The opinion
ACCEPTED
03-14-00239-CV
4308282
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/27/2015 9:18:01 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00239-CV
____________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 2/27/2015 9:18:01 AM
____________________________________________________
JEFFREY D. KYLE
Clerk
DR. AMBER BROOKS, D.C.,
Appellant,
v.
TEXAS MEDICAL BOARD, et al.,
Appellees.
____________________________________________________
On Appeal from the 353rd Judicial District Court of Travis County, Texas
The honorable Timothy Sulak presiding
Cause No. D-1-GN-13-003617
____________________________________________________
APPELLEES’ UNOPPOSED MOTION FOR LEAVE
TO FILE POST-SUBMISSION BRIEF
____________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Pursuant to Tex. R. App. P. 38.7 and the Clerk’s notice to the parties dated
February 18 2015, Appellees; the Texas Medical Board and, in their official
capacities only, Mari Robinson (Executive Director), Irvin E. Zeitler, Jr., D.O., and
Paulette Southard; respectfully request the Court to grant them leave to file the
supplemental brief attached hereto as Exhibit A.
Dated: February 27, 2015
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.
Division Chief, Administrative Law
Division
/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
State Bar No. 24008890
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4191
Facsimile: (512) 320-0167
Email: ted.ross@texasattorneygeneral.gov
Attorneys for Appellees Texas Medical
Board, et al.
2
CERTIFICATE OF CONFERENCE
Pursuant to Tex. R. App. 10.1(5), the undersigned certifies that he conferred
with counsel for Appellant regarding the foregoing motion and was advised that he
does not object.
/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of
Appellate Procedure, a true and correct copy of the above and foregoing document
has been served on the following on this the 27th day of February 2015:
Robert D. Simpson, Of Counsel Via: Electronic Service and email
Andre D’Souza
Leichter Law Firm, PC
1602 E. 7th Street
Austin, Texas 78702
Email: robert@leichterlaw.com
andre@leichterlaw.com
/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
3
EXHIBIT A
NO. 03-14-00239-CV
____________________________________________________
IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
____________________________________________________
DR. AMBER BROOKS, D.C.,
Appellant,
v.
TEXAS MEDICAL BOARD, et al.,
Appellees.
____________________________________________________
On Appeal from the 353rd Judicial District Court of Travis County, Texas
The honorable Timothy Sulak presiding
Cause No. D-1-GN-13-003617
____________________________________________________
APPELLEES’ SUPPLEMENTAL BRIEF
___________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
Appellees; the Texas Medical Board and, in their official capacities only, Mari
Robinson (Executive Director), Irvin E. Zeitler, Jr., D.O., and Paulette Southard
(hereinafter collectively referred to as the “TMB”) respectfully submit the following
supplemental brief in the captioned appeal.
1. The TMB submits this supplemental brief for the purpose of clarifying
two points raised in the reply brief filed by Appellant, Amber Brooks (“Brooks”) on
August 11, 2014.
2. On page 19 of her reply brief, Brooks states that the TMB referred to
Tex. Gov’t Code § 2001.052 in arguing that cease and desist proceedings are not
subject to the Texas Administrative Procedure Act (“APA”) in the first place. See
the TMB’s brief at 14. The TMB intended to refer to Tex. Gov’t Code § 2001.054,
not .052. (The TMB clearly referred to and discussed § 2001.054 on the same page
of its brief to which Brooks refers).
3. On page 21 of her reply brief, Brooks states that the TMB cited Tex.
Occ. Code § 151.504(d) in support of its contention that the Veterinary Board’s
statute specifically provides that its cease and desist proceedings are subject to the
APA. See the TMB’s brief at 16. The TMB intended to refer to Veterinary Board
rule 575.40(d)(2), which specifically provides that, in cease and desist proceedings,
“the Board may refer the complaint and investigative file to the State Office of
Administrative Hearings for a contested case proceeding (thus subjecting Veterinary
Board cease and desist proceedings to APA procedures).” 22 Tex. Admin. Code §
575.40(d)(2). Compare TMB Rule 187.83(e), outlining detailed procedures for
cease and desist proceedings before a TMB panel (and not the contested case
procedures under the APA). 22 Tex. Admin. Code § 187.83(e).
Dated: February 27, 2015
2
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.
Division Chief, Administrative Law
Division
/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
State Bar No. 24008890
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4191
Facsimile: (512) 320-0167
Email: ted.ross@texasattorneygeneral.gov
Attorneys for Appellees Texas Medical
Board, et al.
3
CERTIFICATE OF SERVICE
I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of
Appellate Procedure, a true and correct copy of the above and foregoing document
has been served on the following on this the 27th day of February 2015:
Robert D. Simpson, Of Counsel Via: Electronic Service and email
Andre D’Souza
Leichter Law Firm, PC
1602 E. 7th Street
Austin, Texas 78702
Email: robert@leichterlaw.com
andre@leichterlaw.com
/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
4