                                                                                         ACCEPTED
                                                                                    03-14-00396-CV
                                                                                           3671274
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                1/6/2015 4:26:35 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                       No. 03-14-00396-CV

        In the Third Court of Appeals                               FILED IN
                                                             3rd COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                Austin, Texas                                1/6/2015 4:26:35 PM
                                                               JEFFREY D. KYLE
                                                                     Clerk
         TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND
           YVETTE YARBROUGH, EXECUTIVE DIRECTOR,
                                Appellants,

                                   v.

                   TEXAS MEDICAL ASSOCIATION,
                                  Appellee.

                         On Appeal from the
             353rd Judicial District, Travis County, Texas
                      No. D-1-GN-11-000326

                 MOTION FOR PANEL REHEARING
                 AND/OR EN BANC REHEARING


KEN PAXTON                          APRIL L. FARRIS
Attorney General of Texas           Assistant Solicitor General
                                    State Bar No. 24069702
CHARLES E. ROY
First Assistant Attorney General    OFFICE OF THE ATTORNEY GENERAL
                                    P.O. Box 12548 (MC 059)
JAMES E. DAVIS                      Austin, Texas 78711-2548
Deputy Attorney General for         Tel.: (512) 936-2923
Civil Litigation                    Fax: (512) 474-2697
                                    april.farris@texasattorneygeneral.gov
JONATHAN F. MITCHELL
Solicitor General                   COUNSEL FOR APPELLANTS
                                              INDEX OF AUTHORITIES


Cases

Browning v. Prostok,
      165 S.W.3d 336 (Tex. 2005)................................................................................... 3, 9

Heckman v. Williamson County,
     369 S.W.3d 137 (Tex. 2012)....................................................................................... 5

Nat’l Am. Ins. Co. v. Texas Prop. & Cas. Ins. Guar. Ass’n for Paula Ins. Co.,
       No. 03-09-00680-CV, 2013 WL 4817637 (Tex. App.—Austin Aug.
       28, 2013, no pet.)......................................................................................................... 9

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

Tex. Gen. Indem. Co. v. Tex. Workers’ Comp. Comm’n,
      36 S.W.3d 635 (Tex. App.—Austin 2000, no pet.) ............................................. 4, 6

Thomas v. Long,
      207 S.W.3d 334 (Tex. 2006)....................................................................................... 5

Statutes

22 TEX. ADMIN. CODE § 71.17 ............................................................................................. 6

22 TEX. ADMIN. CODE § 75.17 ......................................................................................... 2, 7

22 TEX. ADMIN. CODE § 75.17(b)(5).................................................................................... 7

22 TEX. ADMIN. CODE § 75.17(b)(9) ................................................................................... 7

22 TEX. ADMIN. CODE § 75.17(c)(3)(C)............................................................................... 7

22 TEX. ADMIN. CODE § 75.17(d) ................................................................................ 7, 8, 9

22 TEX. ADMIN. CODE § 75.17(d)(1)............................................................................ passim

22 TEX. ADMIN. CODE § 75.17(d)(1)(A) .......................................................................... 8, 9

22 TEX. ADMIN. CODE § 75.17(d)(1)(B) .............................................................................. 8
TEX. GOV’ T CODE § 2001.038 ............................................................................................. 3

TEX. OCC. CODE § 201.002 ................................................................................................... 2

TEX. OCC. CODE § 201.002(b)(1) ......................................................................................... 9




                                                              ii
                                 No. 03-14-00396-CV
                            In the Third Court of Appeals
                                    Austin, Texas


                  TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND
                    YVETTE YARBROUGH, EXECUTIVE DIRECTOR,
                                         Appellants,

                                           v.

                           TEXAS MEDICAL ASSOCIATION,
                                          Appellee.

                                 On Appeal from the
                     353rd Judicial District, Travis County, Texas
                              No. D-1-GN-11-000326

        MOTION FOR PANEL REHEARING AND/OR EN BANC REHEARING


      The Court’s memorandum opinion—issued mere hours after this complex case

was submitted for decision without the benefit of the requested oral argument—suffers

from three fundamental errors that require rehearing: (1) the opinion misstates the

appellate issues at the outset, and so resolves appellate issues that the Texas Board of

Chiropractic Examiners and its Executive Director (TBCE) did not assert; (2) the

opinion resolved the subject-matter jurisdiction inquiry using a method that the Texas

Supreme Court prohibits; (3) the opinion misstates which administrative rule is at issue

with respect to a key component of TBCE’s jurisdictional challenge, and consequently

reaches an erroneous conclusion.
        Appellants, therefore, respectfully request panel rehearing and an opportunity to

present oral argument on TBCE’s issues, which are of great consequence to the practice

of chiropractic in Texas.

                                            ARGUMENT

        Rehearing should be granted for three reasons. First, the Court’s opinion errs

from the outset by purporting to address and resolve a challenge to the trial court’s

jurisdiction over the entire lawsuit. Slip Op. at *1 (misstating TBCE’s position, at the

outset of the opinion, as “assert[ing] . . . that the district court lacked subject-matter

jurisdiction over the TMA’s suit because it is an impermissible collateral attack”

(emphasis added)). But TBCE has never challenged the trial court’s jurisdiction over

Texas Medical Association’s (TMA) entire suit, which consists of distinct declaratory-

relief claims seeking invalidation of four different provisions of the chiropractic Scope

of Practice Rule, 22 Tex. Admin. Code § 75.17. See Slip. Op. at *3 (listing the four

provisions of the Scope of Practice Rule challenged in TMA’s suit). The opinion’s

premise that TBCE has challenged the district court’s jurisdiction over “TMA’s suit”

cannot be reconciled with TBCE’s stated appellate issues, its requested relief, or its

thorough briefing in this matter.1




1 Compare Slip Op. at *1 (misstating TBCE’s position as “assert[ing] . . . that the district court lacked
subject-matter jurisdiction over the TMA’s suit because it is an impermissible collateral attack . . .”
(emphasis added)) with TBCE Br. at x (Statement of the Issues) (challenging jurisdiction over only
“TMA’s request for a declaration that ‘the use of the term ‘diagnosis’ in the Board’s Scope of Practice
Rule ‘violate[s] Tex. Occ. Code § 201.002’”); id. at 37 (Prayer for Relief) (requesting relief only as to

                                                   2
       Rather, TBCE’s plea to the jurisdiction and this appeal challenged only the trial

court’s subject-matter jurisdiction over one of these four claims—TMA’s request to

invalidate the provision of the Scope of Practice Rule “authorizing chiropractors to

‘diagnose’ diseases,” Slip Op. at *3, which is at § 75.17(d)(1). TBCE Br. 3-9, 25.

       Specifically, TBCE argues that TMA, in prior litigation, filed a declaratory-relief

claim attempting to invalidate § 75.17(d)(1) on the very same grounds. TMA lost that

challenge, and a final judgment was entered rejecting TMA’s attempt to invalidate that

provision.2 Tex. Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n, 375 S.W.3d 464, 492 (Tex.

App.—Austin 2012, pet. denied) (TMA I)). Consequently, the court has no subject-

matter jurisdiction to hear TMA’s second and successive claim for a declaration

invalidating § 75.17(d)(1), because that claim is a collateral attack on the prior judgment.

TBCE Br. 16-17, 21, 26 (citing Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)

(holding that a collateral attack attempts to “avoid the binding force of a judgment in a

proceeding not instituted for the purpose of correcting, modifying, or vacating the

judgment, but in order to obtain some specific relief which the judgment currently

stands as a bar against.”)). TMA’s claim is also barred by collateral estoppel, which

typically is an affirmative defense, but operates jurisdictionally as to a declaratory-relief


“TMA’s request for declaratory relief on the issue of the use of the term ‘diagnosis’ in the Scope of
Practice Rule”); id. at 4-5, 7-8, 9, 25.
2
  TBCE Br. 3-9, 25. Section 2001.038 of the Texas Government Code allows TMA to bring “an
action” challenging the validity of a rule provision. It does not authorize TMA to bring a second action
challenging the same provision on the same grounds because it disagreed with the prior judgment.


                                                   3
claim that simply relitigates the validity of an administrative rule. TBCE Br. 19, 28-29,

33, 39 (citing Tex. Gen. Indem. Co. v. Tex. Workers’ Comp. Comm’n, 36 S.W.3d 635, 639

(Tex. App.—Austin 2000, no pet.)).

       By contrast, TBCE has never disputed that subject-matter jurisdiction exists over

the remaining three claims seeking invalidation of three other provisions of the Rule,

which the parties have not litigated previously. Nor has TBCE ever argued that the

case—or TMA’s diagnosis-provision claim—is moot. Accordingly, the Court’s holdings

that “this proceeding is not a collateral attack on the prior judgment,” and “this case is not

moot,” are not responsive to the issues on appeal that were actually raised and briefed

by TBCE. Slip. Op. *8, 6 (emphasis added). These holdings display a fundamental

misunderstanding of the issues presented and, therefore, warrant rehearing.

       Second, rehearing is necessary because the opinion resolved the question of

subject-matter jurisdiction in a manner that is contrary to settled Texas law: by finding

subject-matter jurisdiction over the case as a whole simply because there is jurisdiction

over some of TMA’s claims. See Slip Op. at *6 (“This case is not moot.”); id. at *5 (“Even

if one of the arguments the TMA now advances in support of its claim has been decided

against it (which we do not decide), that would not deprive the district court of subject

matter jurisdiction over a challenge to provisions of the scope-of-practice rule that were

not at issue in the previous litigation.”).

       This reasoning contravenes the Texas Supreme Court’s holding that subject-

matter jurisdiction must be decided on a claim-by-claim basis, not as to the case as a

                                              4
whole. Thomas v. Long, 207 S.W.3d 334, 338 (Tex. 2006) (“Long argues [that] if the trial

court lacks jurisdiction over some claims but not others, it must deny the plea. We

disagree. . . . [I]t is proper for a trial court to dismiss claims over which it does not have

subject matter jurisdiction but retain claims in the same case over which it has

jurisdiction.”); Heckman v. Williamson County, 369 S.W.3d 137, 152-53 (Tex. 2012) (“First,

a plaintiff must demonstrate that the court has jurisdiction over (and the plaintiff has

standing to bring) each of his claims; the court must dismiss those claims (and only

those claims) over which it lacks jurisdiction”).

       Requests to invalidate different provisions of the Scope of Practice Rule are

distinct claims, and each claim prevails, falls, or is waived independently of the others.

See TMA I, 375 S.W.3d at 472-73, 490-94, 497 (analyzing requests to invalidate different

provisions of the Scope of Practice Rule as distinct claims). Thus, the trial court’s

undisputed jurisdiction over TMA’s requests to invalidate three other Rule provisions

has no bearing on whether the court has subject-matter jurisdiction to hear TBCE’s

challenge to the provision “authorizing chiropractors to ‘diagnose’ diseases.” Slip. Op.

at *3. TMA has not argued otherwise, and for good reason. Texas law is clear that claims

for which subject-matter jurisdiction is lacking cannot piggyback into court on separate

claims for which subject-matter jurisdiction exists. Thomas, 207 S.W.3d at 338.

       This erroneous approach yielded an erroneous decision. Relying on the trial

court’s jurisdiction over the three other claims, the opinion explicitly reserved judgment

on the question that is dispositive of whether jurisdiction exists over TMA’s claim

                                              5
requesting the invalidation of § 75.17(d)(1): whether TMA has previously litigated and

lost the same challenge to this provision of the Scope of Practice Rule that authorizes

chiropractors to make a “diagnosis.” Slip. Op. at *5 (“Even if one of the arguments the TMA

now advances in support of its claim has been decided against it (which we do not decide), that would

not deprive the district court of subject matter jurisdiction over a challenge to

provisions of the scope-of-practice rule that were not at issue in the previous litigation.”

(emphasis added)). Until this question is answered, the Court cannot resolve whether

TMA’s new “diagnosis”-provision claim is a collateral attack on the prior final

judgment. Nor can the Court determine whether this Court’s controlling decision in

Texas General Indemnity defeats jurisdiction over TMA’s request to supplant the prior

court’s declaration of § 75.17(d)(1)’s validity with a declaration of its invalidity. See Tex.

Gen. Indem. Co., 36 S.W.3d at 639 (affirming grant of a plea to the jurisdiction where the

parties had already proceeded to judgment in another court on the issue of the rule’s

validity, and thus were “barred from relitigating” the issue).

       Finally, rehearing is necessary to correct another crucial factual error that led to

an erroneous legal conclusion. The opinion again misstates TBCE’s briefing in

reasoning that “[o]n appeal the Board argues that in TMA I the TMA litigated the issue

of whether use of the term ‘diagnosis’ rendered rule 71.17(d) invalid. . . . The trial court’s

judgment in TMA I dealt solely with the validity of certain provisions of the scope-of-

practice rule that are not at issue in the present litigation.” Slip. Op. at *6 (emphasis

added). But TBCE has never made any argument whatsoever regarding Rule § 71.17,

                                                 6
entitled “Temporary Faculty License.” It was not at issue in TMA I. On the contrary,

TBCE’s argument has always been that, in the TMA I litigation, TMA litigated the issue

of whether the use of the term “diagnosis” rendered 22 Tex. Admin. Code § 75.17(d)

and (d)(1) (portions of the Scope of Practice Rule) invalid. See TBCE Br. 6-8, 10-11, 21,

25, 36 (comparing TMA’s “diagnosis” pleadings on § 75.17(d) and (d)(1) in TMA I to

TMA’s “diagnosis” provision pleadings in this case).

        Alternatively, assuming that this error was a typo and that the Court intended to

refer to § 75.17, the statement that “[t]he trial court’s judgment in TMA I dealt solely

with the validity of certain provisions of the [Rule] that are not at issue in the present

litigation” is still incorrect. Slip. Op. at *6. The opinion acknowledges that TMA here

requests a declaration invalidating the Scope of Practice Rule provision “authorizing

chiropractors to ‘diagnose’ diseases.”3 Slip. Op. at *3. But there is only one such

provision in the Rule that vests chiropractors with the authority to “diagnos[e]”: 22 Tex.

Admin. Code § 75.17(d)(1) (under title provision § 75.17(d) (“Analysis, Diagnosis, and

Other Opinions”)). See § 75.17(d)(1) (“In the practice of chiropractic, licensees may

render an analysis, diagnosis, or other opinion regarding the findings of examinations


3
  TMA’s complaint challenges the “validity of specific provisions of 22 Tex. Admin. Code § 75.17”
that “authorize[] chiropractors to diagnose diseases,” but the complaint never gives a citation for those
“specific provisions,” which are found only in § 75.17(d) and (d)(1). R.4. The complaint’s vagueness
and omission of any citation to § 75.17(d) and (d)(1) is likely to blame for the opinion’s erroneous
conclusion that TMA here challenges only §§ 75.17(b)(5), 75.17(b)(9), and 75.17(c)(3)(C). Slip. Op. at
*5-6. That particular holding also errs in another respect: as TBCE explained in its brief,
§ 75.17(c)(3)(C) “no longer existed at the time [TMA’s] First Amended Complaint was filed,” and that
former provision’s substance now appears elsewhere. TBCE Br. 23.


                                                   7
and evaluations.”); § 75.17(d)(1)(A) and (B) (listing topics that may and may not be

proper subjects of subsection (d)(1)’s authority grant). No other provision confers that

authority. TMA’s pleaded request for a declaration that the “use of the term ‘diagnosis’”

exceeds the “lawful scope of the practice of chiropractic” must be a request to invalidate

§ 75.17(d)(1). R.4.

        There is no question that both the trial-court judgment and the appeal in TMA

I “dealt” with this same provision; they did so exhaustively. To begin, TMA I quoted

§ 75.17(d) and (d)(1) in their entirety. Texas Bd. of Chiropractic Examiners v. Texas Med.

Ass’n, 375 S.W.3d at 489. TMA I then proceeded to hold that: (1) TMA litigated to a

final judgment the issue of whether the use of the term “diagnosis” rendered § 75.17(d)

and (d)(1) invalid4; (2) TMA lost that claim in trial court, by virtue of the district court’s

denial of TMA’s motion for summary judgment and its grant of TBCE’s counter

summary-judgment motion on that claim5; (3) TMA waived its right to appeal that

portion of the judgment by failing to cross appeal from the judgment6; and (4) the


4
  “First, they sought a declaration that 75.17(d)’s use of ‘diagnosis’ in itself rendered this rule and
various related rules invalid, reasoning that the statutory scope of chiropractic permits licensees to
‘analyze, examine, or evaluate’ certain conditions, but not to ‘diagnose’ them, and that ‘diagnose’ is
instead reserved to the practice of medicine and certain other health care professions.” TMA I, 375
S.W.3d at 490. TMA, however, won a narrower claim in the district court challenging the authorization
of chiropractors to diagnose on certain topics listed in (d)(1)(A) and (B), but that portion of the
judgment was reversed by this Court in TMA I. Id. at 490-91, 494, 497.
5
 “The district court denied the Physician Parties’ motion and granted the Chiropractors’ motions ‘in
part as to the Chiropractic Board’s use of the word ‘diagnosis’ in its rule.’” Id. at 490-91.
6
 “[T]he Physician Parties’ ‘cross-point’ seeks relief beyond that which they were afforded in the district
court’s judgment, which explicitly granted the Chiropractor Parties’ motion for partial summary
judgment and rendered a take-nothing judgment as to the Physician Parties’ claims for a declaration

                                                    8
“effect” of TMA’s failure to appeal is that the meaning of “diagnose” is “synonymous

with the phrase ‘analyze, examine, or evaluate’ in the statutory scope of chiropractic,”

and thus “effectively tracks”—and so does not exceed—“the Legislature’s scope of the

chiropractic.”7 TBCE Br. 20-21. TMA’s new pleading requesting “a declaration that the

use of the term ‘diagnosis’ . . . exceed[s] the lawful scope of the practice of chiropractic

and the authority of TBCE,” R.4., attempts to avoid the binding force of the judgment

and its effect. Browning, 165 S.W.3d at 346. There is no subject-matter jurisdiction over

this collateral-attack claim.8

        TBCE also respectfully renews its request for oral argument. The issue of

whether the “diagnosis” power vested by § 75.17(d)(1) exceeds the lawful scope of the

chiropractic is a question of vital importance to the Board, its Executive Director, and

the thousands of chiropractors licensed to practice in the State of Texas. And the

question of whether TMA’s “diagnosis” challenge is a collateral attack on a judgment

that has already resolved that critical issue in TBCE’s favor is a question that must be


that the use of ‘diagnosis’ in itself rendered 75.17(d) invalid. Consequently, to raise this contention on
appeal, the Physician Parties were required to file their own notice of appeal.” Id. at 492.
7
 Id. at 491 (quoting TEX. OCC. CODE § 201.002(b)(1)); id. at 494 (“[R]egardless of whether diagnosis,
pathology, or etiology invoke concepts of disease as the Physician Parties suggest, the bottom line is
that paragraph (d)(1)(A) limits chiropractors to diagnoses regarding ‘the biomechanical condition of
the spine and musculoskeletal system’ as required by the statutory scope of chiropractic. Accordingly,
the provision does not exceed the statutory scope of chiropractic.”)

8 Nat’l Am. Ins. Co. v. Texas Prop. & Cas. Ins. Guar. Ass’n for Paula Ins. Co., No. 03-09-00680-CV, 2013
WL 4817637, at *3 (Tex. App.—Austin Aug. 28, 2013, no pet.) (“[I]f the . . . action for declaratory
relief attempts to avoid or requires us to interpret or modify the prior judgment, it is an impermissible
collateral attack, and the trial court lacked subject matter jurisdiction.”).


                                                    9
resolved by careful analysis of the prior trial-court judgment and opinion in TMA I,

TMA’s pleadings in the TMA I litigation, and TMA’s pleadings in this case. That careful

analysis, however, has not yet been performed.

                                      PRAYER

      For these reasons, TBCE respectfully requests rehearing and oral argument.


Respectfully submitted.


       KEN PAXTON                          /s/ April L. Farris_______
       Attorney General of Texas           APRIL L. FARRIS
                                           Assistant Solicitor General
       CHARLES E. ROY                      State Bar No. 24069702
       First Assistant Attorney General
                                           OFFICE OF THE ATTORNEY GENERAL
       JAMES E. DAVIS                      P.O. Box 12548 (MC 059)
       Deputy Attorney General for         Austin, Texas 78711-2548
       Civil Litigation                    Tel.: (512) 936-2923
                                           Fax: (512) 474-2697
       JONATHAN F. MITCHELL                april.farris@texasattorneygeneral.gov
       Solicitor General
                                           COUNSEL FOR APPELLANTS




                                          10
                                 CERTIFICATE OF SERVICE

      On January 6, 2015, this motion for rehearing was served via File & ServeXpress
on counsel in this proceeding as listed below:

 Mr. David F. Bragg                               Mr. Donald P. Wilcox
 LAW OFFICES OF DAVID F. BRAGG                    Ms. Kelly Walla
 P.O. Box 2047                                    TEXAS MEDICAL ASSOCIATION
 Bastrop, Texas 787602                            401 West 15th St.
 dfbragg@sbcglobal.net                            Austin, Texas 78701
                                                  rocky.wilcox@texmed.org
 Counsel for Appellee                             kelly.walla@texmed.org

                                                  Counsel for Appellee

Mr. Jason Ray
RIGGS, ALESHIRE & RAY
700 Lavaca St. Suite 920
Austin, Texas 78731
jray@r-alaw.com

Counsel for Intervenor Texas Chiropractic Association



                                             /s/ April L. Farris
                                             April L. Farris



                              CERTIFICATE OF COMPLIANCE

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this motion

contains 2,637 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).



                                             /s/ April L. Farris
                                             April L. Farris



                                               11
