                                                                                          ACCEPTED
                                                                                      03-15-00262-CV
                                                                                              7895959
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                11/18/2015 6:16:46 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK



          No. 3-15-00262-CV                                          FILED IN
                                                              3rd COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                        In the Court of Appeals               11/18/2015 6:16:46 PM
                    Third District of Texas — Austin              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
                       Cause No. D-1-GN-14-000355




     REPLY BRIEF OF APPELLANT
 TEXAS ASSOCIATION OF ACUPUNCTURE
       AND ORIENTAL MEDICINE

                           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

                ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS


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

INTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................2
I.       Because acupuncture is outside the statutory scope of chiropractic, the
         Chiropractic Board’s rules authorizing chiropractors to practice
         acupuncture without a license from the Acupuncture Board are
         invalid. .............................................................................................................2

         A.       A two-word addition to the definition of “acupuncture” in the
                  Acupuncture Chapter did not create an exemption for
                  chiropractors from the licensing requirements of the
                  Acupuncture Chapter............................................................................. 2

         B.       If the Legislature “indirectly” attempted to exempt
                  chiropractors from the licensing requirements of the
                  Acupuncture Chapter, the attempt failed. ............................................. 5

         C.       Even if the amendment to the Acupuncture Chapter’s definition
                  of acupuncture resulted in surplusage, the Court should decline
                  to adopt the Chiropractic Board’s interpretation because it
                  contravenes the express language of the Chiropractic Chapter
                  and leads to an absurd result. ................................................................ 8

         D.       Though there is sometimes overlap among activities two
                  regulated professions can perform, an amendment to the
                  definition of acupuncture in the Acupuncture Chapter did not
                  result in chiropractors being authorized to engage in the entirely
                  separate profession of acupuncture. ....................................................11

         E.       The cases relied on by the Chiropractic Board do not support
                  that the two-word amendment to the definition of acupuncture
                  created an exemption from the requirements of the Acupuncture
                  Chapter for chiropractors. ...................................................................13

         F.       Legislative history is irrelevant to unambiguous statutes and,
                  even if considered, does not support the Chiropractic Board’s
                  position. ...............................................................................................18

                                                               i
         G.       The Court should decline to read the Acupuncture Chapter’s
                  scope of practice and the Chiropractic Chapter’s scope of
                  practice in pari materia. .......................................................................21

         H.       The Acupuncture Association’s statutory construction argument
                  is not dependent on factual safety issues.............................................25
II.      The statutory scheme purportedly authorizing chiropractors to practice
         acupuncture with significantly less education and training in
         acupuncture than licensed acupuncturists violates Texas Constitution,
         Article XVI, Section 31. ................................................................................27

III.     The legislation that purportedly authorized chiropractors to practice
         acupuncture violates the one-subject rule in Texas Constitution,
         Article III, Section 35(a). ...............................................................................30

IV.      The Chiropractic Board has waived any argument regarding its laches
         defense. ..........................................................................................................32

PRAYER ..................................................................................................................33
CERTIFICATE OF COMPLIANCE .......................................................................35

CERTIFICATE OF SERVICE ................................................................................35




                                                             ii
                                     INDEX OF AUTHORITIES

CASES
Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson
   209 S.W.3d 644 (Tex. 2006) ..............................................................................18

Andrews v. Ballard
  498 F. Supp. 1038 (S.D. Tex. 1980) .............................................................25, 29
Brooks v. Tex. Med. Bd.
   No. 03-14-00239-CV, 2015 WL 3827327 (Tex. App.—Austin
   June 18, 2015, no pet.) ........................................................................................25
Brookshire v. Houston Indep. Sch. Dist.
   508 S.W.2d 675 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ) ........... 24
Chickasaw Nation v. U.S.
  534 U.S. 84 (2001) ................................................................................................9
City of Houston v. Clark
   197 S.W.3d 314 (Tex. 2006) ..............................................................................26
City of Rockwall v. Hughes
   246 S.W.3d 621 (Tex. 2008) ..............................................................................10

City of Round Rock v. Rodriguez
   399 S.W.3d 130 (Tex. 2013) ..............................................................................22
City of San Antonio v. Tex. Att’y Gen.
   851 S.W.2d 946 (Tex. App.—Austin 1993, writ denied)...................................21
Coker v. Coker
  650 S.W.2d 391 (Tex. 1983) ..............................................................................27

Commonwealth Dep’t of State v. Schatzberg
  371 A.2d 544 (Pa. Commw. Ct. 1977) ................................................................. 5

DLB Architects, P.C. v. Weaver
  305 S.W.3d 407 (Tex. App―Dallas 2010, pet denied)......................................23

Entergy Gulf States, Inc. v. Summers
   282 S.W.3d 433 (Tex. 2009) ..........................................................................3, 18

                                                         iii
Fed. Deposit Ins. Corp. v. Lenk
  361 S.W.3d 602 (Tex. 2012) ..............................................................................32

Foster v. City of El Paso
  396 S.W.3d 244 (Tex. App.—El Paso 2013, no pet.) ........................................33

Greater Houston P’ship v. Paxton
  468 S.W.3d 51 (Tex. 2015).............................................................................9, 22

Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs. Comm’n
  452 S.W.3d 479 (Tex. App.—Austin Nov. 25, 2014, pet. dism’d) ....................14

In re Blair
    408 S.W.3d 843 (Tex. 2013) ........................................................................17, 26

In re Doe 3
    19 S.W.3d 300 (Tex. 2000).................................................................................23
In re JMR
   149 S.W.3d 289 (Tex. App.—Austin 2004, no pet.) ..........................................24
Jessen Assocs., Inc. v. Bullock
   531 S.W.2d 593 (Tex. 1976) ..............................................................................32

Kallinen v. City of Houston
  462 S.W.3d 25 (Tex. 2015)...................................................................................8
Kia Motors Corp. v. Ruiz
   432 S.W.3d 865 (Tex. 2014) ................................................................................ 5
King v. Burwell
   135 S. Ct. 2480 (2015) ..........................................................................................9

Lamie v. U.S. Trustee
  540 U.S. 526 (2004) ..............................................................................................9

Lenhad v. Butler
   745 S.W.2d 101 (Tex. App.—Fort Worth 1988, writ denied) ...........................23

Matagorda Cnty. Appraisal Dist. v. Coastal Liquids Partners, L.P.
  165 S.W.3d 329 (Tex. 2005) ..............................................................................24

Mid-Century Ins. Co. of Tex. v. Kidd
  997 S.W.2d 265 (Tex. 1999) ................................................................................ 4

                                                         iv
Molinet v. Kimbrell
  356 S.W.3d 407 (Tex. 2011) ..............................................................................23

Nat’l Media Corp. v. City of Austin
  No. 03-12-00188-CV, 2014 WL 4364815 (Tex. App.—Austin
  Aug. 27, 2014, no pet.) .......................................................................................24
Neasbitt v. Warren
  22 S.W.3d 107 (Tex. App.—Fort Worth 2000, no pet.).....................................23

Ojo v. Farmers Grp., Inc.
   356 S.W.3d 421 (Tex. 2011) ..............................................................................19
Robinson v. Crown Cork & Seal Co., Inc.
  335 S.W.3d 126 (Tex. 2010) ..............................................................................19

Rogers v. Tex. State Bd. of Architectural Examn’rs
  390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.) .............................. 13-14, 18
Schlichting v. Tex. State Bd. of Med. Examn’rs
   310 S.W.2d 557 (Tex. 1958) ........................................................................ 29-30
Teem v. State
   183 S.W. 1144 (Tex. Crim. App. 1916) .............................................................28

Tex. Ass’n of Psychological Assocs. v. Tex. State Bd. of Examn’rs of
   Psychologists
   439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) ....................................15, 26
Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n
   375 S.W.3d 464....................................................................... 5, 15-16, 18, 20, 22
Tex. Lottery Comm’n v. First State Bank of DeQueen
   325 S.W.3d 628 (Tex. 2010) ..........................................................................4, 11
Tex. Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Exam’rs
   254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) ...................................29
Tex. State Bd. of Chiropractic Exam’rs v. Abbott
   391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.) ..........................................24
TGN-NOPEC Geophysical Co. v. Combs
  340 S.W.3d 432 (Tex. 2011) ................................................................................4


                                                        v
Thompson v. Tex. State Bd. of Med. Exam’rs
  570 S.W.2d 123 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.)...................7, 28

Transp. Ins. Co. v. Maksyn
   580 S.W.2d 334 (Tex. 1979) ................................................................................ 6

W. Orange-Cove Consol. Indep. Sch. Dist. v. Alanis
   107 S.W.3d 558 (Tex. 2003) ..............................................................................32

RULES, STATUTES AND CONSTITUTIONAL PROVISIONS
22 TEX. ADMIN. CODE § 78.13 ...........................................................................16, 33
22 TEX. ADMIN. CODE § 78.14 ...........................................................................10, 33
22 TEX. ADMIN. CODE § 183.2 .................................................................................30

22 TEX. ADMIN. CODE § 183.4 .................................................................................30

TEX. CONST., art. III, § 35 ........................................................................................30
TEX. CONST., art. XVI, § 31 ...............................................................................27, 30

TEX. GOV’T CODE § 311.021......................................................................................4
TEX. GOV’T CODE § 323.007 ......................................................................................7

TEX. GOV’T CODE § 325.015....................................................................................31
TEX. OCC. CODE § 151.002 ......................................................................................29

TEX. OCC. CODE § 151.052 .......................................................................... 28-29, 31
TEX. OCC. CODE §157.051 .......................................................................................23
TEX. OCC. CODE §162.052 .......................................................................................23

TEX. OCC. CODE, ch. 201 ...........................................................................................1
TEX. OCC. CODE § 201.002 .............................................................................. 3-4, 29

TEX. OCC. CODE § 201.151 ......................................................................................22
TEX. OCC. CODE § 201.152 ......................................................................................22


                                                         vi
TEX. OCC. CODE, ch. 205 ...........................................................................................1

TEX. OCC. CODE § 205.001 ..................................................................................4, 29

TEX. OCC. CODE § 205.003 ....................................................................................3, 5

TEX. OCC. CODE § 205.101 ......................................................................................29

TEX. OCC. CODE § 205.201 ........................................................................................6
TEX. OCC. CODE § 205.203 ................................................................................25, 30
TEX. OCC. CODE § 205.206 ................................................................................25, 30
TEX. OCC. CODE § 205.255.......................................................................................30

TEX. OCC. CODE § 1051.601 ....................................................................................13
TEX. R. APP. P. 38.1 .................................................................................................33

TEX. R. APP. P. 43.2 .................................................................................................27
TEX. R. APP. P. 43.3 .................................................................................................27

TEX. R. CIV. P. 166a .................................................................................................32

OTHER AUTHORITIES
Act of May 29, 1997, 75th Leg., R.S. ch. 1170
   (Tex. S.B. 361) ...................................................... 2, 4, 6-9, 12, 18-20, 30-31, 33
Tex. Atty. Gen. Op. DM-415 (1996) ......................................................................... 7

Tex. S.B. 1601, 82nd Leg., R.S. (2011)..................................................................... 4




                                                          vii
                                     INTRODUCTION
         The Chiropractic Board’s 1 response crystalizes the infirmity of its argument.

The Board claims that a two-word addition to the definition of acupuncture in the

Acupuncture Chapter2 —that made no mention of chiropractic or chiropractors—

fundamentally changed the law so as to not only allow chiropractors to practice

acupuncture, contrary to the Chiropractic Chapter,3 but also to exempt

chiropractors from the licensing requirements of the Acupuncture Chapter. This is

even though (1) the legislation that made the addition was the Acupuncture

Board’s 4 (and not the Chiropractic Board’s) sunset bill; (2) the Chiropractic

Chapter was not amended to authorize chiropractors to practice acupuncture; and

(3) nothing in the Acupuncture Chapter was amended to exempt chiropractors from

the education, licensing, and oversight requirements of that chapter. The result is

that chiropractors are able to practice acupuncture with no oversight by any

regulatory board since the Chiropractic Board does not regulate the practice of

acupuncture by its licensees.




1
 The Chiropractic Board refers to the Texas Board of Chiropractic Examiners and Yvette
Yarbrough, Executive Director in her Official Capacity.
2
    The Acupuncture Chapter is Texas Occupations Code, Chapter 205.
3
    The Chiropractic Chapter is Texas Occupations Code, Chapter 201.
4
    The Acupuncture Board refers to the Texas State Board of Acupuncture Examiners.




                                                1
      The Chiropractic Board’s rationale requires an illogical leap. Certainly, the

terms “nonincisive, nonsurgical” are found in both the Chiropractic and

Acupuncture Chapters. But this Court should refuse to take the leap advocated by

the Board. By its express language, the Chiropractic Chapter’s scope of practice

provision does not authorize chiropractors to practice acupuncture. And the

definition of acupuncture in the Acupuncture Chapter does not exempt

chiropractors from licensure under that chapter. The Court should reverse the trial

court’s judgment and render judgment for the Acupuncture Association. 5

                                  ARGUMENT

                                         I.
      Because acupuncture is outside the statutory scope of
      chiropractic, the Chiropractic Board’s rules authorizing
      chiropractors to practice acupuncture without a license from the
      Acupuncture Board are invalid.
A.    A two-word addition to the definition of “acupuncture” in the
      Acupuncture Chapter did not create an exemption for chiropractors
      from the licensing requirements of the Acupuncture Chapter.
      The Chiropractic Board’s primary argument is not that the Chiropractic

Chapter authorizes chiropractors to practice acupuncture. It is instead that Senate

Bill 361—which inserted the phrase “nonincisive, nonsurgical” into the definition

of acupuncture in the Acupuncture Chapter—created an exemption for

5
 Acupuncture Association refers to the Texas Association of Acupuncture and Oriental
Medicine.




                                         2
chiropractors from the Acupuncture Chapter’s licensing requirements. This

argument is unsupportable.

      The   Acupuncture      Chapter   does   not   include   any exemption    for

chiropractors—the only exemption is for professionals acting within the scope of

their own licenses. TEX. OCC. CODE § 205.003(a); see also, e.g., Entergy Gulf

States, Inc. v. Summers, 282 S.W.3d 433, 440 (Tex. 2009). Specifically, the

Acupuncture Chapter provides that “[t]his chapter does not apply to a health care

professional licensed under another statute of this state and acting within the

scope of the license.” TEX. OCC. CODE § 205.003(a) (emphasis added). The

Acupuncture Chapter is not “another statute.” Id. Consequently, the only way a

chiropractor is exempt from the requirements of the Acupuncture Chapter is if the

chiropractor is practicing within the scope of chiropractic as defined in the

chiropractor’s licensing statute: the Chiropractic Chapter. The Chiropractic

Chapter does not permit chiropractors to perform acupuncture.

      Under the express terms of the Chiropractic Chapter, chiropractors are

broadly prohibited from performing procedures involving needles, save for

diagnostic blood draws, and are limited to treating the musculoskeletal portion of

the body. See id. §§ 201.002, .003(a). The Chiropractic Chapter unambiguously

defines incisive as making an incision into any tissue or organ by any person or

implement, with only a narrow exception for diagnostic blood draws. Id.


                                         3
§ 201.002(a)(3). A needle is an “implement” used to make an incision into the

skin, which by definition is a “tissue” and “organ.” Id. And by virtue of the single

exception for needle-use for diagnostic blood draws, the chapter makes clear that

all needles are “incisive.” See TGN-NOPEC Geophysical Co. v. Combs, 340

S.W.3d 432, 439 (Tex. 2011); Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d

265, 273 (Tex. 1999). 6

         The Chiropractic Chapter does not include a provision authorizing

chiropractors to engage in acupuncture, despite attempts by some legislators to do

so in early versions of Senate Bill 361 and in subsequent legislation.7 The

Chiropractic Chapter does not list acupuncture as an exception to the prohibition

on needle use. It does not refer to any portion of the Acupuncture Chapter: it not

only does not mention the definition of acupuncture, it does not mention

acupuncture at all. Acupuncture—which by its statutory definition requires the use

of needles—does not fall within the statutory scope of chiropractic. TEX. OCC.


6
  The Board’s reliance on the Code Construction Act is misplaced. First, canons of construction
are only available if a statute is ambiguous. Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 637 (Tex. 2010). There is no ambiguity here. Second, even if
available, canons of construction belie the Chiropractic Board’s interpretation. The Code
Construction Act provides that it should be presumed that a just and reasonable result is
intended, a result feasible of execution is intended, and public interest is favored over private
interest. TEX. GOV’T CODE § 311.021(3)-(5). These admonishments compel the Court to not
interpret “nonincisive, nonsurgical” in the Acupuncture Chapter’s definition of acupuncture as
creating an exemption for chiropractors from Acupuncture Board licensure.
7
    CR 512, 515-16; Tex. S.B. 1601, 82nd Leg., R.S. (2011).




                                                4
CODE § 205.001(2); see also, e.g., Commonwealth Dep’t of State v. Schatzberg,

371 A.2d 544, 546-47 (Pa. Commw. Ct. 1977) (holding that acupuncture is not

within the scope of chiropractic because they are not the same and do not treat the

same conditions). Indeed, the Board admits that the amendment to the Acupuncture

Chapter “was not an amendment that changed the scope of practice of

chiropractic.”8 The Board may not rely on the Acupuncture Chapter’s exemption

for healthcare professionals acting within the scope of their license when the

Chiropractic Board’s scope of practice does not include acupuncture. TEX. OCC.

CODE § 205.003(a).

B.        If the Legislature “indirectly” attempted to exempt chiropractors from
          the licensing requirements of the Acupuncture Chapter, the attempt
          failed.
          The Chiropractic Board’s argument that it was permissible for the

Legislature to “indirectly” allow chiropractors to practice acupuncture without a

license because it purportedly could have done so directly fails for several reasons.

First, statutes are read according to their express terms, Kia Motors Corp. v. Ruiz,

432 S.W.3d 865, 869 (Tex. 2014), and the scope of the practice of chiropractic is

found in the Chiropractic Chapter, not the Acupuncture Chapter. See Tex. Bd. of

Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464. 467 (Tex. App.—


8
    Chiropractic Board’s Brief, at 40.




                                         5
Austin 2012, pet. denied). Because the scope of chiropractic is found in the

Chiropractic Chapter, the amendment to the definition of acupuncture in the

Acupuncture Chapter did nothing to enlarge the scope of chiropractic. Further,

contrary to the Board’s assertion that the definition of acupuncture in the

Acupuncture Chapter is not limited to licensed acupuncturists, the Acupuncture

Chapter applies to the licensing and regulation of acupuncturists by its terms. See

TEX. OCC. CODE § 205.201. Thus, this purported “indirect” attempt to amend the

scope of chiropractic failed.

         Second, the Board ignores that the Legislature could not directly authorize

chiropractors to practice acupuncture in Senate Bill 361. When it attempted to do

so, those amendments were struck on germaneness grounds.9

         Third, the Legislature attempted during the course of Senate Bill 361’s

enactment—and failed—to directly amend the Chiropractic Chapter to authorize

chiropractors to practice acupuncture. 10 The fact that a “direct” amendment was

not enacted militates against interpreting the so-called “indirect” amendment as

accomplishing what was rejected. See Transp. Ins. Co. v. Maksyn, 580 S.W.2d 334,


9
  CR 515-16. Similarly, as explained in Sections II and III, infra, if the amendment is read as
allowing chiropractors to practice acupuncture, it violates the Texas Constitution’s one-subject
rule and the Texas Constitution’s prohibition against the Legislature favoring one school of
medicine over another.
10
     CR 512, 515-16




                                               6
338 (Tex. 1979). Indeed, members of the Legislature acknowledged during debate

that amending the Acupuncture Chapter’s definition of acupuncture would not

accomplish the purpose of allowing chiropractors to practice acupuncture without

an Acupuncture Board license.11 To accomplish that purpose, it would have been

necessary to amend the Chiropractic Chapter.

         Finally, to interpret the definition of acupuncture as the Chiropractic Board

proposes defeats the Legislature’s goal for Texas statutes—to make them “more

accessible, understandable, and usable.” TEX. GOV’T CODE § 323.007(a). And

interpreting the effect of Senate Bill 361 in the manner urged by the Board also

defeats the purpose of the State’s regulation of the practice of medicine, which is to

“provide for the general health and welfare of its citizens.” Thompson v. Tex. State

Bd. of Med. Exam’rs, 570 S.W.2d 123, 128 (Tex. Civ. App.—Tyler 1978, writ

ref’d n.r.e.). As the Attorney General observed (before it later improperly reversed

course and concluded that chiropractors could practice acupuncture by virtue of

Senate Bill 361): “We believe the legislature, in the interest of the public health,

safety, and welfare, intended to except from the training and examination

requirements only health care professionals whose licenses clearly encompass the

practice of acupuncture.” Tex. Atty. Gen. Op. DM-415 (1996) (emphasis added)


11
     CR 478-80, 483.




                                           7
(internal citations omitted). This Court should not condone the Board’s latest

attempt to promote its own profession over following the law and protecting

patients.12 This is especially so since the Board does not oversee the practice of

acupuncture by its licensees.13

C.        Even if the amendment to the Acupuncture Chapter’s definition of
          acupuncture resulted in surplusage, the Court should decline to adopt
          the Chiropractic Board’s interpretation because it contravenes the
          express language of the Chiropractic Chapter and leads to an absurd
          result.
          The Court should reject the Chiropractic Board’s argument that the

Acupuncture Association’s interpretation of the definition of acupuncture renders

the term “nonincisive, nonsurgical” meaningless. First, it is possible to read the

phrase in a manner that does not render it meaningless. Because Senate Bill 361

amended the definition of acupuncture in the Acupuncture Chapter and was part of

the Acupuncture Board’s sunset bill, one interpretation is that the amendment

resulted in a limitation on the practice of acupuncture by acupuncturists.

          Second, it is sometimes unavoidable for statutory language, in practical

effect, to be meaningless. See Kallinen v. City of Houston, 462 S.W.3d 25, 28

(Tex. 2015) (a court should “not treat any statutory language as surplusage if

possible”). As the United States Supreme Court has acknowledged, “our
12
     CR 577; see also Acupuncture Association’s Brief, at 7-9.
13
     CR 249-51, 253, 284, 577.




                                                 8
preference to avoid surplusage is not absolute,” Lamie v. U.S. Trustee, 540 U.S.

526, 536 (2004), and the preference “is sometimes offset by the canon that permits

a court to reject words as surplusage … if repugnant to the rest of the statute,”

Chickasaw Nation v. U.S., 534 U.S. 84, 94 (2001). See also King v. Burwell, 135 S.

Ct. 2480, 2492 (2015); Greater Houston P’ship v. Paxton, 468 S.W.3d 51, 66

(Tex. 2015).

         Here, the fundamental problem with the amended definition of acupuncture

is that acupuncture is, by its very nature, an incisive procedure.14 Acupuncture

cannot be practiced in a nonincisive manner. No one disputes that needles

penetrate the skin and, as explained in Section I.E, the term “incisive” includes any

penetration of the skin. Indeed, the Chiropractic Board apparently does not actually

believe the amendment suddenly, overnight, made acupuncture nonincisive. The

Chiropractic Board’s executive director has expressly acknowledged that

acupuncture needles are incisive.15 The Board’s “surplusage” argument rests on an

assumption that the only possible impact of Senate Bill 361 was to allow

chiropractors to practice acupuncture through a fictional definition, thus implicitly


14
     CR 493.
15
   See also Chiropractic Board July 11, 2012 ad hoc meeting, at 1:46:00, available at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3, at which Yvette Yarbrough
admitted that “while [acupuncture] is in practice an incisive procedure, it’s defined as non-
incisive.”




                                             9
acknowledging that the amendment did nothing to actually change what

acupuncture is.

          Third, other principles of statutory construction counsel against the Board’s

interpretation. For instance, statutes should not be interpreted to lead to absurd

results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). To interpret

the definition of acupuncture as carving out an exemption from licensure for

chiropractors would defeat the purpose of occupational regulations and potentially

harm the public. 16 The Board’s rules signal that the Board believes the intensive

educational and training requirements mandated by the Legislature for the practice

of acupuncture are not necessary—which is illustrated by the fact that the

Chiropractic Board requires a lackluster 100 hours of training and does not

regulate the practice of acupuncture by chiropractors. See 22 TEX. ADMIN. CODE §§

78.14(b), (d). 17 Just as the Acupuncture Board would not be qualified to second-

guess the legislatively mandated education requirements for the safe performance

of nursing, the Chiropractic Board is not qualified to grant chiropractors the right

to practice acupuncture while exempting them from all mandated education and

training requirements.



16
     See Acupuncture Association’s Brief, at 28-33.
17
     CR 249-51, 253, 284, 577.




                                                 10
       Fourth, once more, the scope of chiropractic is set forth in the Chiropractic

Chapter, and it is inappropriate to resort to the Acupuncture Chapter to determine

that scope. Thus, even if a term in the Acupuncture Chapter is surplusage, this does

nothing to change the scope of chiropractic in the Chiropractic Chapter. 18 Under

the Chiropractic Chapter, by virtue of the broad prohibition against incisive

procedures (save for needles used for diagnostic blood draws), it is clear that the

chapter envisions needles to be incisive.

D.     Though there is sometimes overlap among activities two regulated
       professions can perform, an amendment to the definition of
       acupuncture in the Acupuncture Chapter did not result in
       chiropractors being authorized to engage in the entirely separate
       profession of acupuncture.
       The Chiropractic Board mischaracterizes that the Acupuncture Association

believes there can never be any overlap among regulated professions. The

Acupuncture Association has never claimed that an Occupations Code chapter

cannot create an exemption for professionals regulated by a separate regulatory

board. Instead, the Acupuncture Association believes that the addition of the


18
   The Chiropractic Board also claims that because the Legislature is charged with knowledge of
the law when it enacts a statute and because remedial statutes are to be interpreted broadly, it is
necessary for the Court to defer to the Board’s construction of the relevant statutes. But both of
these doctrines assume it is appropriate to look beyond the express language of the Chiropractic
Chapter and rely on canons of construction to determine the scope of chiropractic—which it is
not. DeQueen, 325 S.W.3d at 637. Further, as has been explained, even if the Legislature
intended for the amendment to the definition of acupuncture to exempt chiropractors from the
licensure requirements of the Acupuncture Chapter, the attempt was unsuccessful.




                                               11
phrase “nonincisive, nonsurgical” into the Acupuncture Chapter did not

successfully create any exemption or “carve out” for chiropractors from the

requirements of that chapter. To have created such an exemption, the Legislature

would have needed to amend the Chiropractic Chapter to authorize chiropractors to

practice acupuncture or in the very least would have needed to amend the

Acupuncture Chapter’s exemption provision to exempt chiropractors from the

chapter’s requirements. Senate Bill 361 did neither of these things.

      Further, the Board ignores that though there may be times when two or more

types of practitioners can perform the same procedure, the Occupations Code has

nonetheless created a regime in which regulatory boards regulate unique

professions, each with independent licensure requirements and oversight by

independent boards. Here, the Board is not merely authorizing chiropractors to

practice another procedure. It is authorizing chiropractors to practice an entirely

separate profession that is subject to distinct licensure requirements and regulated

by a separate board. This devalues not only acupuncturists but also chiropractors

who are dually licensed as chiropractors and acupuncturists. The Acupuncture

Association is not aware of any other professional rules in which a governing

board has announced that its members can engage in an entirely separate

profession that is regulated by another board. The Chiropractic Board has also not

identified any examples in its brief.


                                         12
E.    The cases relied on by the Chiropractic Board do not support that the
      two-word amendment to the definition of acupuncture created an
      exemption from the requirements of the Acupuncture Chapter for
      chiropractors.
      One primary case the Chiropractic Board relies on highlights a distinctly

different circumstance in which the Legislature has successfully carved out an

exemption from a profession’s licensing requirements and demonstrates why the

Board’s argument in this case fails. In Rogers v. Texas State Board of Architectural

Examiners, the issue was whether the Occupations Code chapter regulating

architects exempted engineers engaging in certain practices from the requirements

of that chapter. 390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.). The

Architecture Chapter’s exemption states: “This chapter and any rule adopted under

this chapter do not limit the right of an engineer licensed under [the Engineering

Chapter] to perform an act, service, or work within the scope of the practice of

engineering as defined by that chapter.” TEX. OCC. CODE § 1051.601. The

exemption additionally sets forth parameters for engineers engaging in practices

that overlap with the practice of architecture. Id. This Court held that the two

chapters “cross-reference each other so that the interpretation of one statute

necessarily involves interpretation of the other,” and this overlap dictated that the

Court could not grant deference to either the Engineering Board’s or Architecture

Board’s interpretation of the statutes at issue. Id. at 384.




                                           13
      The same is not true here. There is nothing in either the Chiropractic or

Acupuncture Chapter cross-referencing the other or stating that the two chapters

are to be referenced together. Further, it is significant that it is precisely because of

the significant cross-over between the Architecture and Engineering Chapters that

the Court refused to defer to either agency’s interpretation of its governing statutes.

Id. at 384-85. Here, there is not only no cross-over between the Chiropractic and

Acupuncture Chapters, but the issue is the practice of acupuncture by

chiropractors—something clearly within the domain and expertise of the

Acupuncture Board rather than the Chiropractic Board. See id. at 384. It is also

noteworthy that the Court concluded that determining whether the engineers

exceeded the scope of their licenses should be made by reference to the

Engineering Chapter’s scope of practice provision, not the Architecture Chapter.

Id. at 387-88; see also Harlingen Family Dentistry, P.C. v. Tex. Health & Human

Servs. Comm’n, 452 S.W.3d 479, 482 (Tex. App.—Austin Nov. 25, 2014, pet.

dism’d) (“An agency’s rules must comport with the agency’s authorizing statute.”).

It is improper for the Board to attempt to insert an additional exemption into the

Acupuncture Chapter by latching onto a definition in that chapter that makes no

reference to chiropractic or chiropractors (and also does not include the words

“except,” “exclude,” or the like).




                                           14
      Likewise, Texas Association of Psychological Associates v. Texas State

Board of Examiners of Psychologists does not offer the Board support. There, this

Court considered whether the Psychology Board exceeded its authority in adopting

rules requiring psychological associates to practice psychology under the

supervision of psychologists. 439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.).

Contrary to the Chiropractic Board’s assertion, the Court did not conclude the

Psychology Board’s rules were valid by importing language from a separate

statute. Instead, it concluded the rules were valid because (1) the rules did not

contravene specific statutory language in the Psychology Chapter and (2) the rules

did not run counter to the general objectives of the Psychology Chapter. Id. at 603-

06. And while the Court mentioned language in the Insurance Code defining

“psychological associate” as someone practicing under the supervision of a

psychologist, it did not base its holding on the language. Id. at 606. Here, unlike in

Psychological Associates, the Board not only asks this Court to extract broad

significance from two words added to another chapter that makes no mention of

chiropractors, but also requests that the Court use those two words as the sole basis

for determining that chiropractors may practice acupuncture.

      Additionally, Texas Board of Chiropractic Examiners v. Texas Medical

Association is unhelpful to the Chiropractic Board. The Board contends that in

Texas Medical Association this Court acknowledged that the phrase “incisive” in


                                         15
the Chiropractic Chapter is ambiguous. This is false. The Court did not decide the

meaning of the term “incisive” because the Texas Medical Association did not

challenge the Board’s definition of that word in its rules. 375 S.W.3d at 480. And

importantly, the Court left open the question of whether, as a matter of statutory

construction, the Chiropractic Chapter’s lone exception for diagnostic blood draw

needles from the chapter’s prohibition against incisive procedures reflects the

Legislature’s intent for all other needle use (including use of acupuncture needles)

to be prohibited. Id. at 478. That question is now presented in this case. The Court

should conclude that the definition of incisive in the Chiropractic Chapter is a

prohibition against needle use with only one exception for diagnostic blood draws.

          But to the extent the Court wishes to entertain whether there is any

distinction between a “common” or “technical” definition of incisive, as the parties

argued in Texas Medical Association, this is a distinction without a difference. In

Texas Medical Association, the Court stated that medical dictionaries define

“incision” as a “cut” while non-medical dictionaries define the term to include

“piercing.” 375 S.W.3d at 479-80. But even assuming the term “incisive” could be

limited to “cutting,” 19 “cut” is defined in at least some medical dictionaries as “to




19
     See 22 TEX. ADMIN. CODE § 78.13(a)(4).




                                              16
penetrate with a sharp object; strike a narrow opening in.” 20 “Cut,” “pierce,” and

“penetrate” are also synonymous.21 Thus, regardless of whether a “common” or

“medical” dictionary is consulted, “incisive” includes penetration by a sharp

object. And it cannot be disputed that all needles, including acupuncture needles,

are sharp objects that penetrate the skin. This is the most logical conclusion. It is

absurd to envision a regulatory scheme in which practitioners, agencies, and courts

are required to examine the heads of each type of acupuncture needle (and other

needles chiropractors might attempt to use) under a microscope to determine

whether a particular needle has a beveled head. See In re Blair, 408 S.W.3d 843,

848 (Tex. 2013).

          Finally, if the Court believes there is any ambiguity in any of the relevant

statutory language, as alternatively urged by the Chiropractic Board, the Board’s

interpretation is unreasonable and entitled to no deference, as argued in the

Acupuncture Association’s opening brief.22 Moreover, if the Court is to afford

administrative deference to any agency, it should defer to the Acupuncture Board

since that is the agency created by the Legislature to oversee the practice of




20
     See http://medical-dictionary.thefreedictionary.com/cut.
21
     http://www.thesaurus.com/browse/cut.
22
     Acupuncture Association’s Brief, at 28-45.




                                                  17
acupuncture. See Rogers, 390 S.W.3d at 384; Tex. Med. Ass’n, 375 S.W.3d at 477-

78.23

F.       Legislative history is irrelevant to unambiguous statutes and, even if
         considered, does not support the Chiropractic Board’s position.
         The Chiropractic Board contends that Senate Bill 361’s legislative history

should be considered by this Court, pointing to language in Rogers in which the

Court described the legislative history in that case as “illuminating.” 390 S.W.3d at

385. But the Rogers holding was not premised on legislative history. Instead, the

Court construed the statutes at issue and reached its conclusion on the basis of the

language of those statutes, merely noting that legislative history also supported its

interpretation. Id. at 385-86. It would be error for this Court to decide this case on

the basis of legislative history: the Texas Supreme Court has repeatedly advised

that legislative history should not be considered when a statute is unambiguous.

See Entergy Gulf States, 282 S.W.3d at 437, 443; Alex Sheshunoff Mgmt. Servs.,

L.P. v. Johnson, 209 S.W.3d 644, 652 n.4 (Tex. 2006). Because the relevant scope

of practice statutes are unambiguous, the Court need not consider the Chiropractic

Board’s lengthy discussion of legislative history. But if the Court believes a review




23
     See also CR 401-02, 408-13, 762-64.




                                           18
of legislative history is appropriate, the history supports the Acupuncture

Association’s position. 24

          The Board improperly relies on Representative Gray’s statements during

legislative debate on Senate Bill 361. It is axiomatic that a statement by a legislator

cannot make an unambiguous statute ambiguous nor does it evidence legislative

intent. See Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 191-92

(Tex. 2010); Ojo v. Farmers Grp., Inc., 356 S.W.3d 421, 435 (Tex. 2011). Thus,

Representative Gray’s statements do not inform of the Legislature’s intent. But

nonetheless,       Representative      Gray’s     statements   support   the   Acupuncture

Association, not the Chiropractic Board. Representative Gray correctly stated that

it was necessary to amend the Chiropractic Chapter to authorize chiropractors to

practice acupuncture without licensure by the Acupuncture Board because the

amendment to the definition of acupuncture “put [the practice of acupuncture by

chiropractors] under the Acupuncture Board” and would not have allowed

chiropractors to practice acupuncture without a license issued by and oversight

from that board.25

          The Chiropractic Board also relies on a 1997 letter from former

Representative Tom Uher, in which he told the Attorney General that “incisive”

24
     Acupuncture Association’s Brief, at 37-42.
25
     CR 478.




                                                  19
was not intended to be so broad as to prohibit all needle use. To the extent

Representative Uher’s statement is afforded any weight, it is belied by actual

legislative history. As explained in the Acupuncture Association’s opening brief,

Representative Uher offered a floor amendment in 1995 (the session before Senate

Bill 361 was enacted) that limited the practice of chiropractic to nonincisive

procedures, but with an exception for acupuncture, blood draws, and needle EMG.

Tex. Med. Ass’n, 375 S.W.3d at 469 n.7.26 His amendment, however, was

successfully amended by Representative Janek to remove the exceptions for

acupuncture and needle EMG, with Representative Janek stating “[t]his

amendment would take out any ability by the chiropractors to put needles into

people.” Id. Thus, contrary to Representative Uher’s post hoc statement, the intent

of the amendment as adopted was the opposite—it was meant to prohibit needle

use in its entirety, save one narrow exception. Id.

           The Board also misrepresents an irrelevant House Research Organization

bill analysis to argue that the amendment to the Acupuncture Chapter authorized

chiropractors to practice acupuncture.27 This bill analysis was not analyzing the

amendment to the definition of acupuncture in the Acupuncture Chapter. It was

analyzing the proposed committee amendments that would have amended the

26
     Id. at 38-39.
27
     Chiropractic Board’s Brief, at 8.




                                          20
Chiropractic Chapter to expressly authorize chiropractors to practice acupuncture

under the authority of the Chiropractic Board—and those amendments did not

become law. 28 As to the other two bill analyses referred to by the Board, one of

them says nothing about any intent to allow chiropractors to practice acupuncture

without a license issued by the Acupuncture Board. 29 The other states that the

intent of the Senate’s amendment to the definition of acupuncture in the

Acupuncture Chapter was to allow chiropractors to practice acupuncture,30 but it

also acknowledged that the amendment was stricken to instead amend the

Chiropractic Chapter to allow chiropractors to practice acupuncture.31

G.         The Court should decline to read the Acupuncture Chapter’s scope of
           practice and the Chiropractic Chapter’s scope of practice in pari
           materia.
           The Court should not accept the Chiropractic Board’s invitation to adopt the

Attorney General’s position that the Acupuncture and Chiropractic Chapters’ scope

of practice definitions should be read in pari materia. At the outset, an Attorney

General opinion is simply advisory and is not binding authority on a court. City of

San Antonio v. Tex. Att’y Gen., 851 S.W.2d 946, 950 (Tex. App.—Austin 1993,


28
     CR 468-74.
29
     CR 459-63.
30
     CR 507-12.
31
     Id.




                                            21
writ denied). Further, because the Chiropractic and Acupuncture Chapters are clear

and unambiguous, it is inappropriate to resort to extrinsic aids of construction.

Greater Houston P’ship, 468 S.W.3d at 58; City of Round Rock v. Rodriguez, 399

S.W.3d 130, 137 (Tex. 2013). But to the extent the Court looks to the Attorney

General’s opinion for guidance, the Court should be unpersuaded.

      As explained, the Occupations Code is delineated into chapters with each

regulating a distinct profession, such as physicians, physician assistants, nurses,

chiropractors, and acupuncturists. Each chapter has its own board regulating its

own profession, not any other profession. The statutory scope of chiropractic is

established by the Chiropractic Chapter, not any other chapter of the Occupations

Code. See Tex. Med. Ass’n, 375 S.W.3d at 467. Further, the Legislature has granted

the Chiropractic Board the power to regulate, and adopt rules governing the

practice of, chiropractic, not any other profession. TEX. OCC. CODE §§ 201.151-

.152. To conclude that the Chiropractic Board also has the authority to adopt rules

regulating acupuncture—a practice that is under the domain of a separate state

agency—is to strip the specific powers the Legislature has delegated to each

agency of any purpose. If each profession regulated under the Occupations Code

can creatively “borrow” words from entirely separate regulatory regimes governing

other professions to expand its own limited scope of practice, what was the




                                        22
purpose of creating specific scopes of practice for distinct professions, each with

its own statutorily-mandated educational, training, and licensure requirements?

      Indeed, the purpose of the Occupations Code provisions regulating

healthcare professionals is to protect public safety and health. For this reason,

courts have declined to conflate entirely separate chapters of the Occupations

Code. See Neasbitt v. Warren, 22 S.W.3d 107, 111 (Tex. App.—Fort Worth 2000,

no pet.); Lenhad v. Butler, 745 S.W.2d 101, 105 (Tex. App.—Fort Worth 1988,

writ denied).

      When the Legislature intends to assign a meaning from one chapter of the

Occupations Code into another, it does so explicitly. See, e.g., TEX. OCC. CODE

§§ 157.051, 162.052. The reason for this is apparent: it is nonsensical for a reader

of the Occupations Code to be required to consult an entirely separate chapter that

is not cross-referenced or mentioned in a profession’s governing chapter to

determine the actual scope of the profession’s practice. See Molinet v. Kimbrell,

356 S.W.3d 407, 411 (Tex. 2011). Thus, when the Legislature does not incorporate

a term from one statute explicitly into another statute, courts will not assume it

intended to do so. See, e.g., DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 410

(Tex. App―Dallas 2010, pet denied); In re Doe 3, 19 S.W.3d 300, 304 (Tex.

2000) (Gonzales, J., concurring).




                                        23
      Moreover, it is particularly improper to “import[ ] a definition from a

different statute adopted for different purposes.” Matagorda Cnty. Appraisal Dist.

v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 335 (Tex. 2005). If statutes

concern unrelated subjects, “[a] word defined in one act does not necessarily

determine the word’s meaning in another act dealing with a different subject.”

Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675, 678 (Tex. Civ. App.—

Houston [14th Dist.] 1974, no writ). Nothing in the Chiropractic Chapter indicates

any legislative intent to apply the definition of “acupuncture” in the entirely

separate Acupuncture Chapter to the Chiropractic Chapter in order to determine—

and exceed—the Chiropractic Chapter’s statutory scope. While the Chiropractic

Board attempts to label the Acupuncture Chapter and Chiropractic Chapter as

addressing the same subject matter, it fails to explain what common subject matter

they address: to the contrary, one governs the profession of acupuncture and the

other the distinct profession of chiropractic.

      This Court has repeatedly refused to read statutes in pari materia when they

were not written to achieve the same objective. See Nat’l Media Corp. v. City of

Austin, No. 03-12-00188-CV, 2014 WL 4364815, at *1-2 (Tex. App.—Austin

Aug. 27, 2014, no pet.); Tex. State Bd. of Chiropractic Exam’rs v. Abbott, 391

S.W.3d 343, 347-49 (Tex. App.—Austin 2013, no pet.); In re JMR, 149 S.W.3d

289, 294 (Tex. App.—Austin 2004, no pet.). Under this Court’s precedent, the


                                          24
Chiropractic Board may not use an isolated provision in another Occupations Code

chapter that contains no reference to the practice of chiropractic to expand

chiropractic’s limited scope of practice. See Brooks v. Tex. Med. Bd., No. 03-14-

00239-CV, 2015 WL 3827327, at *2 (Tex. App.—Austin June 18, 2015, no pet.).

H.     The Acupuncture Association’s statutory construction argument is not
       dependent on factual safety issues.
       The Chiropractic Board incorrectly argues that the Acupuncture Association

has raised factual safety issues that are not susceptible to summary judgment. The

Acupuncture Association instead asserts that the Legislature has statutorily

determined what education and training is required for the safe and effective

practice of acupuncture. See, e.g., TEX. OCC. CODE §§ 205.203, .206; see also

Andrews v. Ballard, 498 F. Supp. 1038, 1054 (S.D. Tex. 1980). 32 The Board lacks

authority to second-guess the education and training that the Legislature has said is

required.

       Indeed, this Court recently observed—as it has done many times—that the

purpose of occupational practice statutes is to protect the public from unqualified



32
   The Chiropractic Board has filed a motion to strike all references to websites made by the
Acupuncture Association in its opening brief. The Acupuncture Association has already
responded to that motion, but notes again that the Association’s argument is one of statutory
construction. The internet material noted in the Association’s brief is intended to provide
background information for the Court and is not “evidence” to support any disputed factual
assertions.




                                             25
practitioners. Psychological Assocs., 439 S.W.3d at 603. As a matter of law,

because chiropractors have not completed the statutorily-required education and

training for the practice of acupuncture, chiropractors are (as determined by the

Legislature) unqualified to perform the procedure. The Acupuncture Association

does not challenge “the relative qualifications of licensed chiropractors versus

licensed acupuncturists to perform acupuncture”33: it challenges chiropractors’ lack

of the educational qualifications expressly required by the Legislature.34

          Further, the Board is wrong that safety is irrelevant to this Court’s decision.

First, as mentioned, the Court should avoid interpreting statutes to lead to absurd

results. Blair, 408 S.W.3d at 848. Second, the Court must consider the result of its

interpretation—and the result here would be a risk to public health and

contravention of the purpose of occupational regulations. See City of Houston v.

Clark, 197 S.W.3d 314, 318 (Tex. 2006). Additionally, the Board’s pattern of

aggrandizing its scope of practice to promote its own profession rather than to




33
     Chiropractic Board’s Brief, at 14.
34
   While the Chiropractic Board in the trial court attached a conclusory, self-serving affidavit by
a chiropractor who practices acupuncture without a license, the affidavit failed to create any
relevant fact dispute. CR 714-15. The affidavit merely stated the chiropractor’s belief that
chiropractors may practice acupuncture without the education or training the Legislature has
declared is necessary for the safe and effective performance of the procedure. The Board points
to no authority supporting the proposition that an individual may second-guess or overrule the
Legislature—and he cannot, as a matter of law.




                                               26
protect the public is relevant to the Court’s consideration because it counsels

against granting the Board any deference in its interpretation of the relevant laws.

       Because the Board’s rules authorizing chiropractors to practice acupuncture

exceed the statutory scope of the practice of chiropractic, this Court should reverse

the trial court’s judgment and render judgment for the Acupuncture Association. 35

                                               II.
       The statutory scheme purportedly authorizing chiropractors to
       practice acupuncture with significantly less education and
       training in acupuncture than licensed acupuncturists violates
       Texas Constitution, Article XVI, Section 31.
       The Chiropractic Board argues that the prohibition in the Texas Constitution

on the Legislature preferring one school of medicine over another does not apply

because chiropractic is not a school of medicine. See TEX. CONST. art. XVI, § 31

(“The Legislature may pass laws prescribing the qualifications of practitioners of


35
   To the extent the Court believes any fact issues exist, the Acupuncture Association asks the
Court to remand for a new trial. There is no merit to the Board’s claim that the Acupuncture
Association waived the right to a new trial by failing to raise a fact issue in response to the
Board’s summary judgment motion. Both parties sought summary judgment on grounds that this
dispute is a question of statutory construction. And the Acupuncture Association has claimed that
the Board’s rules present public safety concerns and that acupuncture needles are incisive, as a
matter of statutory and rule construction. The Acupuncture Association also asked the trial court
to reconsider its order or, alternatively, grant a new trial. CR 767-72. If the Court believes the
issue of the Board’s authority to adopt the rules requires consideration of facts beyond the
statutory and rule language, it would be appropriate to remand for a new trial. See TEX. R. APP.
P. 43.2(d), 43.3(a); Coker v. Coker, 650 S.W.2d 391, (Tex. 1983) (determining that when both
parties moved for summary judgment claiming the issue was one of law, it was proper to reverse
and remand for the trial court to determine issues of fact since fact issues precluded summary
judgment for both parties).




                                               27
medicine in this State …, but no preference shall ever be given by law to any

schools of medicine.”). The Acupuncture Association agrees that when

chiropractors practice chiropractic, they are exempt from the Medical Practice

Act. See TEX. OCC. CODE § 151.052(3) (exempting “a licensed chiropractor

engaged strictly in the practice of chiropractic as defined by law”). But the same is

not true when chiropractors practice acupuncture. The Board’s response misses

the point of the Acupuncture Association’s argument.

      The Acupuncture Association argues that in the event the Court concludes

that the amendment to the Acupuncture Chapter authorized chiropractors to

practice acupuncture without a license from the Acupuncture Board, and without

completing the extensive training required for that license, then the statutory

scheme is unconstitutional because it prefers chiropractors over acupuncturists by

allowing chiropractors to practice acupuncture with less training than

acupuncturists.

      Both acupuncture and chiropractic were historically considered practices of

medicine that could only be performed by physicians. Thompson, 570 S.W.2d at

130; Teem v. State, 183 S.W. 1144, 1147-48 (Tex. Crim. App. 1916). While

chiropractic was eventually exempted from the Medical Practice Act (so long as it

is strictly practiced within the confines of the Chiropractic Chapter), acupuncture

has never been fully severed, and the Acupuncture Board still operates under the


                                         28
supervision of the Texas Medical Board. See, e.g., TEX. OCC. CODE §§ 151.052,

205.101; Andrews, 498 F. Supp. at 1039-40. Further, while chiropractic is limited

to treating the musculoskeletal system (TEX. OCC. CODE § 201.002(b)),

acupuncture, by its statutory definition, treats any condition in the human body (id.

§ 205.001(2)). Acupuncture is therefore a practice of medicine.

      While the Board is correct that chiropractic is not the practice of medicine

by virtue of its exemption from the Medical Practice Act, this is only the case so

long as it is practiced strictly in accordance with its statutory scope. Id.

§§ 151.002(13), 151.052. If it is not practiced in this strict manner, it is not only

the practice of medicine, but it is also the unauthorized practice of medicine. See

Tex. Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Exam’rs, 254 S.W.3d 714,

717, 721 (Tex. App.—Austin 2008, pet. denied). Chiropractors who practice

acupuncture are not strictly engaged in the practice of chiropractic; thus, they are

practicing medicine. Further, as noted, a practice that encompasses the whole body

is the practice of medicine. Schlichting v. Tex. State Bd. of Med. Examn’rs, 310

S.W.2d 557, 564 (Tex. 1958). If a chiropractor treats the entire body, such as by

performing acupuncture, the chiropractor ceases to strictly practice chiropractic

and instead is practicing medicine. Id.

      The Chiropractic Board has admittedly authorized chiropractors to practice

acupuncture without a license from the Acupuncture Board and with limited


                                          29
training (100 hours) in the procedure. Acupuncturists, on the other hand, are

required to hold a license issued by the Acupuncture Board and complete intensive

training and education (2,625 hours or more over four years) to perform

acupuncture. TEX. OCC. CODE §§ 205.203, .206, .255; 22 TEX. ADMIN. CODE

§§ 183.2, 183.4. As the Texas Supreme Court concluded in Schlichting, the Texas

Constitution prohibits allowing one group of practitioners to participate in an area

of the practice of medicine on less onerous terms than another group of

practitioners:

      [T]o allow [a practitioner] to be licensed upon easier terms than those
      required for the practice of ‘medicine’ would violate … the state
      Constitution …. The same would be true should we permit it to be
      practiced without any license at all, while enforcing a statute that
      requires practitioners of ‘medicine’ to be licensed and on quite
      onerous conditions.

310 S.W.2d at 564. If the statutory scheme authorizes chiropractors to practice

acupuncture without a license from the Acupuncture Board, and with far less

onerous education requirements, the Legislature “prefers” chiropractors over

acupuncturists, in violation of Texas Constitution, Article XVI, Section 31.

                                        III.

      The legislation that purportedly authorized chiropractors to
      practice acupuncture violates the one-subject rule in Texas
      Constitution, Article III, Section 35(a).
      Because Texas Constitution, Article III, Section 35(a) prescribes that a bill

containing more than one subject is unconstitutional, if Senate Bill 361—the


                                        30
Acupuncture Board’s sunset legislation—enlarged the practice of chiropractic to

include acupuncture, it violated the one-subject rule. The Chiropractic Board

incorrectly contends that this constitutional mandate is inapplicable because Senate

Bill 361 was intended to exempt chiropractors practicing acupuncture from the

Acupuncture Chapter’s licensing and oversight requirements, and thus was related

to the subject of the functions of the Acupuncture Board.

      The single subject of sunset legislation is an executive agency, not the

substantive policy subject to that agency’s oversight. In fact, the sunset statute

itself indicates that matters tangentially related to agency continuance should be

addressed in “other legislation,” thus confirming the distinct nature of the subject

matter. See TEX. GOV’T CODE § 325.015(b)(2). As a consequence, sunset

legislation addressing the structure of the Acupuncture Board cannot expand or

contract the practice of chiropractic.

      The Board attempts to compare the Medical Practice Act’s exemptions for

certain medical professionals (Texas Occupations Code, Section 151.052), to the

amendment to the Acupuncture Chapter, claiming that Senate Bill 361 similarly

exempted chiropractors from the Acupuncture Chapter. This convoluted argument

stumbles at the gate. First, there is no indication the exemptions in the Medical

Practice Act were enacted as part of a different agency’s sunset bill. Second, the

exemptions in the Medical Practice Act are expressly stated. But there is nothing in


                                         31
the Acupuncture Chapter stating that chiropractors are exempt from the

requirements of that chapter.

      As was concluded in the House, the amendments to the Chiropractic Chapter

authorizing chiropractors to practice acupuncture were not germane to the

Acupuncture Board’s sunset bill. Because these direct amendments were not

germane, it follows that an amendment purportedly indirectly authorizing the same

conduct is also not germane. See W. Orange-Cove Consol. Indep. Sch. Dist. v.

Alanis, 107 S.W.3d 558, 600 (Tex. 2003). Germaneness and the constitutional one-

subject mandate are one and the same. See Jessen Assocs., Inc. v. Bullock, 531

S.W.2d 593, 601 (Tex. 1976). Thus, if the amendment to the Acupuncture Chapter

authorizes chiropractors to practice acupuncture, it rendered that portion of the bill

unconstitutional.

                                         IV.

      The Chiropractic Board has waived any argument regarding its
      laches defense.
      Though the Chiropractic Board has now abandoned its statute of limitation

defense, it invites the Court—without argument—to affirm the judgment on the

basis of laches. In the trial court, the Board did not argue laches in its motion for

summary judgment or in response to the Acupuncture Association’s cross-motion.

Thus, this defense is waived. TEX. R. CIV. P. 166a(c); Fed. Deposit Ins. Corp. v.

Lenk, 361 S.W.3d 602, 611 (Tex. 2012). The Board also has waived its laches


                                         32
argument by failing to adequately brief it in this Court. TEX. R. APP. P. 38.1(i);

Foster v. City of El Paso, 396 S.W.3d 244, 258 (Tex. App.—El Paso 2013, no

pet.). The Court should not consider the laches argument.

                                       PRAYER
         The Texas Association of Acupuncture and Oriental Medicine prays that the

Court:

         (1)   reverse the trial court’s judgment, render judgment for the
               Association, and declare invalid and enjoin 22 Texas Administrative
               Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14 (previously
               §§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21);

         (2)   alternatively, reverse the trial court’s judgment, render judgment for
               the Association, and declare that the statutory scheme created by
               Senate Bill 361’s amendment to the Acupuncture Chapter is
               unconstitutional because the Legislature may not favor one school of
               medicine over another nor enact legislation containing more than one
               subject; or

         (3)   in the further alternative, if the Court believes any fact issue precludes
               rendition of judgment, reverse the trial court’s judgment and remand
               for a new trial.

The Association further prays for any other relief to which it may be entitled.




                                           33
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




 34
                      CERTIFICATE OF COMPLIANCE
      Appellant certifies that this Reply Brief of Appellant (when excluding the

caption, table of contents, index of authorities, signature, proof of service,

certificate of compliance, and appendix) contains 7,472 words.


                                            /s/ Craig T. Enoch
                                             Craig T. Enoch




                         CERTIFICATE OF SERVICE
      I hereby certify that, on November 18, 2015, the foregoing Reply Brief of

Appellant Texas Association of Acupuncture and Oriental Medicine was served

via electronic service on the following:


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



                                            /s/ Craig T. Enoch
                                             Craig T. Enoch




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