                                                                                     ACCEPTED
                                                                                 03-15-00262-CV
                                                                                         7603947
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           10/29/2015 3:28:53 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK

                  No. 3-15-00262-CV
                                                               FILED IN
                                                        3rd COURT OF APPEALS
                                                             AUSTIN, TEXAS
                       In the Court of Appeals          10/29/2015 3:28:53 PM
                   Third District of Texas — Austin         JEFFREY D. KYLE
                                                                 Clerk

TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE,

                                                         Appellant,
                                  v.

  TEXAS BOARD OF CHIROPRACTICE EXAMINERS AND YVETTE
YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,

                                                         Appellees.


       On Appeal from 201st District Court, Travis County, Texas
                    Cause No. D-1-GN-14-000355



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




                           Craig T. Enoch
                          Melissa A. Lorber
                           Shelby O’Brien
                        ENOCH KEVER PLLC
                  600 Congress Avenue, Suite 2800
                         Austin, Texas 78701
                 (512) 615-1200 / (512) 615-1198 fax

                       Attorneys for Appellant


                                  1
       Appellant Texas Association of Acupuncture and Oriental Medicine

(“Acupuncture Association”) files this response to Appellees Texas Board of

Chiropractic Examiners and Yvette Yarbrough, in her Official Capacity as

Executive Director of the Chiropractic Board’s (“Chiropractic Board”) motion to

strike. The Acupuncture Association requests for the Court to deny the motion.

       The Chiropractic Board asks the Court to strike a laundry list of footnotes in

the Acupuncture Association’s brief: specifically, footnotes 29, 32-36, and 38-39.

These footnotes simply reference websites that are readily available to the public

on the internet. But the Chiropractic Board claims that because the cited websites

are not in the clerk’s or reporter’s records, the Acupuncture Association may not

cite them in its brief.

       Links to these websites were included in the Acupuncture Association’s

brief for the Court’s reference, if the Court wishes to consult them. The question

before this Court is one of law, not one of fact that is dependent on evidence. The

Acupuncture Association is not attempting to put new evidence into the record by
                                                         1
attaching copies of documents to its appendix. Referencing internet websites in

1
  See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet.
denied) (“an appellate court cannot consider documents or hearings that are cited in the brief and
attached as appendices if they are not formally included in the record on appeal”) (emphasis
added); In re Estate of Bendtsen, 230 S.W.3d 823, 830 (Tex. App.—Dallas 2007, pet. denied) (a
court should not consider evidence attached to a brief that is not included in the appellate
record—such as new affidavits).




                                                2
appellate briefs—even if hard copies of the linked documents were not put into

evidence in the trial court—is a common practice, one that the Office of the
                                         2
Attorney General routinely follows.

       Further, a court may 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 reasonably be questioned.” TEX. R. EVID. 201(b).

A court may take judicial notice at any state in a proceeding. Id. 201(d); see also

Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex.

1994). Here, it cannot reasonably be questioned that these internet websites say

what they say. Indeed, the Chiropractic Board does not even attempt to question

these websites’ accuracy. The cited websites are mostly those of accrediting bodies

that are expressly referenced in Acupuncture Board and Chiropractic Board rules.

Thus, the Court may take judicial notice of these websites.




2
 See Glenn Hegar, in his Official capacity as Texas Comptroller, and Ken Paxton, in his Official
Capacity as Texas Attorney General v. Texas Small Tobacco Coalition, Petitioner’s Brief on the
Merits, at 8, 10, 12, 18-19, 24-25, 59, available at:
 http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=bc596889-bf61-4627-
 9d27-aabddbfb9bb9&coa=cossup&DT=BRIEFS&MediaID=19589422-da99-407a-81c1-
 61f33732e971.




                                               3
                                   PRAYER

       Appellant Texas Association of Acupuncture and Oriental Medicine

respectfully prays that this Court deny the Chiropractic Board’s motion to strike.

The Acupuncture Association further requests any other relief to which it may be

entitled.

                                     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




                                        4
                            CERTIFICATE OF SERVICE

      I hereby certify that, on October 29, 2015, the Acupuncture Association’s

Response to the Chiropractic Board’s Motion to Strike was served via electronic

service on the following:

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


                                           /s/ Craig T. Enoch
                                          Craig T. Enoch




                                      5
