                                                                                     ACCEPTED
                                                                                 03-15-00262-CV
                                                                                         7959373
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           11/23/2015 5:10:56 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK

                  No. 3-15-00262-CV
                                                               FILED IN
                                                        3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                       In the Court of Appeals          11/23/2015 5:10:56 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 SECOND 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
      Shortly on the heels of filing a first motion to strike all citations to the

internet found in the Acupuncture Association’s opening brief, the Chiropractic

Board has filed a Second Motion to Strike, this time asking this Court to strike

portions of five briefs submitted by amicus curiae. Appellant Texas Association of

Acupuncture and Oriental Medicine (“Acupuncture Association”) respectfully asks

the Court to deny the Chiropractic Board’s Second Motion to Strike.

      An amicus curiae, or “friend of the court,” is “[a] person who is not a party

to a lawsuit but who petitions the court or is requested by the court to file a brief in

the action because that person has a strong interest in the subject matter.” In re

A.J.L., 108 S.W.3d 414, 420 (Tex. App.—Fort Worth 2003, pet. denied) (quoting

BLACK’S LAW DICTIONARY 83 (7th ed. 1999)). “An amicus curiae is not a party to

the suit and may only make suggestions to the court.” Kelley v. Scott, No. 14-01-

00696-CV, 2003 WL 21229275, at *1 (Tex. App.—Houston [14th Dist.] May 29,

2003, no pet.). Thus, amicus briefs have not traditionally been limited to only

arguments made by, or the record provided by, the parties.

      The Chiropractic Board objects to eleven citations, most of which are to

internet websites, arguing that these references “cite factual material outside the

record” and thus represent an impermissible attempt to expand the record on

appeal. See Chiropractic Board’s Second Motion, at 1. The Chiropractic Board’s

arguments are similar to those raised in its first motion to strike, and should be



                                           2
rejected for the reasons stated in the Acupuncture Association’s response to that

motion. In addition, this Court should deny the Chiropractic Board’s Second

Motion to Strike for the following reasons.

          The amicus briefs at issue were submitted by two schools and three

professional associations. Many of the challenged citations point the Court to the

official policy statements of each of these entities.1 It is unclear how these

documents fall outside the scope of amicus briefing, given that the very purpose of

amicus briefing is to allow an interested entity to identify itself, its interest in, and

its position on issues before the Court. Indeed, the Supreme Court of Texas

encourages amici to “describ[e] in concrete terms how a particular outcome will

adversely affect amic[i] and others similarly situated.”2 The five amici here have

followed this guideline by (1) pointing the Court to their respective definitions of

acupuncture and chiropractic medicine,3 and (2) using web content to illustrate

how the Chiropractic Board’s statutory interpretation will affect practitioners and

prospective patients.4



1
    See Chiropractic Board’s Second Motion to Strike, at 1-2 (objections 1, 2, 3a, 3b, 4a).
2
 BLAKE A. HAWTHORNE, CLERK, THE SUPREME COURT OF TEXAS, SUPREME COURT INTERNAL
OPERATING PROCEDURES (2015), available at http://www.txcourts.gov/media/1047308/internal-
operation-procedures-2015-appendix.pdf.
3
    See Chiropractic Board’s Second Motion to Strike, at 1-2 (objections 1, 2, 3a, 3b, 4a).
4
    See id., at 1-2 (objections 3d, 4a, 5a, 5b).




                                                   3
          The Chiropractic Board objects to several references to certification

standards and best practices because those standards and practices are not part of

the record on appeal.5 Yet the Chiropractic Board has not provided any authority

for the proposition that an amicus brief may only incorporate facts of record.

Further, the Chiropractic Board has not identified even one case in which a court of

appeals struck an amicus brief for any reason—much less for the inclusion of

undeniably relevant information. The Chiropractic Board likely lacks authority on

this point because amici are not constrained to materials of record. To the contrary,

amicus briefing exists “to insure that [the] court [is] furnished with as much

relevant information as possible.” Little v. Little, 576 S.W.2d 493, 494 (Tex. Civ.

App.—San Antonio 1979, no writ). For that reason, amici prove helpful by

providing additional context for the issues before the Court. Indeed, the Attorney

General himself routinely incorporates new information when filing briefs as

amicus.6

          Moreover, the Supreme Court relies on amicus briefs irrespective of whether

those briefs constrain themselves to the record. See generally Little v. Tex. Dep’t of


5
    See id., at 1-2 (objections 3c, 4a, 4b, 4c).
6
 E.g., Brief of Amicus Curiae the State of Texas, at 8, Matthews v. Kountze Ind. Sch. Dist., No.
14-0453,            (Tex.           Sept.         25,        2015)        available           at
https://www.texasattorneygeneral.gov/files/epress/files/2015/Amicus_Brief_Matthews_v_Kount
ze.pdf (citing to internet archive of school board minutes).




                                                   4
Criminal Justice, 148 S.W.3d 374 (Tex. 2004). Little involved a disability

accommodation dispute between an employer and an employee with a prosthetic

leg. Id. at 275. A group of disability advocates submitted an amicus brief

introducing a wealth of additional information about prosthetic devices, none of

which had been introduced by the parties to the case. Id. at 381. Not only did the

Supreme Court not find the brief objectionable, the Court quoted from the brief in

its unanimous opinion. Id. There is simply no support for the Chiropractic Board’s

argument that an amicus must constrain itself to the record, and there is no cause to

strike the challenged portions of the amicus briefs. See TEX. R. APP. P. 11.

                                      PRAYER

      Appellant Texas Association of Acupuncture and Oriental Medicine

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

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

deems appropriate at law or equity.




                                          5
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




  6
                         CERTIFICATE OF SERVICE

      I hereby certify that, on November 23, 2015, the Acupuncture Association’s

Response to the Chiropractic Board’s Second 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

Matthew M. Mix D.C.
Chiropractic Society of Texas
312 E. Church St.
Livingston, TX 77351
info@texaschiropractic.org

John Paul Liang
American College of Acupuncture and Oriental Medicine
9100 Westpark Dr.
Houston, TX 77063
jpliang@acaom.edu

William R. Morris
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
wmorris@aoma.edu

Linda Henderson
9100 Westpark Dr.
Houston, TX 77603
lhenderson@acaom.edu




                                       7
Gene Kuntz II
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
gkuntz@student.aoma.edu


                                         /s/ Craig T. Enoch
                                        Craig T. Enoch




                                    8
