                                                                                    ACCEPTED
                                                                                03-15-00262-CV
                                                                                        7698756
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                          11/5/2015 11:49:41 AM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                             No. 03-15-00262-CV
  _______________________________________________________________
                                                           FILED IN
                                                    3rd COURT OF APPEALS
                        IN THE COURT OF APPEALS          AUSTIN, TEXAS
                    FOR THE THIRD DISTRICT OF TEXAS 11/5/2015 11:49:41 AM
                                AT 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 the 201st Judicial District Court Of Travis County, Texas
                       Cause No. D-1-GN-14-000355
__________________________________________________________________

         BOARD’S REPLY TO ACUPUNCTURE ASSOCIATION’S
          RESPONSE TO THE BOARD’S MOTION TO STRIKE

KEN PAXTON                              JOE H. THRASH
Attorney General of Texas               Assistant Attorney General
                                        State Bar No. 19995500
CHARLES E. ROY                          Administrative Law Division
First Assistant Attorney General        OFFICE OF THE ATTORNEY GENERAL OF
                                        TEXAS
JAMES E. DAVIS                          P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil       Austin, Texas 78711-2548
Litigation                              Telephone: (512) 475-4203
                                        Facsimile: (512) 320-0167
DAVID A. TALBOT, JR.                    Joe.Thrash@texasattorneygeneral.gov
Chief, Administrative Law Division
                                        ATTORNEYS FOR APPELLEES
         BOARD’S REPLY TO ACUPUNCTURE ASSOCIATION’S
          RESPONSE TO THE BOARD’S MOTION TO STRIKE

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

offers two justifications for its violation of Tex. R. App. P. 34.1 in its Response to

the Motion to Strike; neither avails. First, disclaiming any intent to supply evidence

that it failed to offer at the trial court level, TAAOM opines that citation of websites

in briefs is common practice and “one that the Office of the Attorney General

routinely follows.” Then, in an apparent about-face, TAAOM asks that the Court

take judicial notice of the cited material.

      The “everybody does it” excuse does not work with most parents of teenagers,

and should not work with this Court. The fact that people frequently run red lights

does not make the conduct legal. The question is not whether another attorney in a

different case cited a Court to information it can find on-line for that other lawyer’s

purpose in another suit. The question is whether these lawyers may permissibly cite

evidence outside the record they made at the trial court for the purpose of filling

evidentiary holes in that record.

      Next, tacitly admitting that the information that they want the Court to

consider is evidentiary in nature, TAAOM asserts that the Court may take judicial

notice of the material. See Response at 3. Although Rule 201(b) does permit a court

to take judicial notice “of a fact that is not subject to reasonable dispute” because it

can be accurately and readily determined from “sources whose accuracy cannot

                                              2
reasonably be questioned,” it does not permit an appealing party to bring new

evidence to the Court to create a dispute about a material fact that did not exist when

the trial court granted summary judgment. Tex. R. Evid. 201(b) (emphasis added).

      Furthermore, TAAOM misapplies Rule 201(b). Rather than asserting that the

facts stated on the website are “not subject to reasonable dispute” because of the

unquestionable accuracy of those sources, TAAOM argues that “it cannot

reasonably be questioned that these internet websites say what they say.” Id.

(emphasis added). This is an attempt to shift the Court’s attention away from the

accuracy of the website’s content to the accuracy of the website’s transcription of

content. Judicial notice is usually applied to documents such as highway names and

geographic designations within the court’s jurisdiction or matters of public record.

Apostolic Ch. v. American Honda Motor Co., 833 S.W.2d 553, 555-56 (Tex. App.—

Tyler 1992, writ denied); Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex. App.—

Houston [14th Dist.] 1991, no writ). An examination of the websites TAAOM cites

will establish that they do not have the reliability that would allow the Court to take

judicial notice of their content.

      The first information to which the Board objects best illustrates the fallacy of

TAAOM’s claim. In footnote 29 and again in footnote 36, TAAOM cites the

recording of a hearing held by the Board concerning acupuncture as practiced by

chiropractors. (https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3).


                                          3
No part of the recording of this hearing was introduced at the trial court. TAAOM

asserts that the Executive Director of the Board made a statement against interest

during the hearing in this footnote. TAAOM Brief at 21. It is the truth of this

statement that is at issue here, not whether the recording of the hearing was accurate.

No part of the recording of an oral hearing could meet the standard of “sources whose

accuracy may not reasonably be questioned.” Id. This is a blatant attempt to

introduce evidence into the appellate record that was not a part of the trial court

record.

      Other documents included in TAAOM’s Brief without reference to the record

are not primarily websites of accrediting bodies as TAAOM states in its response.

TAAOM Response at 3. The citations are primarily to college catalogs of both

acupuncture colleges and chiropractic colleges. Board’s Motion to Strike at 2-3.

This Court is asked not only to accept that the documents are correct, but also that

the various schools actually conform to the stated course offerings and curriculum.

The Court has no basis to accept that the accuracy “may not reasonably be

questioned.” Tex. R. Evid. 201(b).

      The documents relate to TAAOM’s argument that chiropractic education is

inadequate to prepare chiropractors to practice acupuncture in a safe and effective

manner. Yet, this issue is not properly before the Court in this appeal. As noted at

length in the Board’s Brief, this issue could be determined only after a factual


                                          4
determination, not on summary judgment. The trial court’s decision in this case is

based on statutory construction.     Thus, the documents are not relevant to the

determination of this Court whether or not the summary judgment was properly

granted.   Rule 201 applies only to adjudicative facts, those that apply to the

determination of the specific case. Emerson v. State, 880 S.W.2d 759, 764 (Tex.

Crim. App. 1994).        Here, global questions about comparative educational

requirements of the two types of colleges are legislative facts and not subject to Rule

201. Id. Thus, the determination of whether the Court should take notice of the facts

alleged by TAAOM is discretionary rather than mandatory under Rule 201. Id. at

765. Since the issue is not determinative to this appeal, the Court should reject

TAAOM’s request that the Court take notice of these documents.

                                      PRAYER

      The Board asks the Court to grant the Board’s Motion to Strike and not

consider the documents TAAOM has cited or any argument based on them.

                                        Respectfully submitted,

                                        KEN PAXTON
                                        Attorney General of Texas

                                        CHARLES E. ROY
                                        First Assistant Attorney General

                                        JAMES E. DAVIS
                                        Deputy Attorney General for Civil Litigation




                                          5
                                     DAVID A. TALBOT, JR.
                                     Chief, Administrative Law Division

                                      /s/ Joe H. Thrash
                                     JOE H. THRASH
                                     Bar No. 19995500
                                     Assistant Attorney General
                                     Administrative Law Division
                                     P. O. Box 12548, Capitol Station
                                     Austin, Texas 78711-2548
                                     Telephone: (512) 475-4203
                                     Facsimile: (512) 320-0167
                                     Joe.thrash@texasattorneygeneral.gov
                                     ATTORNEYS FOR APPELLEES


                        CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing Appellees’ Brief was served via
e serve and/or e-mail on this the 5th day of November, 2015 to the following:

Craig T. Enoch                       Via electronic service and/or email
ENOCH KEVER PLLC
600 Congress Avenue
Suite 2800
Austin, Texas 78701
cenoch@enochkever.com
Melissa A. Lorber
mlorber@enochkever.com
Shelby O’Brien
sobrien@enochkever.com
Telephone: (512) 615-1200
Facsimile: (512) 615-1198
Attorneys for Appellant Texas Association of
Acupuncture and Oriental Medicine


                                                   /s/ Joe H. Thrash
                                                  JOE H. THRASH
                                                  Assistant Attorney General

                                        6
