                                                                                 ACCEPTED
                                                                             03-15-00262-CV
                                                                                     7824224
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       11/13/2015 2:40:08 PM
                                                                           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 11/13/2015 2:40:08 PM
                            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
__________________________________________________________________

             APPELLEES’ SECOND 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
                APPELLEES’ SECOND MOTION TO STRIKE

      The Texas Board of Chiropractic Examiners and Yvette Yarbrough,

Executive Director (collectively, “Board”) move to strike those portions of the briefs

of amici Chiropractic Society of Texas, International Federation of Chiropractors &

Organizations, American College of Acupuncture and Oriental Medicine, AOMA

Graduate School of Integrative Medicine, and the Student Associations of American

College of Acupuncture and Oriental Medicine and AOMA Graduate School of

Integrative Medicine that rely on documents outside the Clerk’s Record and the

documents themselves, because they were not presented to or relied upon by the trial

court in rendering its judgment, and the documents are not part of the Clerk’s Record

or otherwise made a part of the record on appeal. Now that Appellee has moved to

strike those portions of Appellant’s brief that improperly rely on material that

Appellant failed properly to introduce in evidence in this case, these amici have been

enlisted to apprise the Court of these facts. Because these amicus briefs are merely

a back-door attempt to expand the evidentiary record before this Court, those

portions of the amicus briefs that rely on or incorporate the same documents that

Appellant sought to introduce should be struck, as well as other parts of the amicus

briefs that cite factual material outside the record.

      The objectionable portions of the amicus briefs include the following:

   1. Chiropractic Society of Texas letter brief at page 2:
      CST Bylaws, Article I stating the “Definition of Straight Chiropractic.”
                                           1
2. International Federation of Chiropractors & Organizations at page 3:
   The Association of Chiropractic Colleges, 2.0 ACC Position on Chiropractic,
   available at http://www.chirocolleges,org/paridigm_scope_practice.html.

3. American College of Acupuncture and Oriental Medicine:
   a. Footnote 2. National Certification Commission for Acupuncture and
      Oriental Medicine, NCCAOM Certification Handbook 2015, available at
      http://www.nccaom.org/wp-
      content/uploads/pdf/Certification%20Handbook.pdf.
   b. Footnote 3. National Board of Chiropractic Examiners, Acupuncture
      Brochure     (page     3,    Applicant     Eligibility), available at
      http://nbce.wpengine.com/wp-content/uploads/acu_brochure.pdf.
   c. Footnote 4. Chiropractic Board hearing, July 11, 2012.
      https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
   d. Footnote     5.    Houston       Chronicle     article,  available at
      http://www.chron.com/news/health/article/Doctors-increasingly-are-
      turning-to-acupuncture-4919724.php.

4. AOMA Graduate School of Integrative Medicine:
   a. Footnote 1. CCAOM Clean Needle Technique Manual 7th Edition, Part I:
      AOM Clinical Procedures, Safety, Adverse Events (AEs) and
      Recommendations          to     Reduce      AEs,      available   at
      http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.
      pdf.
   b. Footnote 2. Chiropractic Board hearing, July 11, 2012.
      https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
   c. Footnote 3. Chiropractic Board hearing, July 11, 2012.
      https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.

5. Student Associations of American College of Acupuncture and Oriental
   Medicine and AOMA Graduate School of Integrative Medicine:
   a. Footnote 2. Frisco Spinal Rehabilitation, Infertility, available at
      http://www.friscorehab.com/fertility-and-acupuncture.php. Frisco Spinal
      Rehabilitation,    Allergies    and     Acupuncture,     available   at
      http://www.friscorehab.com/allergies-and-acupuncture.php.
   b. Footnote 3. Ranger Chiropractic Clinic, Physicians, available at
      http://www.ranger-chiropractic.com/#!physicians/cipy.


                                    2
      Texas Rule of Appellate Procedure 34.1 states the following: “The appellate

record consists of the clerk’s record and, if necessary to the appeal, the reporter’s

record.” The documents listed above do not appear in, nor are they referenced in

any pleading that is a part of the clerk’s record. Amici are subject to the same rules

as the parties when filing briefs with the Court. Tex. R. App. P. 11(a). When these

documents are referenced in the amici’s briefs, the documents do not contain a

reference to the Clerk’s Record. Tex. R. App. P. 38.1(g). This Court may only

review the record as filed and may not consider documents neither in the record nor

considered by the trial court. Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771,

775 (Tex. App.—Dallas 2005, pet. denied). There is significant overlap between the

documents cited in the amicus briefs and the Appellant’s Brief. Just as the documents

and argument based upon them were improper in TAAOM’s Brief, they are

improper in the amicus briefs. Accordingly, this Motion to Strike should be granted

and the Court should not review the above documents cited by amici or the

arguments supported by these documents.

      Further, the Court should not take judicial notice of any of the documents.

Judicial notice is neither requested nor appropriate in this case. These documents

are matters of evidence that should have been introduced at the trial court to be

considered. For instance, two of the amici cite to a recording of a hearing before a

committee of the Board. This was objected to in TAAOM’s Brief and is still outside

                                          3
the record and inappropriate for judicial notice. Another amicus cites a newspaper

article. Clearly, this is not a source whose “accuracy may not reasonably be

questioned.” Tex. R. Evid. 201. Another cites advertisements from chiropractors

allegedly using acupuncture for treatment outside their scope of practice. Apart from

being irrelevant to the case before this Court, it appears intended only to incite

animosity toward the Board. Certainly it is not something of which the Court may

take judicial notice.


                                     PRAYER

      The Board asks the Court to grant this Appellees’ Second Motion to Strike

and delete from the consideration of this case all documents pertaining to factual

matters outside the Clerk’s Record and all arguments based upon those documents.

                                       Respectfully submitted,

                                       KEN PAXTON
                                       Attorney General of Texas

                                       CHARLES E. ROY
                                       First Assistant Attorney General

                                       JAMES E. DAVIS
                                       Deputy Attorney General for Civil Litigation

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




                                         4
                                     /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 CONFERENCE

     I hereby certify that I have conferred with opposing counsel concerning the
Second Motion to Strike and they are not in agreement with the Motion.

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


                     CERTIFICATE OF COMPLIANCE

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3) and relying
on the word count function in the word processing software used to produce this
document, I certify that the number of words in this document is 812.

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




                                       5
                        CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing Second Motion to Strike was served
via e-serve and/or e-mail on this the 13th 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

Matthew M. Mix D.C.
Chiropractic Society of Texas
312 E. Church St.
Livingston, TX 77351
info@texaschiropractic.org

Dr. Peter J. Kevorkian
International Federation of Chiropractors and Organizations
2276 Wassergass Road
Hellertown, PA 18055
www.IFCOchiro.org

John Paul Liang
American College of Acupuncture and Oriental Medicine
9100 Westpark Dr.
Houston, TX 77063
jpliang@acaom.edu




                                        6
William R. Morris
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
wmorris@aoma.edu

Linda Henderson
9100 Westpark Dr.
Houston, TX 77603
lhenderson@acaom.edu

Gene Kuntz II
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
gkuntz@student.aoma.edu

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




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