                                                                                        ACCEPTED
                                                                                    03-14-00774-CV
                                                                                            5976703
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                               7/8/2015 11:22:47 AM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                         NO. 03-14-00774-CV
        ____________________________________________________
                                                          FILED IN
                                                   3rd COURT OF APPEALS
                 IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
                         AT AUSTIN, TEXAS          7/8/2015 11:22:47 AM
        ____________________________________________________
                                                     JEFFREY D. KYLE
                                                           Clerk
TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS, and
    NICOLE ORIA, in Her Official Capacity as Executive Director
                                         Appellants/Cross-Appellees,
                               v.

                      ELLEN JEFFERSON, D.V.M.,
                                               Appellee/Cross-Appellant.
       ____________________________________________________
  On Appeal from the 127th Judicial District Court of Travis County, Texas
                       Cause No. D-1-GN-14-000287
                The Honorable Gisela D. Triana presiding
        _________________________________________________

 BRIEF OF APPELLANTS/CROSS APPELLEES TEXAS STATE BOARD
OF VETERINARY MEDICAL EXAMINERS AND NICOLE ORIA, IN HER
        OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR
      ____________________________________________________

KEN PAXTON                           TED A. ROSS
Attorney General of Texas            Assistant Attorney General
                                     State Bar No. 24008890
CHARLES E. ROY                       OFFICE OF THE TEXAS ATTORNEY
First Assistant Attorney General     GENERAL
                                     ADMINISTRATIVE LAW DIVISION
JAMES E. DAVIS                       P.O. Box 12548
Deputy Attorney General for          Austin, Texas 78711-2548
Civil Litigation                     Telephone: (512) 475-4191
                                     Facsimile: (512) 457-4674
DAVID A. TALBOT, JR.                 Email: ted.ross@texasattorneygeneral.gov
Chief, Administrative Law Division   Attorneys for Appellants/Cross-Appellees


ORAL ARGUMENT CONDITIONALLY REQUESTED                     July 8, 2015
                                        TABLE OF CONTENTS

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

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

RECORD AND PARTY REFERENCES ............................................................... iv

STATEMENT OF THE CASE ..................................................................................v

REQUEST FOR ORAL ARGUMENT ................................................................... vi

ISSUES PRESENTED FOR REVIEW ................................................................... vi

STATEMENT OF FACTS ........................................................................................2

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

ARGUMENT .............................................................................................................4

I.       STANDARD OF REVIEW .............................................................................4

II.      REGULATORY BACKGROUND .................................................................5

III.     DR. JEFFERSON’S APA RULE CHALLENGE IS WITHOUT MERIT .....6

         A.       Both rules are consistent with the Act, including the “Ownership
                  Exemption.” ...........................................................................................7

CONCLUSION AND PRAYER .............................................................................10

CERTIFICATE OF COMPLIANCE .......................................................................12

CERTIFICATE OF SERVICE ................................................................................12




                                                           ii
                                    INDEX OF AUTHORITIES


Cases

Dodd v. Meno, 870 S.W.2d 4 (Tex. 1994) .................................................................5

Reliant Energy, Inc. v. Public Util. Comm’n of Tex., 62 S.W.3d 833
      (Tex. App.—Austin 2001, no pet.) ..................................................................5

Tex. Dep’t of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715
      (Tex. App—Austin 1992, writ denied)............................................................6

Tex. Orthopaedic Ass’n v. Tex. State Bd. of Med. Exam’rs, 254 S.W.3d 714
      (Tex. App.—Austin 2008, pet. denied) .......................................................4, 5


Statutes

Tex. Civ. Prac. & Rem. Code § 37.001 .....................................................................3

Tex. Gov’t Code § 2001.038......................................................................................3

Tex. Gov’t Code § 801.004(1) ...............................................................................7, 8

Tex. Occ. Code § 801.151 .........................................................................................5

Tex. Occ. Code § 801.151(b) .....................................................................................6

Tex. Occ. Code § 801.151(c)(1) ............................................................................5, 6

Tex. Occ. Code §§ 801.402(4), (6), (12), (13), (16) ..................................................6


Rules

22 Tex. Admin. Code § 573.72 ........................................................................ passim

22 Tex. Admin. Code § 573.80(2) ................................................................... passim


                                                        iii
                   RECORD AND PARTY REFERENCES

The clerk’s record will be referred to as “CR ____.”

The supplemental clerk’s record will be referred to as “Supp. CR ___.”

Appellants/Cross-Appellees, the Texas State Board of Veterinary Medical
Examiners, and Nicole Oria in Her Official Capacity as Executive Director, will be
collectively referred to as the “Board” unless otherwise designated.

Appellee/Cross-Appellant, Ellen Jefferson, D.V.M., will be referred to as
“Dr. Jefferson.”




                                        iv
                          STATEMENT OF THE CASE

      Dr. Jefferson filed the underlying district court suit, requesting declaratory

and injunctive relief with respect to a pending Board disciplinary proceeding and

various Board rules. CR 4. She then filed an amended petition wherein she asserted

a number of challenges to the Board’s rules, two of which are at issue in this

interlocutory appeal. CR 186.

      The Board filed a plea challenging the district court’s subject matter

jurisdiction over Dr. Jefferson’s rule challenge, as well as her claims under the Texas

Uniform Declaratory Judgment Act (“UDJA”). CR 67.

      The district court carried the Board’s plea with the trial of Dr. Jefferson’s other

claims. After trial, the court issued a judgment granting the Board’s plea with

respect to Dr. Jefferson’s UDJA claims, and denying the Board’s plea regarding her

rule challenge. CR 855. See also Exhibit 1. The court ruled that it had jurisdiction

over Dr. Jefferson’s rule challenge and went on to uphold the validity of the Board

rules in question, with the exception of Board Rules 573.72 and 573.80(2). 22 Tex.

Admin. Code §§ 573.72; 573.80(2). Id.

      The Board then timely filed this interlocutory appeal of the denial of its plea

on the rule challenge and the Court’s invalidation of Board Rules 573.72 and

573.80(2). Suppl. CR 3.




                                           v
      Dr. Jefferson thereafter filed a counter-appeal regarding the dismissal of her

UDJA claims. Suppl. CR 5.

            CONDITIONAL REQUEST FOR ORAL ARGUMENT

      The issues related to Dr. Jefferson’s rule challenge are purely legal in nature,

and the Board therefore does not believe that oral argument would assist the Court

with respect to those issues. However, the Board reserves the right to oral argument

should it be granted.

                        ISSUES PRESENTED FOR REVIEW

      Are Board rules 573.72 and 573.80(2) consistent with the “Ownership

Exemption” in the Veterinary Practice Act?




                                         vi
                          NO. 03-14-00774-CV
         ____________________________________________________

                  IN THE THIRD COURT OF APPEALS
                          AT AUSTIN, TEXAS
         ____________________________________________________

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS, and
    NICOLE ORIA, in her Official Capacity as Executive Director
                                         Appellants/Cross-Appellees,
                               v.

                      ELLEN JEFFERSON, D.V.M.,
                                               Appellee/Cross-Appellant.
       ____________________________________________________
  On Appeal from the 127th Judicial District Court of Travis County, Texas
                       Cause No. D-1-GN-14-000287
                The Honorable Gisela D. Triana presiding
        _________________________________________________

 BRIEF OF APPELLANTS/CROSS APPELLEES TEXAS STATE BOARD
OF VETERINARY MEDICAL EXAMINERS AND NICOLE ORIA, IN HER
        OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR
      ____________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellants/Cross-Appellees, the Texas State Board of Veterinary Medical

Examiners, and Nicole Oria, in Her Official Capacity as Executive Director

(hereinafter collective referred to as the “Board” unless otherwise designated), by

and through the Office of the Attorney General of Texas and the undersigned

Assistant Attorney General, submit the following brief in the captioned appeal.
                           STATEMENT OF FACTS

      1.     Dr. Jefferson holds a license to practice veterinary medicine in Texas.

CR 5, ¶ 1.

      2.     Dr. Jefferson is the founder and chief executive officer of San Antonio

Pets Alive! (“SAPA”), a “no-kill” animal shelter located in San Antonio, Texas. Id.

      3.     On November 23, 2012, the Board received a complaint from a foster

care provider about Dr. Jefferson’s conduct related to a three-year old female

German Shepherd named Starlight, who had been fostered out by SAPA. CR 56.

The complaint asserted several allegations about Dr. Jefferson’s diagnoses of

Starlight. CR 56-61. The complaint also alleged that drugs Dr. Jefferson prescribed

for Starlight’s care were not properly administered, but were instead left on a SAPA

volunteer’s front porch without proper labeling. CR 59.

      4.     After an informal settlement conference, review by the Board’s

enforcement committee, and written notice to Dr. Jefferson, the Board filed a notice

of hearing at the State Office of Administrative Hearings (“SOAH”), alleging

violations of Chapter 801 of the Texas Occupations Code and administrative rules.

CR 53-63. In particular, the Board alleges that Dr. Jefferson:

•     failed to establish a veterinary client patient relationship prior to diagnosing
      and treating Starlight and prior to prescribing and dispensing medication;

•     failed to treat Starlight with the required minimum standard of care;


                                          2
•     failed to maintain proper patient records;

•     failed to properly label medication; and

•     engaged in a pattern of acts that indicate consistent malpractice, negligence,
      or incompetence in the practice of veterinary medicine.

Id.

      5.     Instead of proceeding with the Starlight complaint before SOAH,

Dr. Jefferson filed the underlying district court case, asserting claims for declaratory

relief under the Texas Uniform Declaratory Judgments Act (“UDJA”), as well as for

injunctive relief. CR 4. See Tex. Civ. Prac. & Rem. Code §§ 37.001, et seq. She

later filed an amended petition wherein she challenged several Board rules under the

Texas Administrative Procedure Act (“APA”), including the two rules in question

in this proceeding. CR 216-223. See Tex. Gov’t Code § 2001.038.

      6.     The Board filed a plea to the jurisdiction, which was carried with the

case to trial. CR 67.

      7.     After a bench trial held on August 4, 2014, the district court issued a

final judgment which granted the Board’s plea with respect to Dr. Jefferson’s UDJA

claims, and denying the Board’s plea regarding her rule challenge. CR 855; Exhibit

1. The court ruled that it had jurisdiction over Dr. Jefferson’s rule challenge and

went on to uphold the validity of the Board rules in question, with the exception of

Board Rules 573.72 and 573.80(2). Id.


                                           3
                       SUMMARY OF THE ARGUMENT

      Board Rules 573.72 and 573.80(2) are both within the Board’s express and

implied rulemaking authority granted by the legislature.

      Rule 573.72 does not apply to any licensed veterinary who can demonstrate

that he or she is subject to the Veterinary Practice Act’s “Ownership Exemption.”

The rule was simply adopted in order to prevent a licensed vet from hiding behind

the veil of a non-profit or municipal corporation in establishing one or more of the

criteria set forth in the exemption.

      Rule 573.80(2) is also consistent with the Ownership Exemption. The rule’s

definition of “designated caretaker” furthers the legislative purpose of ensuring that

non-veterinarians practicing veterinary medicine without a license cannot be exempt

from the Act, thus protecting the public from the unsafe practice of veterinary

medicine.

                                       ARGUMENT


I.    STANDARD OF REVIEW

      When determining whether a rule is valid, a court must ascertain whether the

rule is in harmony with the governing statutes and the general objectives of those

statutes. Tex. Orthopaedic Ass’n v. Tex. State Bd. of Med. Exam’rs, 254 S.W.3d

714, 719 (Tex. App.—Austin 2008, pet. denied). In making that determination, it is


                                          4
presumed that the rule is valid; the challenging party has the burden of proving

otherwise. Id., 254 S.W.3d at 722. Moreover, in deciding whether a rule exceeds

an agency’s rulemaking authority, the agency’s construction of its governing

statute(s) is entitled to “serious consideration” and “great weight” by a reviewing

court as long as the construction is reasonable and does not contradict the plain

language of the statute. Id., 254 S.W.3d at 719; Dodd v. Meno, 870 S.W.2d 4, 7

(Tex. 1994); Reliant Energy, Inc. v. Public Util. Comm’n of Tex., 62 S.W.3d 833,

838 (Tex. App.—Austin 2001, no pet.).

II.   REGULATORY BACKGROUND

      The Board is the state agency empowered to regulate the practice of veterinary

medicine in Texas. Tex. Occ. Code § 801.151. This includes the broad authority to

adopt rules to protect the public. Tex. Occ. Code § 801.151(c)(1). Among the

Board’s specific duties are the authority to discipline license holders for, among

other things, engaging in dishonest or illegal practices in, or connected with, the

practice of veterinary medicine or the practice of equine dentistry; engaging

practices or conduct that violates the Board’s rules of professional conduct;

performing or prescribing unnecessary or unauthorized treatment; ordering a

prescription drug or controlled substance for the treatment of an animal without first

establishing a veterinarian-client-patient relationship; and committing gross

malpractice or a pattern of acts that indicate consistent malpractice, negligence, or

                                          5
incompetence in the practice of veterinary medicine or the practice of equine

dentistry. Tex. Occ. Code §§ 801.402(4), (6), (12), (13), (16).

       It is within this broad authority afforded the Board by the legislature that the

rules in question must be examined.

III.   DR. JEFFERSON’S APA RULE CHALLENGE IS WITHOUT MERIT

       As an initial matter, the Board advises the Court that it is not contesting that

part of the district court’s final judgment which determines that the court had subject

matter jurisdiction over Dr. Jefferson’s rule challenges. CR 855; Exhibit 1.

       However, the Board does contend that the judgment invalidating Board rules

573.72 and 573.80(2) was incorrect. The rules in question are consistent with the

Act, and they fall squarely within the Board’s express authority thereunder to protect

the public from the unsafe practice of veterinary medicine. Tex. Occ. Code §

801.151 (c)(1). See also the specific factors set forth in § 801.402. Tex. Occ. Code

§§ 801.402(4), (6), (12), (13), (16).

       The rules are also within the Board’s implied authority because they are

authorized by the legislature’s statutorily-enumerated purposes, those being the

protection of the public and the establishment and maintenance of high integrity for

the profession. Tex. Occ. Code § 801.151(b); Tex. Dep’t of Human Servs. v.

Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex. App—Austin 1992, writ

denied).

                                           6
A.    Both rules are consistent with the Act, including the “Ownership
      Exemption.”

      The Act provides that it 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.” Tex. Gov’t Code § 801.004(1)

(“Ownership Exemption”).

      As will be discussed below, both rules are consistent with the Ownership

Exemption.

                                   Rule 573.72

Rule 573.72 provides:

      (a) A nonprofit or municipal corporation may employ or contract with
      a veterinarian to provide veterinary services in connection with
      sheltering, sterilization, vaccination, or other medical care and
      treatment of animals.

      (b) Employment by or contractual service to a nonprofit or municipal
      corporation does not exempt the veterinarian from any of the provisions
      of the Veterinary Licensing Act or the Board’s rules.

      (c) Veterinarians employed by, or contracted to, nonprofit or municipal
      corporations shall be liable for any violations of the Act or rules
      occurring as a result of the practice of veterinary medicine or any
      veterinary services provided by the nonprofit or municipal corporation,
      including those occurring due to the acts or omissions of non-licensed
      employees of, or volunteers for, the nonprofit or municipal corporation.

22 Tex. Admin. Code § 573.72.


                                         7
       The district court held that rule 573.72 “violates the right of a non-profit or

shelter to employ a licensed veterinarian and seek full protection of the ownership

exemption for the treatment of animals for which the shelter is the owner.” CR ___.1

To the contrary, the rule is consistent with the Ownership Exemption. If indeed a

licensed veterinarian can demonstrate that he or she is an owner or designated

caretaker of an animal, or is employed by an owner of an animal, then the rule would

obviously not apply as long as the licensee did not intend to circumvent the

provisions of the Act. Tex. Occ. Code § 801.004(1). Indeed, non-profits and

municipal corporations often provide services to the general public and are not the

owners, employees, or designated caretakers of animals. Rule 573.72 is simply

written to prevent a licensed vet from hiding behind the veil of a non-profit or

municipal corporation in establishing one of the exemption criteria, which is a

separate matter from whether or not a vet is an owner of an animal, an employee of

the owner, or a designated caretaker.

       The rule is not intended to apply to veterinarians who fall under the Ownership

Exemption, and it is consistent with the exemption and the Act as a whole.



1
 While the district court referred to Rule 573.72 as a whole, subsection (a) is not at issue in this
appeal. No one disputes the right of a nonprofit or municipal corporation to “employ or contract
with a veterinarian to provide veterinary services in connection with sheltering, sterilization,
vaccination, or other medical care and treatment of animals.” The Board therefore assumes that
the court meant to invalidate subsections (b) and (c) only.


                                                 8
                                  Rule 573.80(2)

      Board Rule 573.80(2) defines a “designated caretaker” as:

      a person to whom the owner of an animal has given specific authority
      to care for the animal and who has not been designated, by using the
      pretext of being a designated caretaker, to circumvent the Veterinary
      Licensing Act (Chapter 801, Texas Occupations Code) by engaging in
      any aspect of the practice of veterinary medicine (including alternate
      therapies). A designated caretaker who treats an animal for a condition
      that the animal was known or suspected of having prior to the person
      being named a designated caretaker, is presumed to be attempting to
      circumvent the Veterinary Licensing Act unless the designated
      caretaker is following the instruction of a veterinarian and is under the
      appropriate level of supervision per board rules. In this situation, the
      designated caretaker may present evidence to rebut the presumption.

22 Tex. Admin. Code § 573.80(2) (emphasis added).

      The district court held that the definition of “designated caretaker” violates

the Ownership Exemption because “it creates a presumption that a person intends to

violate the Act and then provides an impermissibly limited exception that requires

the care of a veterinarian to prevent such violation.” CR 856; Exhibit 1. To the

contrary, the definition is consistent with the Act, including the Ownership

Exemption. The intent of the rule is to ensure that non-veterinarians practicing

veterinary medicine without a license cannot be exempt from the Act. If the rule is

invalidated then anyone caught practicing veterinary medicine without a license

could evade responsibility by simply claiming that he or she is a “designated

caretaker.” Indeed, absent the rule, the common definition of “designated caretaker”


                                         9
would simply be any person who is “designated” to “care” for an animal. That would

vitiate the entire Act and would create an absurd result which the legislature never

intended.2 On the other hand, neither vets nor people practicing without a license

would generally be practicing unless the animal already had a condition. Thus,

preventing someone from being a “designated caretaker” after an animal has a

condition furthers the purpose of the Act and protects the public from the unsafe

practice of veterinary medicine.

       Rule 573.80(2) is also entirely consistent with the Ownership Exemption and

the Act as a whole.

                             CONCLUSION AND PRAYER

       For the reasons discussed above, the Board respectfully requests that this

Court reverse that part of the district court’s judgment which invalidates Board Rules

573.72 and 573.80(2).3

Dated: July 8, 2015.




2
  All vets are clearly designated to provide care to animals under any common definition of
“designated,” “caretaker,” or “designated caretaker.”

3
 The Board also requests this Court to affirm that the part of the district court’s final judgment
which grants the Board’s plea to the jurisdiction. CR 855; Exhibit 1. That matter will be briefed
by the parties as part of Dr. Jefferson’s cross-appeal.


                                               10
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.
Division Chief, Administrative Law Division

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
State Bar No. 24008890
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4191
Facsimile: (512) 457-4674
Email: ted.ross@texasattorneygeneral.gov
Attorneys for Appellants/Cross-Appellees Texas
State Board of Veterinary Medical Examiners, and
Nicole Oria




        11
                         CERTIFICATE OF COMPLIANCE

        I hereby certify compliance with Texas Rules of Appellate Procedure 9 and
that there are 1,999 words in this document. Microsoft Word was used to prepare
this filing and calculate the number of words in it.

                                              /s/ Ted A. Ross
                                              Ted A. Ross
                                              Assistant Attorney General



                        CERTIFICATE OF SERVICE

      I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of
Appellate Procedure, a true and correct copy of the above and foregoing document
has been served on the following on this the 8th day of July 2015:

David F. Brown                          Via: Electronic Service and e-mail
dbrown@ebblaw.com
David P. Blanke
dblanke@ebblaw.com
Zeke DeRose III
zderose@ebblaw.com
111 Congress Avenue, 28th Floor
Austin, Texas 78701

Ryan Clinton
rdclinton@dgclaw.com
Davis, Gerald & Cremer, P.C.
111 Congress Avenue, Suite 1660
Austin, Texas 78701
Attorneys for Ellen Jefferson, D.V.M.

                                              /s/ Ted A. Ross
                                              Ted A. Ross
                                              Assistant Attorney General




                                         12
EXHIBIT 1
                                            CAUSE NO. D-1-GN-14-000287

ELLEN JEFFERSON, D.V.M.,                                 §      IN THE DISTRICT COLTRT
                                                         §
                              Plainlzjf;                 §
                                                         §
v.                                                       §
                                                         §       127th JUDICL\L DISTRICT
TEXAS STATE BOARD OF VETERIN;\RY                         §
J\fEDICAL EX\J\fINERS and NICOLE                         §
ORL\, in her official capacity as Executive
Director,

                              Defendants.                        TR,\ VIS COUNTY, TJ~XAS


                                                FINAL JUDGMENT

               On August 4, 2014, Plaintiff, Ellen Jefferson, D.V.M. (Dr. Jefferson), and Defendants, the

Texas State Board of Veterinary Medical Examiners (l'BVl\fE), and Nicole Oria, in her official

capacity as Executive Director of TBVME, appeared with their attorneys of record and proceeded

to trial before the Court. The Court also heard argument on Defendants' Plea to the Jurisdiction on

that date. After considering the pleadings, motions, stipulations, the requests for judicial notice, the

evidence presented at trial, and the arguments of counsel, the Court renders final judgment as

follows:

               The Court grants Defendants' Plea to the Jurisdiction in part and dismisses Dr. Jefferson's

claims under the Uniform Declaratory Judgment :\ct without prejudice. Dr. Jefferson must exhaust

her administrati,-e remedies to challenge TBVl\fE's factual findings and allegations and the

application of TBVME's rules to those findings and allegations.              See Tex. Occ. Code Ann. §

801.004(1 ).

               The Court finds that it does have jurisdiction under Section 2001.038 of the Administrative

Procedure Act (":\P:\") regarding certain rule challenges that Dr. Jefferson asserts. The Court finds

that TBVME's reliance on Section 2001.038(e) docs not bar the Court's consideration of the

C\l':·:I·:   ~(J D-l-C~-1+-ll00287
Page l nC ?1
administrative rules at the core of the disputes presented in this suit. Cnder jurisdiction provided by

Section 2001.038, the Court finds that the following rules arc contrary to Section 801.004(1):

                        1)            Board Rule 573.72, as written, \-iolates the right of a non-profit or shelter to

employ a licensed veterinarian and seek full protection of the ownership exemption for the

treatment of their animals for which the shelter is the owner. See 22 Tex. Admin. Code§ 573.72. If a

veterinarian is employed by a non-profit or shelter, their handling of the care of the animals so

owned by their employer will not be generally cm-ered by the ;\ct.

                        2).           Board Rule 573.80(2) also fails to comply \vith the mvnership exemption,

smce it creates a presumption that a person intends to evade the Act and then provides an

impermissibly limited exception that requires the care of a veterinarian to prevent such violation.

See 22 Tex. Admin. Code§ 573.80(2).

           The Court, however, does find that the mvncrship exception docs not allow a veterinarian to

ignore other laws outside the Act that relate to his or her \·eterinary license, including all laws

relating to the handling of prescription drugs (dangerous or controlled). Because it is the veterinary

license, not the ownership of the animals, that allows a veterinarian to take certain actions, those

actions may be m-ersecn by TBVME to ensure compliance. Such im-estigations and administrative

actions are not categorically banned by the ownership exemption and the Court will not prevent

TBVME from exercising its administrative powers to investigate such complaints. In exercising its

quasi-judicial authority in onrseeing the administrative process, however, TBVi\IE must do so in

accordance with the boundaries of the ,\ct, and with proper and due regard for the ownership

exemption, as mandated by the Texas J ~egislaturc.

            IT IS THEREFORE ORDERED, ADJl-DGED, :\ND DECREED that the Plea to the

Jurisdiction is granted in part, pursuant to Section 2001.038 of the Administratin Procedure Act;

that Board Rules 573.72 and 573.80(2) are found to be contrary to Section 801.004(1) of the

C\USL J\:O D-I-(;'.'.i-14-lllJIJ287
Page 2 of~'>
Veterinarv Practice Act and therefore invalid; and this matter shall be remanded to the TBVME for
                J




further actions consistent with this order.

               All costs of court are assessed against the party who incurred them. All relief not expressly

granted herein is denied. This judgment finally disposes of all parties and all claims in the entire suit

and is appealable.

               Signed this             day of NoYember, 2014.




                                                                Gisela D. Triana
                                                                200'h District Court
                                                                Travis County, Texas




C\l'SI·: .'\() D-l-(;.'\-14-1lil0287
P11gc 3 of 3
