s brief to the effect that, in interpreting relevant

statutory provisions, this Court does not or should not give consideration to the

public health risk of persons practicing acupuncture without sufficient training,

have no merit whatever. (See TBCE Br. 41-42.) In the view of the NCCAOM,

just the opposite is true: it is the training and regulatory requirements that the

Texas Legislature has explicitly seen fit to apply to the practice of acupuncture that

should dictate the outcome of this appeal.

            This case involves the proper construction of language in two provisions of

the Texas Occupations Code, section 205.001(2) of the Acupuncture Chapter and

sections 201.002(a)(3) and (b)(2) of the Chiropractors Chapter.               The proper

construction, in turn, requires application of Chapter 311 of the Government Code,

otherwise referred to as the Code Construction Act. See Tex. Occ. Code § 1.002

(applying Chapter 311 to the Occupations Code). Chapter 311 sets forth multiple

factors to be considered when a court is engaging in statutory construction. As an

initial matter it creates a basic presumption for the enactment of any statute that “a

just and reasonable result is intended” and that the “public interest is favored over

                                               4
1550122.1
any private interest.” Tex. Gov’t Code § 311.021(3), (5). With respect to actually

construing a statute, Chapter 311 then authorizes courts to consider not only the

“legislative history,” but also the “consequences of a particular construction” and

other “laws on the same or similar subjects.” Id. § 311.023(3), (4), (5).

            The NCCAOM, of course, agrees with the TAAOM concerning the

legislative history of the amendments to section 205.001(2). See TAAOM Op. Br.

9-12. With due consideration for “laws on the same subject,” moreover, the

NCCAOM fails to see how the amendments to the Acupuncture Chapter could

possibly have any bearing whatever on the scope of chiropractic when the

Acupuncture Chapter explicitly states that it does not apply to other health care

professionals licensed under another statute of the state and acting within the scope

of the license. Tex. Occ. Code § 205.003(a); see also id. (Medical Practice Act) §

151.052(a)(3). Aside from those preliminary points, however, the public interest

presumption, consideration of the “consequences” of the TBCE’s proposed

statutory construction, and other relevant factors require that such construction be

rejected.

            The training and regulatory standards for the practice of acupuncture that the

TBCE brushes aside as irrelevant, provide the starting point for the proper statutory

analysis. The following chart summarizes some of the disparities that result in the

practice of acupuncture in Texas under the TCBE’s interpretation:


                                               5
1550122.1
                                   Acupuncture                  Acupuncture
                                   Requirements for             Requirements for
                                   Acupuncture                  Chiropractors
                                   Practitioners
1. Texas Occupations
Code
                                   Acupuncture training         Acupuncture training
                                   hours:                       hours:

                                   1800 instructional hours     No instructional hours for
                                   at a reputable acupuncture   acupuncture specified.
                                   school. Tex. Occ. Code §     Education is left entirely
                                   205.206(a)(1)                to the TBCE. Tex. Occ.
                                                                Code § 201.1525

                                   Acupuncture training         Acupuncture training
                                   subjects:                    subjects:

                                   Training must include      No instruction in
                                   instruction in acupuncture acupuncture meridian and
                                   meridian and point         point locations required.
                                   locations. Tex. Occ.
                                   Code § 205.206(a)(3).

                                   Continuing education:        Continuing education:

                                   Continuing education as      No continuing education
                                   determined by the            in acupuncture required.
                                   TBAE. 8 § 205.255.

                                   Oversight of board           Oversight of board

                                   The TBAE acts pursuant The TBCE has no board
                                   to the advice and approval or agency providing
                                   of the Texas Medical oversight.
                                   Board. Tex. Occ. Code §
                                   205.101(a).


8
            Texas Board of Acupuncture Examiners.

                                                6
1550122.1
2. Texas Administrative
Code
                                   Acupuncture                    Acupuncture
                                   accreditation:                 accreditation:

                                   Graduation from           No accredited
                                   acupuncture school        acupuncture school
                                   accredited (or candidate  training required.
                                   for accreditation) by the
                                   ACAOM. 9 22 Tex.
                                   Admin. Code §§ 183.2(2),
                                   183.4(4).

                                   Acupuncture         training Acupuncture         training
                                   hours:                       hours:

                                   The ACAOM in turn              100 hours training “in the
                                   requires 1905 hours (105       use and administration of
                                   semester credits) for any      acupuncture” by a
                                   acupuncture program, or        chiropractic school or an
                                   2625 hours (146 semester       acupuncture school. 22
                                   credits) for any oriental      Tex. Admin. Code §
                                   medicine program               78.14(b)(1)-(3), (d). See
                                   including acupuncture, as      also entry directly below.
                                   reflected on the
                                   NCCAOM website.10

                                   Acupuncture exam:              Acupuncture exam:

                                   Successful taking of the       Successful taking of the
                                   NCCAOM exam,                   NBCE11 exam or the
                                   following compliance           NCCAOM exam.        The
                                   with the eligibility           NBCE exam requires as a
                                   requirements shown             prerequisite only “100
                                   directly above. 22 Tex.        hours of instruction in
                                   Admin. Code §                  acupuncture” from a

9
            Accreditation Commission for Acupuncture and Oriental Medicine.
10
            See http://www.nccaom.org/applicants/eligibility-requirements.
11
            National Board of Chiropractic Examiners.

                                                 7
1550122.1
                               183.4(a)(5)                    chiropractic college, as
                                                              reflected on the NBCE
                                                              website. 12

                               Clean needle training:         Clean needle training:

                               Successful taking of the None required.
                               CCAOM 13 clean needle
                               technique course and
                               practical examination. 22
                               Tex. Admin. Code §
                               183.4(a)(6).

                               Continuing education:          Continuing education:

                               17 hours of continuing     None      required             in
                               acupuncture education      acupuncture.
                               required each year, with
                               at least 8 hours dedicated
                               to “overall acupuncture
                               knowledge, skills, and
                               competence.” 22 Tex.
                               Admin. Code § 183.20(b).

3. College/University
Requirements
                               Acupuncture course             Acupuncture course
                               instruction:                   instruction:

                               American College of            Parker University 16:
                               Acupuncture14: 20              “Doctor of Chiropractic
                               required semester credits      Catalog” does not
                               (330 total hours) of           reference acupuncture as
                               acupuncture classroom          part of required
                               instruction (i.e., in          curriculum, and mentions

12
       See http://mynbce.org/prepare/acupuncture.
13
       Council of Colleges of Acupuncture and Oriental Medicine.
14
       The American College of Acupuncture & Oriental Medicine is located at 9100 Park West
Drive, Houston, Tex.

                                             8
1550122.1
                                     addition to clinical             it in passing as a
                                     training, see entry below)       “continuing education”
                                     for degree leading to            course.17 The university’s
                                     acupuncture license. 15          2015-16 Academic
                                                                      Catalog lists only one
                                                                      acupuncture course, of 32
                                                                      total hours.18

                                     Acupuncture clinical             Acupuncture clinical
                                     training:                        training:

                                     American College of              Parker University: none
                                     Acupuncture: 30 required         referenced in the “Doctor
                                     semester credits (1020           of Chiropractic Catalog”
                                     total hours) of clinical         for acupuncture.
                                     training for degree
                                     leading to acupuncture
                                     license.19


As plainly illustrated above, the TBCE’s proposed interpretation of the

Acupuncture Chapter amendments creates a severe statutory inconsistency in

standards for acupuncture as between licensed acupuncturists and chiropractors, in

violation of virtually every rule of statutory construction.




16
            Parker University School of Chiropractic is located at 2540 Walnut Hill Lane, Dallas,
Tex.
15
       See 2015-16 Catalog of, at: https://acaom.edu/attachments/Catalog.pdf, pp. 16-18.
17
       See http://parker.edu/wp-content/uploads/2014/09/Doctor-of-Chiropractic- Catalog-2014-
2015.pdf, pp. 38, 65-67.
18
       See http://parker.edu/admissions-aid/course-catalogs-handbook/, p. 237.
19
       See 2015-16 Catalog of the American College of Acupuncture & Oriental Medicine,
located at 9100 Park West Drive, Houston, Tex., at: https://acaom.edu/attachments/Catalog.pdf,
pp. 16-18.

                                                    9
1550122.1
            A.    No Intention to Reduce Training Standards Applicable to the
                  Practice of Acupuncture Appears in the Legislation or Its History

            Returning for a moment to legislative history, no evidence exists of record

that, in amending the Acupuncture Chapter, the Texas Legislature at any time

evaluated the adequacy of training of chiropractors to perform acupuncture in a

clinical setting. No inference therefore can arise from the amending language that

the Legislature intended to expand the scope of chiropractic in such a manner as to

nullify the generally applicable training standards already in place for the practice

of acupuncture in Texas. Just to be clear, the issue from a legislative history

perspective is not whether the Legislature could have decided to apply one set of

acupuncture training standards to apply to persons licensed under the Acupuncture

Chapter, and a much lower set of standards to apply to persons licensed under the

Chiropractors Chapter, if it had used more precise or comprehensive language.

Rather, the issue is whether the Legislature, through the sparsely-worded

“circuitous” legislation enacted (TBCE Br. 29), actually accomplished that result.

Given the carefully-designed scope of training the Legislature has required for the

practice of acupuncture for decades, the TBCE’s argument that the amendment

altered the training requirements for certain practitioners of acupuncture is

nonsense.




                                             10
1550122.1
            B.   No Intention to Eliminate Texas Medical Board Regulatory
                 Oversight Appears in the Legislation or Its History

            Construing the amendment to section 205.001(2) of the Acupuncture

Chapter as opening up the practice of acupuncture to chiropractors not only creates

a huge disparity in the training applicable to different categories of acupuncture

practitioners. It also removes the acupuncture profession from the oversight of the

Texas Medical Board. Guidance and input from the Texas Medical Board has

always been an important aspect of the practice of acupuncture in Texas, lending

expertise, professional standards, and credibility to the profession. Thus, the Texas

State Board of Acupuncture Examiners (“Acupuncture Board”), by statute,

includes two physician members; the Acupuncture Board’s powers and duties are

exercised only with the “advice and approval” of the Texas Medical Board; all

rules promulgated by the Acupuncture Board must be approved by the Texas

Medical Board; and licensed acupuncturists remain within the overall jurisdiction

of the Texas Medical Practice Act. See Tex. Occ. Code §§ 151.052; 205.001(7),

(8); 205.051(a)(2); 205.101(a), (b).

            The TBCE and its chiropractic licensees, by contrast, operate entirely

outside the Medical Practice Act and independent of licensed physicians and the

Texas Medical Board. See Tex. Occ. Code §§ 151.052(a)(3); 201.051, 201.151,

201.152. No legislative history, and certainly no express legislative amendments,

provide a basis for concluding that the kind of radical change in regulatory

                                           11
1550122.1
oversight for the acupuncture profession as advocated by the TBCE, has been

accomplished.

            C.    The TBCE’s Position Creates Disharmony by Producing
                  Disparity in Standards Applicable to Acupuncture Practice

            The inconsistency in acupuncture training and regulatory oversight standards

that result from the TBCE’s proposed interpretation undermines one of the very

principles of statutory construction on which it relies to justify its position. The

TBCE contends that the “nonsurgical, nonincisive” language from the

Acupuncture Chapter (§ 205.001(2)) and the “nonsurgical, nonincisive” language

from the Chiropractors Chapter (§ 201.002(b)(2)) should be read in pari materia

with a view to “harmoniz[ing]” the two chapters. (TBCE Br. 26-29.) The doctrine

of in pari materia, as the TBCE notes, has the purpose of “harmonizing” statutory

provisions that appear in different statutes “if possible.” See Burke v. State, 28

S.W.3d 545, 546-47 (Tex. Crim. App. 2000) (quoting case) (cited by TBCE, p.

26). The TBCE’s interpretation, however, does just the opposite: it creates a

major rift between two chapters of the Occupations Code with respect to training

and regulatory requirements for the practice of acupuncture. Adopting the TBCE’s

proposal thus does nothing at all to achieve harmony and, in fact, violates the very

purposes of the in pari materia doctrine.




                                             12
1550122.1
            Of course, other considerations also require the rejection of the TBCE’s in

pari materia analysis. The three cases it cites illustrate the point as well as any.

(See TBCE Br. 26.) In each of them, the court rejected application of the doctrine

because the statutes involved had different purposes. DLB Architects, P.C. v.

Weaver, 305 S.W.3d 407 (Tex. App. – Dallas 2010, pet. denied) (holding that

“architect” as appearing in the Civil Practice Code and as appearing in the

Occupations Code would not be construed in pari materia light of the different

purposes of the two codes); In re J.M.R., 149 S.W.3d 289, 294 (Tex. App. – Austin

2004, no pet.) (holding that “trespass” as contained in the Penal Code and as

contained in the Education Code had different meanings and purposes); Burke, 28

S.W.3d at 548-49 (finding that the term “assault” as appearing in different sections

of the Penal Code “don’t apply to the same class of people, were designed to serve

different purposes, appear in different chapters of the Code, and were not

apparently intended to be considered together”).

            Similarly, here, the Acupuncture Chapter and the Chiropractors Chapter of

the Occupations Code have very different purposes.             One regulates licensed

acupuncturists with input from the Texas Medical Board. The other regulates

licensed chiropractors through a stand-alone regulatory authority. The two do not

overlap in any material way. The references to chiropractic in the Acupuncture

Chapter, for example, are limited to referrals that an acupuncturist might treat for


                                             13
1550122.1
specified conditions.        See §§ 205.301(a)(2), 205.302(a).    The fact that the

Legislature contemplated that a chiropractor might make referrals to an

acupuncturist, in and of itself, suggests an intention to maintain a separation

between the two professions. The Chiropractors Chapter, by comparison, makes

no reference at all to acupuncture.

            In sum, the two chapters in the Occupations Code have different purposes

and are not an appropriate subject for application of the in pari materia doctrine.

If the doctrine were nevertheless to be applied, the TBCE’s approach of focusing

on isolated words should be rejected because it results in greater disharmony

between the chapters, not greater accord. Greater accord is achieved only by

limiting the practice of acupuncture to the standards set forth in the Acupuncture

Chapter.

            D.   The TBCE’s Proposed Interpretation Contravenes the Public
                 Interest

            Finally, no conceivable public health interest will be served by the

application of widely disparate training and regulatory standards to, on the one

hand, acupuncture as practiced by licensed acupuncturists, and, on the other,

acupuncture as practiced by chiropractors. The Medical Practice Act reflects the

Legislature’s long-standing finding that the regulation of the “practice of

medicine” is “necessary to protect the public interest.” Tex. Occ. Code § 151.003.



                                           14
1550122.1
That interest is only served by consistently high standards of practice. One federal

court in Texas observed as follows:

            Th[e] right of a State to regulate under its police powers all aspects of
            the practice of medicine and thereby help provide for the general
            health and welfare of its citizens is of such vast importance as to
            approach the status of a duty. Nothing is more fundamental than the
            rights of the various States to furnish the people competent health
            services and as a direct corollary to this right they have a
            corresponding duty to carefully prescribe minimum requirements for
            the licensing of those administering medical and surgical services.
            This is a highly specialized field of experts daily dealing with the
            very lives of the citizenry and the State must, therefore, insure as
            best it can the competency of these experts.
Garcia v. Tex. State Bd. of Med. Examiners, 384 F. Supp. 434, 437 (W.D. Tex.

1974) (emphasis added).

            As mentioned earlier, the practice of acupuncture in Texas remains subject

to the Medical Practice Act and, unlike chiropractic, is included within the

“practice of medicine.”            See Tex. Occ. Code § 151.052(a)(3) (excluding

chiropractic).20        The TBCE’s position, which results in significantly relaxed

standards for chiropractors, creates a two-tiered approach to the practice of

acupuncture. In doing so it violates the public trust not just by lowering standards

but also by permitting acupuncture to be practiced by persons outside the practice

of medicine. As noted by one Texas court:

20
         “Practicing medicine” is defined in the Act to include “the diagnosis, treatment, or offer
to treat a mental or physical disease or disorder or physical deformity or injury by any system or
method . . . by a person who . . . directly or indirectly charges money or other compensation for
those services.” Tex. Occ. Code § 151.002(13).

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            We hold that it is properly within the power of the [Texas Medical
            Board] to regulate acupuncture as the practice of medicine. In our
            opinion the State of Texas and the [Medical Board] would betray
            their public trust to permit unlicensed persons to practice medicine.

Thompson v. Texas State Board of Medical Examiners, 570 S.W.2d 123, 130 (Tex.

App. – Tyler 1978, writ refused n.r.e.) (emphasis added).

            A disparity in education and training requirements is a common

consideration when passing upon issues related to regulation of the healing arts.

For example, in Gandee v. Glaser, 785 F. Supp. 684, 686-87 (S.D. Ohio 1992), two

properly licensed hearing aid dealers challenged on constitutional grounds Ohio

regulations that prohibited them from advertising themselves to the public as

audiologists. In upholding application of the regulations, the court found that it

would be deceptive and misleading for the hearing aid dealers to hold themselves

out as audiologists because of the vast differences in the educational requirements

associated with each title. Id. at 689. In particular, the only qualifications for a

hearing aid dealer under the regulations were that the person “be at least 18 years

of age, of good moral character, free of contagious or infectious diseases, and . . .

pass an examination specified and administered by the hearing aid dealers and

fitters licensing board.”       Id. at 690.    In contrast, licensed audiologists were

required to have a college degree with least 60 hours of college-level coursework

devoted to “the normal aspects of human communication, development and

disorders thereof,” complete at least 300 hours of supervised clinical experience,

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and obtain at least nine months of professional experience with a minimum of 30

hours of clinical experience per week. Id. at 690-91. Under these circumstances,

according to the court, allowing hearing aid dealers to use the term “audiologist” to

describe themselves “is likely to materially deceive or mislead consumers as to

the dealer’s educational level” and “it is likely that consumers would find the

educational level of such an individual an important consideration.” Id. (emphasis

added).

            Other similar holdings include Lucas v. Maine Comm’n of Pharmacy, 472

A.2d 904, 907 (Me. 1984) (holding that licensing board evaluating reciprocity

application properly considered “educational requirements as one critical measure

to compare the competency required for original pharmacist registration” as

between the two states); Howe v. Smith, 199 A.2d 521, 525 (Pa. 1964) (holding the

“significant difference in the education and training required” between the practice

of medicine and the practice of chiropractic justified state regulatory agency from

rejecting physical fitness certificates completed by chiropractors).

            The reasoning of Gandee applies directly to the reasonableness of the

interpretation of the amendments in section 205.001(2) of the Acupuncture

Chapter. Construing the amendments as creating a two-tiered qualification system

for persons administering acupuncture treatment results in not just a likely

endangerment of the public health and safety, but also a deception of the public


                                          17
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with respect to the credentials and education of those providing the treatment. No

such intention should be attributed to the Legislature. Perez v. City of Laredo, 82

S.W.3d 605, 608 (Tex. App. – San Antonio 2002) (stating that “a court must

consider the consequences that would follow from its construction of a statute and

avoid absurd results”). The only reasonable interpretation, and the one consistent

with the public interest, is that the amendments provide no authority whatever for

non-licensed acupuncturists to practice acupuncture.

                                     CONCLUSION

            In the NCCAOM’s view, the risk to the public health interest arising from

diminished training and regulatory standards in the practice of acupuncture is not

just a concern, but the major concern in this Court’s construction of the

amendments to section 205.001(2) of the Acupuncture Chapter.              The Texas

Legislature and Texas Medical Board appear to have taken these concerns into

account when setting the specific educational and training requirements for a

person to become licensed in acupuncture.            Construing the amendments to

authorize chiropractic practice of acupuncture is inconsistent with the educational

and regulatory regime already well-established for the practice of acupuncture.

Such a construction also disfavors the public interest and results in a major

disparity as between the Acupuncture and Chiropractic Chapters.




                                            18
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            The trial court judgment therefore should be reversed.

                                            Respectfully Submitted

                                            By: /s/ Don R. Sampen
                                            One of the Attorneys for NCCAOM

Don R. Sampen
Mark J. Sobczak
Clausen Miller, P.C.
10 S. LaSalle St., 16th Fl.
Chicago, IL 60603
312-606-7803




                                              19
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                          CERTIFICATE OF COMPLIANCE

            Amicus Curia NCCAOM certifies that this amicus brief (when excluding the

caption, identity of parties and counsel table of contents, index of authorities,

signature, proof of service, and certificate of compliance) contains 3,762 words.



                                                  /s/ Don R. Sampen




                             CERTIFICATE OF SERVICE

            I hereby certify that, on November 20, 2015, the foregoing Corrected Brief

of Amicus Curiae National Certification Commission for Acupuncture and

Oriental Medicine was served via electronic service on the following:

            Joe H. Thrash                              Craig T. Enoch
            Assistant Attorney General                 Melissa A. Lorber
            Administrative Law Division                Shelby O’Brien
            P.O. Box 12548                             Enoch Kever PLLC
            Austin, Texas 78711                        600 Congress Ave, Suite 2800
            Joe.Thrash@texasattorneygeneral.gov        Austin, Texas 78701
                                                       cenoch@enochkever.com
                                                       sobrien@enochkever.com


                                                  /s/ Don R. Sampen




                                            20
1550122.1
