Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity ( 2015 )

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
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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).
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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
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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
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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
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