# Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director// Ellen Jefferson, D.V.M. v. Ellen Jefferson, D.V.M.// Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director > Texas Court of Appeals, 3rd District (Austin) · July 9, 2015 URL: https://www.frixlaw.com/law-library/cases/4069399 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** July 9, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4069399 ## How later opinions describe it (automated extraction) - holding Motor Vehicle Board granted exclusive jurisdiction in statute, but not over plaintiff’s declaratory judgment claims ## Opinion text ACCEPTED 03-14-00774-CV 5993560 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/9/2015 10:29:38 AM JEFFREY D. KYLE CLERK No. 03-14-00774-CV IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS AT AUSTIN 7/9/2015 10:29:38 AM _____________________________________________________________________________________________________________________ JEFFREY D. KYLE Clerk ELLEN JEFFERSON, D.V.M. Appellant, v. TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS AND NICOLE ORIA, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR Appellees. __________________________________________________________________ On Appeal from the 250th Judicial District Court of Travis County, Texas __________________________________________________________________ BRIEF OF APPELLANT ELLEN JEFFERSON, D.V.M. DAVID F. BROWN RYAN CLINTON State Bar No. 03108700 State Bar No. 24027934 dbrown@ebblaw.com rdclinton@dgclaw.com DAVID P. BLANKE DAVIS, GERALD & CREMER, P.C. State Bar No. 02453600 111 Congress Ave., Suite 1660 dblanke@ebblaw.com Austin, Texas 78701 EWELL, BROWN & BLANKE, LLP Ph: (512) 537-9938 111 Congress Ave., 28th Floor Fax: (432) 687-1735 Austin, TX 78701 Ph: (512) 457-0233 Counsel for Appellant Ellen Jefferson, D.V.M. Oral Argument Requested IDENTITY OF PARTIES Appellant/Plaintiff: Ellen Jefferson, D.V.M. (“Dr. Jefferson”) Counsel for Dr. Jefferson: Trial & Appellate Counsel: David F. Brown State Bar No. 03108700 dbrown@ebblaw.com David P. Blanke State Bar No. 02453600 dblanke@ebblaw.com Ewell, Brown & Blanke, LLP 111 Congress Ave., 28th Floor Austin, TX 78701 Ph: (512) 457-0233 Appellate Counsel: Ryan Clinton State Bar No. 24027934 rdclinton@dgclaw.com Davis, Gerald & Cremer, P.C. 111 Congress Ave., Suite 1660 Austin, Texas 78701 Ph: (512) 537-9938 Fax: (432) 687-1735 ii Appellees/Defendants: Texas State Board of Veterinary Medical Examiners (“TBVME”) and Nicole Oria, In Her Official Capacity as Executive Director Counsel for Defendants: Andrew Lutostanski State Bar No. 24072217 andrew.lutostanski@texasattorneygeneral.gov Ted A. Ross State Bar No. 24008890 ted.ross@texasattorneygeneral.gov Office of the Attorney General of Texas Administrative Law Division P. O. Box 12548 Austin, TX 78711 (512) 475-4200 iii TABLE OF CONTENTS Identity of Parties ...................................................................................................... ii Table of Authorities ................................................................................................ vii Statement of the Case............................................................................................. xiii Statement Regarding Oral Argument ......................................................................xv Issues Presented ..................................................................................................... xvi Introduction ................................................................................................................1 Statement of Facts ......................................................................................................4 Summary of the Argument.......................................................................................19 Argument..................................................................................................................21 I. The Trial Court Erred by Dismissing Dr. Jefferson’s Uniform Declaratory Judgment Act Claims for Failure to First Exhaust Administrative Remedies Because—As a Matter of Law—the Doctrine Does Not Apply. .............................................................................21 A. The Baseline Rules: Texas District Courts Have Subject-Matter Jurisdiction Unless It Is Expressly Taken Away, and Texas Governmental Agencies Have No Jurisdiction Unless It Is Expressly Given........................................................................................22 B. Dr. Jefferson Was Not Required to Exhaust Administrative Remedies Because the Legislature Did Not Confer Upon the TBVME Exclusive Jurisdiction Over the Treatment of Animals by Their Owners; And Regardless, Several Exceptions to the Exhaustion Doctrine Apply Here. ............................................................23 1. The Legislature did not confer upon the TBVME exclusive jurisdiction over the care and treatment of animals by their owners, owners’ employees, or designated caretakers. ......................24 iv 2. Even if the Legislature had granted the TBVME exclusive jurisdiction over conduct covered by the “owner exemption,” several exceptions to the exhaustion-of-remedies doctrine apply to retain the trial court’s jurisdiction over Dr. Jefferson’s UDJA claims. ......................................................................................30 a. The exhaustion doctrine does not divest a district court of jurisdiction to adjudicate claims alleging that a governmental agency is acting outside its authority. ............................................31 b. The exhaustion doctrine does not divest a district court of jurisdiction if forcing a plaintiff to first exhaust administrative remedies would subject the plaintiff to irreparable harm. .............33 c. The exhaustion doctrine does not divest a district court of jurisdiction to determine legal questions .......................................36 d. The exhaustion doctrine does not require a plaintiff to participate in an “exercise in futility.” ...........................................37 C. The Trial Court’s Dismissal of Dr. Jefferson’s UDJA Claims Is Also Not Justified on the Unreached Grounds Presented in Defendants’ Plea to the Jurisdiction................................................................................................40 II. The Trial Court Should Have Declared—and This Court Should Declare— That the Board’s Prosecution of Dr. Jefferson for Her Treatment and Care of Animals Owned by San Antonio Pets Alive Is Ultra Vires and Unlawful. .. 44 A. Dr. Jefferson’s Care and Treatment of San Antonio Pets Alive’s Animals Was “By the Owner of the Animal, an Employee of the Owner, or a Designated Caretaker of the Animal.” .....................................................45 B. Dr. Jefferson Established San Antonio Pets Alive with the Intent to Save Animals’ Lives—Not to Violate a Law. ..................................................50 III. The Trial Court Also Erred by Denying Dr. Jefferson’s Request for Mandamus Relief. ..........................................................................................53 IV. The Trial Court Erred by Issuing Unrequested, Ambiguous, and Legally Incorrect Declarations....................................................................................57 v Prayer .......................................................................................................................60 Certificate of Service ...............................................................................................62 Certificate of Compliance ........................................................................................63 APPENDIX Exhibit A - Trial Court Judgment (1.CR.855-57) Exhibit B - Findings of Fact and Conclusions of Law (2.C.R. 36-38) Exhibit C - Owner Exemption to Veterinary Licensing Act (TEX. OCC. CODE 801.0004) Exhibit D - TBVME 2012 “Board Notes” (3.RR.PX18:EJ000638) Exhibit E - SOAH Order vi TABLE OF AUTHORITIES CASES Abbott Labs. v. Gardner, 387 U.S. 136 (1967), abrogated on other grounds in Califano v. Sanders, 430 U.S. 99 (1977) ....................................................... 41, 42 Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor & Assocs., 267 S.W.3d 413 (Tex. App.—Houston [14th Dist.] 2008, no pet.) .....................32 BCY Water Supply Corp. v. Residential Inv. Inc., 170 S.W.3d 596 (Tex. App.—Tyler 2005, pet. denied) .......................................26 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ..................................................................................26 Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12 (Tex. 2000) ............................................................................. 25, 26 City of Hous. v. Williams, 99 S.W.3d 709 (Tex. App.—Houston [14th Dist.] 2003, no pet.) .......................34 City of Round Rock v. Whiteaker, 241 S.W.3d 609 (Tex. App.—Austin 2007, pet. denied) ............ 22, 23, 26, 54, 59 City of Sherman v. Pub. Util. Comm’n of Tex., 643 S.W.2d 681 (Tex. 1983) ......................................................................... 24, 29 Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945) .................................................................54 Dir. of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264 (Tex. 1980) ................................................................................54 Dow Chem. v. Francis, 46 S.W.3d 237 (Tex. 2001) ..................................................................................44 Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) .............................................................................. 22, 23 vii Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) ................................................................................54 Forest Oil Corp. v. El Rucio Land & Cattle Co., 446 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) ......................27 Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934) ...................................................... 46, 47, 48 Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Auth., 96 S.W.3d 519 (Tex. App.—Austin 2002, pet. denied) .......................... 32, 36, 46 G&H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) ................................................................................58 Gen. Exch. Ins. Corp. v. Appling, 144 S.W.2d 699 (Tex. Civ. App.—El Paso 1940, no writ) ........................... 58, 59 Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.) ....................................................................................................56 Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997) ......................................................................... 46, 47 Hexter Title & Abstract Co., Inc. v. Grievance Comm., Fifth Cong. Dist., State Bar of Tex., 142 Tex. 506, 179 S.W.2d 946 (Tex. 1944) .........................................................46 Holloway v. Skinner, 898 S.W.2d 793 (Tex. 1995) ................................................................................46 Hous. Fed’n of Teachers, Local 2415 v. Hous. Indep. Sch. Dist., 730 S.W.2d 644 (Tex. 1987) ................................................................... 33, 34, 36 Hous. Indep. Sch. Dist. v. Rose, No. 01-13-00018-CV, 2013 WL 3354724 (Tex. App.—Houston [1st Dist.] July 2, 2013, no pet.) (mem. op.) .......................................................................... 37, 38 In re McAllen Med. Ctr, Inc., 275 S.W.3d 458 (Tex. 2008) (orig. proceeding) ..................................................55 viii In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding) ..................................................55 In re Vesta Ins. Grp., Inc., 192 S.W.3d 759 (Tex. 2006) ................................................................................46 Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d 97 (Tex. App.—Austin 2014, no pet.)....................................... 56, 57 Larry Koch, Inc. v. Tex. Natural Res. Conservation Comm’n, 52 S.W.3d 833 (Tex. App.—Austin 2001, pet. denied) ................................ 32, 33 Mag-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617 (Tex. App.—Austin 2005, pet. denied) ........................ 32, 34, 36 Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d 17 (Tex. App.—Austin 2008, pet. dism’d) ............................... 41, 42 Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex. 1998) ................................................................................49 Onoray Davis Truck Co. v. Ford Motor Credit Co., 690 S.W.2d 40 (Tex. App.—Houston [14th Dist.] 1985, no writ).......................58 Perry v. Del Rio, 66 S.W.3d 239 (Tex. 2001) ..................................................................................41 R.R. Comm’n of Tex. v. CenterPoint Energy Res. Corp., No. 03-13-00533-CV, 2014 WL 4058727 (Tex. App.—Austin Aug. 14, 2014, no pet.) (mem. op.) ....................................................................................................42 Rea v. State, 297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.)..................................... 41, 42 Smith v. Abbott, 311 S.W.3d 62 (Tex. App.—Austin 2010, pet. denied) .......................................32 Speck v. First Evangelical Lutheran Church of Hous., 235 S.W.3d 811 (Tex. App.—Houston [1st Dist.] 2007, no pet.)........................58 ix State v. Epperson, 121 Tex. 80, 42 S.W.2d 228 (1931) .....................................................................54 Strayhorn v. Lexington Ins. Co., 128 S.W.3d 772 (Tex. App.—Austin 2004), aff’d, 209 S.W.3d 83 (Tex. 2006) ................................................................. 36, 38 Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002) ............................................................... 22, 23, 25, 41 Tara Partners, Ltd. v. City of S. Hous., 282 S.W.3d 564 (Tex.App.---Houston [14th Dist.] 2009, pet. denied) ........ 28, 29 Tate v. King, No. 03-96-00532-CV, 1997 WL 217197, (Tex. App.—Austin May 1, 1997, no writ) (mem. op.) ....................................................................................................59 Tex. Dep’t. of Licensing & Regulation v. Roosters MGC, LLC, No. 03-09-00253-CV, 2010 WL 2354064 (Tex. App.—Austin June 10, 2010, no pet.) (mem. op.) ............................................................................................. 25, 31 Tex. Highway Comm’n v. Tex. Ass’n of Steel Imps., Inc., 372 S.W.2d 525 (Tex. 1963) ................................................................................54 Tex. Mun. Power Agency v. Pub. Util. Comm’n, 100 S.W.3d 510 (Tex. App.—Austin 2003, pet. denied) .....................................31 Tex. Mut. Ins. Co. v. Tex. Dep’t. of Ins., Div. of Workers’ Comp., 214 S.W.3d 613 (Tex. App.—Austin 2006, no pet.)................................. 2, 25, 26 Tex. Student Hous. Auth. v. Brazos Cnty. Appraisal Dist., No. 13-0593, 2015 WL 1870013 (Tex. Apr. 24, 2015) ................................ 24, 31 Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) ................................................................................23 Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278 (Tex. 1994)) ...............................................................................25 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ................................................................................55 x Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780 (Tex. 1978) ......................................................................... 24, 31 STATUTES AND RULES 22 TEX. ADMIN. CODE § 573.80(2) .......................................................................... ix 22 TEX. ADMIN. CODE § 573.10(a) ..........................................................................35 22 TEX. ADMIN. CODE § 573.72 ............................................................................... ix 22 TEX. ADMIN. CODE § 573.80(13) ........................................................................35 TEX. CONST. Art. V, § 8 ...........................................................................................22 TEX. GOV’T CODE § 2001.038........................................................................... 14, 43 TEX. GOV’T CODE §§ 24.007-.008 ...........................................................................22 TEX. HEALTH & SAFETY CODE § 483 .......................................................................15 TEX. HEALTH & SAFETY CODE § 821 .......................................................................15 TEX. HEALTH & SAFETY CODE § 822 .......................................................................15 TEX. HEALTH & SAFETY CODE § 823 .......................................................................15 TEX. HEALTH & SAFETY CODE § 826 .......................................................................15 TEX. HEALTH & SAFETY CODE § 828 .......................................................................15 TEX. OCC. CODE § 801.001(4) ...................................................................................9 TEX. OCC. CODE § 801.001-.557 ..............................................................................27 TEX. OCC. CODE § 801.004 ................................................................................ ix, 19 TEX. OCC. CODE § 801.004(1) ................................. xi, 28, 30, 30, 45, 46, 48, 50, 59 TEX. OCC. CODE § 801.151(b) .................................................................................27 xi TEX. OCC. CODE § 801.351 ......................................................................................11 TEX. R. CIV. P. 301 ...................................................................................................58 U.S. CONTROLLED SUBSTANCES ACT, 21 U.S.C. § 801, et seq. ...............................15 OTHER AUTHORITIES 38 TEX. REG. 5490, 5491 (2013) (to be codified as an amendment to 22 TEX. ADMIN CODE Rule § 573.80) ................................................................................11 CITY OF SAN ANTONIO, TEXAS, CODE OF ORDINANCES, ch. 5 ..................................15 WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY at 208 (1988)...........................48 xii STATEMENT OF THE CASE Nature of the Case: This is a challenge to the Texas Board of Veterinary Medical Examiners’s ultra vires prosecution of Dr. Ellen Jefferson, an animal-shelter veterinarian whose care and treatment of shelter animals falls squarely outside the agency’s regulatory authority as expressly defined by the Texas Legislature. Trial Court: The Honorable Gisela D. Triana, sitting in the 250th Judicial District Court of Travis County, Texas Trial Court Disposition: Pursuant to the agreement of the parties, the trial court held a combined plea-to-the-jurisdiction hearing and trial on the merits on August 4, 2014. 2.RR.7-226. Following the trial, the trial court issued a letter ruling, 1.CR.852- 54, followed by a judgment, 1.CR.855-57 (Ex. A). The trial court also issued findings of fact and conclusions of law. 2.CR.36-38 (Ex. B).1 The trial court’s judgment: • grants Defendants’ plea to the jurisdiction “in part and dismisses Dr. Jefferson’s claims under the Uniform Declaratory Judgment Act without prejudice” on the ground that “Dr. Jefferson must exhaust her administrative remedies,” 1.CR.855; • declares that Texas Administrative Code §§ 573.72 and 573.80(2) are “contrary to Section 801.004(1) of the Veterinary Practice Act and therefore invalid,” 1.CR.856-57; see also TEX. OCC. CODE § 801.004 (Ex. C); • issues unrequested declaratory relief apparently related to the TBVME’s authority to enforce “other laws,” 1.CR.856; 1 The trial court clerk issued two volumes of the Clerk’s Record but labeled both “Volume 1 of 1.” This brief will refer to the volume filed on December 17, 2014 as Volume 1, and the volume filed on January 13, 2015 as Volume 2. Citations to the Clerk’s Record herein will be in the form [Volume].CR.[Page]. Likewise, citations to the Reporter’s Record will be in the form [Volume].RR.[Page] or, if the citation is to a page of an exhibit, [Volume].RR.[Exhibit:Page]. xiii • remands the case “to the TBVME for further actions consistent with this order,” 1.CR.857; and • denies “[a]ll relief not expressly granted,” 1.CR.857. Defendants and Dr. Jefferson timely filed notices of appeal. 1.CR.866-67 (Defendants’ Notice); 1.CR.871-72 (Dr. Jefferson’s Notice). xiv STATEMENT REGARDING ORAL ARGUMENT Because those parts of the trial court’s judgment in favor of Defendants directly contravene binding precedent from this Court and the Texas Supreme Court, this Court may deem it unnecessary to hear oral argument before reversing the trial court’s error. Nonetheless, the Court may consider oral argument beneficial given the number of issues involved in this appeal and the unprecedented nature of the trial court’s jurisdictional holding. Accordingly, to the extent the Court deems oral argument beneficial, Dr. Jefferson respectfully requests the opportunity to participate. xv ISSUES PRESENTED 1. Did the trial court err by dismissing Dr. Jefferson’s Uniform Declaratory Judgment Act claims? a. Did the trial court err by dismissing Dr. Jefferson’s UDJA claims for failure to exhaust administrative remedies given that the Legislature did not confer upon the TBVME exclusive jurisdiction over the regulation of an animal’s care and treatment by its owner, owner’s employee, or designated caretaker? b. Even if the Legislature had conferred upon the TBVME exclusive jurisdiction over the regulation of an animal’s care and treatment by its owner, owner’s employee, or designated caretaker, does one of the many exceptions to the exhaustion-of-administrative-remedies doctrine apply? c. Are other offered grounds for dismissal also without merit? 2. Is Defendants’ prosecution of Dr. Jefferson ultra vires and unlawful given that (1) the Texas Legislature explicitly exempted from the TBVME’s authority the regulation of an animal’s treatment or care “in any manner” by its owner, the owner’s employee, or a designated caretaker, and (2) Dr. Jefferson’s treatment and care of San Antonio Pets Alive’s animals is—as a matter of law—treatment and care by the animal’s owner, the owner’s employee, or a designated caretaker? xvi 3. Did the trial court err by denying or dismissing Dr. Jefferson’s request for mandamus relief from Oria’s ultra vires prosecution of Dr. Jefferson for her care and treatment of San Antonio Pets Alive’s animals? 4. Did the trial court err by issuing unrequested, ambiguous, and legally incorrect declaratory relief regarding the TBVME’s authority to enforce “other laws” against Dr. Jefferson in the context of the “owner exemption”? xvii INTRODUCTION This is a case about a state agency’s failure to abide by the Legislature’s clear limitation on its authority and the ultra vires prosecution of a nationally renowned veterinarian who has dedicated her life to fundamentally altering the direction of animal sheltering in America so as to save—rather than kill—the vast majority of impounded dogs and cats. Mindful of the values Texans place on private-property rights, the Texas Legislature has for decades expressly prohibited the Texas Board of Veterinary Medical Examiners—a state agency—from regulating the treatment or care of animals “in any manner” by the animals’ owners, owners’ employees, or designated caretakers pursuant to the so-called “owner exemption” to the Veterinary Licensing Act. Because it is undisputed that the animals cared for by Dr. Jefferson at issue in this case are owned by the non- profit animal shelter San Antonio Pets Alive (“SAPA”), and that Dr. Jefferson is the lead veterinarian and principal executive officer of SAPA, the agency’s attempt to prosecute Dr. Jefferson contravenes Texas law and is per se ultra vires. Even though the trial court agreed that the TBVME has no jurisdiction over animal-shelter veterinarians whose conduct falls under the “owner exemption,” the agency successfully convinced the trial court that—contrary to black-letter Texas law—the court itself had no jurisdiction to stop the agency’s unlawful acts. That holding is as wrong as the agency’s distorted view of the law: when a state agency 1 has no jurisdiction to regulate a policy arena, it necessarily does not have exclusive jurisdiction to first decide disputes within that arena. In other words, when the Legislature says “no,” it means “no”—regardless of how badly a state agency wants to creep far beyond the limits of its statutory authority. See Tex. Mut. Ins. Co. v. Tex. Dep’t. of Ins., Div. of Workers’ Comp., 214 S.W.3d 613, 620 (Tex. App.—Austin 2006, not pet.) (“The question of whether an agency has . . . jurisdiction is resolved by determining legislative intent—not agency intent.” (emphasis original)). The TBVME’s insistent failure to abide by the limits of its authority in this case is particularly odd in light of its public acknowledgment of its lack of authority in this very context just three short years ago. In 2012— contemporaneously with Dr. Jefferson’s animal-shelter work at issue—the TBVME issued public guidance to animal-shelter veterinarians stating that the Veterinary Licensing Act’s “owner exemption” prohibits the TBVME from regulating an animal shelter’s treatment and care of animals once the animal shelters become the owners of the animals in their custody. Specifically, in its 2012 “Board Notes” publication, in a section authored by its Executive Director and Defendant Nicole Oria, the TBVME declared: After the [“stray hold”] time period for holding the animal has elapsed, usually three days and set by local ordinance, then the shelter may claim the animal is abandoned and the shelter is the owner. Under Texas law, [the shelter] or a caretaker designated by the [shelter] can perform acts of veterinary medicine on the animal . . . 2 because the [shelters] and caretakers are exempt from the Veterinary Licensing Act. 3.RR.PX18:EJ000638 (emphasis added) (Ex. D). The TBVME was right in 2012: an animal-shelter veterinarian’s treatment of animals owned by the shelter is “exempt from the Veterinary Licensing Act” under the “owner exemption.” Id. Accordingly, Dr. Jefferson’s treatment of animals owned by San Antonio Pets Alive is “exempt from the Veterinary Licensing Act”—regardless of how badly the TBVME now wishes to prosecute her. See id. Based on the uncontroverted facts, the plain language of the Veterinary Licensing Act, and settled Texas law, Dr. Jefferson therefore respectfully requests that this Court reverse those parts of the judgment rendered in favor of Defendants (including the trial court’s dismissal of Dr. Jefferson’s claims for “failure to exhaust”), render judgment that the agency’s illegal prosecution of Dr. Jefferson is ultra vires and unlawful, and issue declaratory, injunctive, and mandamus relief prohibiting the agency’s further prosecution of Dr. Jefferson with respect to her treatment and care of animals owned by San Antonio Pets Alive. 3 STATEMENT OF FACTS The Texas Board of Veterinary Medical Examiners and its Executive Director Nicole Oria forced this lawsuit by embarking on an illegal campaign to prosecute Austin community leader Dr. Ellen Jefferson for doing precisely what the agency said was fully legal at the time of Dr. Jefferson’s work in question: providing treatment and care to impounded animals owned by animal shelters without regard to the inapplicable constraints of the Veterinary Licensing Act. The germane facts and circumstances leading up to the agency’s unlawful prosecution of Dr. Jefferson’s “No Kill” sheltering efforts began years earlier, when Dr. Jefferson put aside her private-practice veterinary career in order to make it her life’s mission to save shelter pets. Dr. Jefferson Devotes Her Life to Helping Shelter Pets. Dr. Ellen Jefferson—the plaintiff in this case and the shelter veterinarian subject to the agency’s overreach—has been licensed to practice veterinary medicine in Texas since 1998. 2.RR.124. After beginning her practice in Texas, she founded a non-profit animal-welfare organization in Austin, Texas, called Emancipet, to provide free and low-cost spay-neuter services to pet owners in need. 2.RR.126-27.2 As a veterinarian, Dr. Jefferson has worked in the private- practice “fee for service” clinic context, for non-profits who deliver services to 2 See also http://emancipet.org/ (last visited May 21, 2015). 4 client-owners of pets, and also for both public and private animal shelters that do not serve client-owners of pets but rather provide care to unowned, abandoned, or lost shelter pets. 2.RR.126-29, 133-34, 137, 145. In addition to Emancipet and her current employment, for example, she has worked on behalf of animals at Austin’s municipal animal shelter (then known as Town Lake Animal Center), the Austin Humane Society, the Williamson County Humane Society, Kyle Paws, and San Antonio Animal Care Services. 2.RR.145. Dr. Jefferson Resets Her Sights: To Make Cities “No Kill” for Shelter Pets. In 2008, Dr. Jefferson became the executive director of Austin Pets Alive, 2.RR.124, an organization aimed at making Austin and Central Texas “No Kill” for shelter pets—meaning they would save all healthy and treatable impounded pets.3 Dr. Jefferson’s remarkable success in shelter lifesaving at Austin Pets Alive quickly became a national story, attracting the attention of the then-Director of San Antonio’s Office of Innovation and Reform—Joe Angelo—who had been tasked with finding a way to significantly reduce euthanasia at San Antonio’s municipal shelter. 2.RR.70. The performance of San Antonio’s municipal shelter, according to city officials, was up to that time “wholly inadequate.” 2.RR.69. The city shelter typically impounded about 30,000 animals per year, killing roughly 70 percent of 3 See also http://www.austinpetsalive.org/ (last visited May 21, 2015). 5 them. 2.RR.69. Angelo reasoned that in order to turn around San Antonio’s facility, he had to look for the best of the best, and he found that in Dr. Jefferson of Austin Pets Alive. 2.RR.70. In the words of Angelo, “[w]e looked around at some of the best practices in the country,” and Dr. Jefferson’s work “was leagues above everybody else’s.” 2.RR.70. San Antonio Seeks Out Dr. Jefferson’s “Pets Alive” Sheltering Model, and San Antonio Pets Alive Is Formed. Impressed by Dr. Jefferson’s lifesaving success in Austin, the City of San Antonio began an effort to recruit her to do the same in the Alamo City. As part of their due diligence, Angelo and San Antonio’s Deputy City Manager toured Austin Pets Alive—including the organization’s medical facilities. 2.RR.71-72. Angelo observed that, like the City’s own provision of medical services, Austin Pets Alive operated akin to a “MASH” unit where pets were given the care they needed, but not on the level of a “Boston General” style private facility. 2.RR.72-75. And that is what the City of San Antonio expected; city representatives understood that to save lives where intake is unlimited but resources are not, veterinary care must be streamlined for efficacy and efficiency. 2.RR.75-76. As Executive Director of San Antonio Animal Care Services Kathy Davis testified: It’s a huge and overwhelming job to handle [the number of pets we handle] on a daily basis, and we have to triage them. We have to do a MASH-style service in order to be able to handle the huge volume that comes in on a daily basis. 6 2.RR.81. Davis later added that the City simply does not have the resources to pay for private-practice-level medical care at the shelter. 2.RR.92. Satisfied with their due diligence on Dr. Jefferson and Austin Pets Alive, Angelo and the City of San Antonio sought and reached an agreement with Dr. Jefferson to bring the Austin Pets Alive model to San Antonio through a new non- profit organization called San Antonio Pets Alive (“SAPA”). 2.RR.77. Dr. Jefferson formed SAPA, and became its Executive Director in 2012. 2.RR.124, 151; 3.RR.PX5. The mission of San Antonio Pets Alive is undisputed: “[T]o save every adoptable dog and cat in danger of being killed at the City of San Antonio shelter.” 2.RR.141; 3.RR.PX44; see also 2.RR.256 (“Q. So what is the purpose, then, when you take ownership of these dogs – when SAPA takes ownership of these dogs? A. To save their lives and get them adopted.”). San Antonio Pets Alive has been exceedingly successful in saving lives. SAPA saves about 8,000 dogs and cats per year from San Antonio Animal Services. 2.RR.161. They do so with approximately 50 employees and between 700 and 800 volunteers. 2.RR.162. They have physical shelters that house around 300 animals, with several hundred more living in temporary foster homes until they are able to be adopted. 2.RR.157. The City of San Antonio agreed to sign up SAPA as a shelter placement partner and, consistent with the terms of its agreements with other shelter 7 placement partners, agreed to pay SAPA a flat fee for each animal rescued from the shelter. 2.RR.77; 3.RR.PX5. Pleased with the partnership, the City of San Antonio has repeatedly extended its agreement with San Antonio Pets Alive to save even more impounded pets. 3.RR.PX5,6,7. To maximize the lifesaving intent of the partnership, San Antonio Pets Alive only rescues pets from the shelter that the shelter has slated for euthanasia. 2.RR.85. In other words, Dr. Jefferson’s organization is literally the last chance a shelter pet has in San Antonio to make it out alive. San Antonio’s ultimate goal is to become, like Austin, a “No Kill” community. 2.RR.70-71. Dr. Jefferson’s role in San Antonio Pets Alive is all-encompassing. At all times relevant to the events in this case, Dr. Jefferson was SAPA’s Executive Director, 2.RR.124, lead veterinarian, 2.RR.171, and “highest ranking corporate officer, vested with overall responsibility for SAPA’s day-to-day affairs, including the care provided to its animals,” 3.RR.PX43:EJ001539. She also serves on its Board of Directors. Id. Both Dr. Jefferson and the Texas Board of Veterinary Medical Examiners Understood at the Time of Her Challenged Conduct That the Agency Has No Jurisdiction Over Veterinary Care Provided by Shelters to Animals the Shelters Own. Critical to the determination of this appeal is the understanding of both Dr. Jefferson and the TBVME that it is and has always been perfectly lawful for an animal shelter that owns the pets in its custody to provide treatment and care for 8 those pets in any manner without the need to follow the various inapplicable requirements of the Veterinary Licensing Act or the rules promulgated thereunder; the agency simply has no authority or jurisdiction to regulate such care. Again, as Oria and the TBVME wrote in its Fall 2012 Board Notes publication: After the [“stray hold”] time period for holding the animal has elapsed, usually three days and set by local ordinance, then the shelter may claim the animal is abandoned and the shelter is the owner. Under Texas law, [the shelter] or a caretaker designated by the [shelter] can perform acts of veterinary medicine on the animal . . . without concern for establishing a veterinarian-client-patient relationship, because the [shelters] and caretakers are exempt from the Veterinary Licensing Act. 3.RR.PX18:EJ000638 (emphasis added). The evidence was uncontroverted that it was “common knowledge” in the animal-sheltering industry that—consistent with the TBVME’s publication—animal shelters who own the animals in their care are exempt from the Veterinary Licensing Act by what is often referred to as the “owner exemption.” 2.RR.144-45.4 Dr. Jefferson too shared the TBVME’s understanding that with respect to an animal owned by an animal shelter, the shelter and its caretakers “are exempt from the Veterinary Licensing Act.” 3.RR.PX18:EJ000638; 2.RR.144-45. In fact, Dr. Jefferson testified that she was reassured by the agency’s Fall 2012 Board Notes because they confirmed her prior 4 See TEX. OCC. CODE § 801.001(4) (excepting from the Veterinary Licensing Act and TBVME’s jurisdiction “the treatment or care of an animal in any manner by the owner of the animal, an employee of the owner, or a designated caretaker of the animal, unless the ownership, employment, or designation is established with the intent to violate this chapter.”). 9 understanding and belief that San Antonio Pets Alive operated in full and complete compliance with Texas law. 2.RR.148, 188. At Some Point, the Agency Decides That Stopping “No Kill” Shelters Is More Important Than Abiding by the Limits of Its Statutory Authority. Whenever someone revolutionizes an industry, those stuck in the past lash out; the animal-sheltering world is no exception. While nearly all national animal- welfare organizations (including Best Friends Animal Society, 5 Alley Cat Allies,6 the No Kill Advocacy Center,7 and the ASPCA8) now support efforts to dramatically decrease animal-shelter killing through what has been called the “No Kill” movement, there are holdouts who remain mired in the traditional save-a- few-and-kill-the-rest method of animal control. The controversial group PETA, for example, favors traditional kill shelters over those aiming to save the lives of all healthy and treatable pets. 9 At some point, the TBVME decided to take PETA’s pro-killing side of the animal-sheltering world, derisively writing in the May 24, 2013 issue of the Texas Register that while the “No Kill” movement may be a “favorite cause” of animal lovers, the real purpose of an animal shelter is to kill animals—not save them. See 38 TEX. REG. 5490, 5491 (2013) (to be codified 5 See http://bestfriends.org/Our-No-Kill-Mission/ (last visited July 5, 2015). 6 See http://www.alleycat.org/catfatalities (last visited July 5, 2015). 7 See http://www.nokilladvocacycenter.org/ (last visited July 5, 2015). 8 See http://www.aspca.org/about-us/aspca-policy-and-position-statements/no-kill-community- coalitions (last visited July 5, 2015). 9 See http://www.washingtonpost.com/local/virginia-politics/animal-bill-could-put-peta-out-of- the-shelter-business/2015/02/23/2f4f05b6-bb6a-11e4-b274-e5209a3bc9a9_story.html (last visited June 17, 2015). 10 as an amendment to 22 TEX. ADMIN CODE Rule § 573.80) (“While no-kill animal shelters have become a favorite cause of animal rights proponents in recent years, the primary public purpose of animal shelters is to remove sick, injured, unwanted and abandoned animals from contact with the public . . . .”). So when the agency saw an opening to prosecute Dr. Jefferson—the highest-profile “No Kill” advocate in Texas and arguably the entire nation—it jumped at the chance. The TBVME Begins to Prosecute Dr. Jefferson for Her Treatment and Care of Animals Owned by San Antonio Pets Alive. On December 27, 2013, the agency commenced its war on “No Kill” sheltering, choosing to begin prosecution efforts against the movement’s leader for alleged conduct that the agency had proclaimed perfectly legal just one year earlier. Compare 1.CR.53-63 (alleging SAPA’s veterinary care of its own animals violated the Veterinary Licensing Act because it was provided without first establishing a veterinarian-client-patient relationship), with 3.RR.PX18:EJ000638 (acknowledging that animal shelters need not establish a veterinarian-client-patient relationship with animals they own because they are exempt from the Veterinary Licensing Act).10 In the agency’s “Allegations” they presented to Dr. Jefferson (and attached to their plea to the jurisdiction in this case), the TBVME conceded 10 The “veterinarian-client-patient-relationship” requirement is found in § 801.351 of the Texas Occupations Code. It requires that, prior to treating an animal, a veterinarian establish a relationship with both the animal and the animal’s owner—a requirement that is effectively impossible to meet were it to apply in the animal-shelter context because the animals either do not have owners, their owners are unknown or unreachable, or the shelter itself has already become the owner. See TEX. OCC. CODE § 801.351. 11 that (1) Dr. Jefferson is “employed by San Antonio Pets Alive!, an animal rescue organization,” and (2) the complaint made against Dr. Jefferson related to a dog “owned by San Antonio Pets Alive in San Antonio, Texas.” 1.CR.117. Because those concessions squarely placed Dr. Jefferson’s treatment of the dog outside of the agency’s jurisdiction pursuant to the “owner exemption” of the Veterinary Licensing Act as recognized in the agency’s own publication, Dr. Jefferson protested the agency’s prosecution of her as illegal and without authority. 2.RR.190. Defendant Executive Director Nicole Oria’s response? “Go [complain] to the Legislature.” 2.RR.190. Dr. Jefferson Is Forced to Sue. Because Oria and her agency refused to follow the rule of law that they had publicly acknowledged just a year earlier, Dr. Jefferson was forced to file suit to stop their illegal prosecution. 1.CR.4-21. In her petition, Dr. Jefferson explained the success that both Austin Pets Alive and San Antonio Pets Alive have had in saving the lives of shelter pets, helping to bring Austin to an over 90% live-release rate and San Antonio to an almost 80% live-release rate. 1.CR.10. She also explained that by explicitly exempting medical care by animals’ owners from the Veterinary Licensing Act, the Legislature prohibited the agency from regulating such care by shelter-owners like San Antonio Pets Alive. 1.CR.14-17. Accordingly, Dr. Jefferson asked the trial court to declare Oria and the agency’s 12 conduct unlawful and ultra vires, and also sought temporary and permanent injunctive relief to stop the agency’s ultra vires prosecution. Oria and the TBVME responded by filing a plea to the jurisdiction asserting that (1) the agency has authority to investigate Dr. Jefferson and bring an action against her in the State Office of Administrative Hearings (SOAH); and (2) Dr. Jefferson’s claims are not ripe because—according to the TBVME—while it has already concluded that Dr. Jefferson violated the Veterinary Licensing Act and the agency’s rules promulgated thereunder, 1.CR.47, 133-35, Dr. Jefferson had not yet been injured by the agency because no final decision had been reached by the agency after a SOAH proceeding. 1.CR.69-71. The TBVME attached to its plea to the jurisdiction its “Allegations” against Dr. Jefferson, in which the agency conceded that (1) Dr. Jefferson was employed by San Antonio Pets Alive, and (2) San Antonio Pets Alive owned the animal whose care was questioned. 1.CR.117. Before the trial court considered the agency’s plea to the jurisdiction, the TBVME began the process of bringing even more disciplinary proceedings against Dr. Jefferson. See 1.CR.204-07. These too involved animals owned by San Antonio Pets Alive, 2.RR.41, and were instigated by the out-of-state no-kill opponent PETA, 1.CR.204-07. Tellingly, the City of San Antonio Police Department timely investigated the allegations and concluded that they were wholly unfounded. 3.RR.PX62,65. But that did not deter the TBVME. 13 As a result, Dr. Jefferson amended her original petition to add additional claims including a request for declaratory relief under Texas Government Code § 2001.038. 1.CR.216. Dr. Jefferson explained that the agency’s various rules that attempted to overrule the Texas Legislature’s limit on the TBVME’s authority were illegal and invalid. 1.CR.216-22. Dr. Jefferson also sought mandamus relief to stop Oria’s illegal and ultra vires acts. 1.CR.228-29. The Trial Court Agrees That the TBVME Has No Jurisdiction to Regulate Shelter Veterinarians’ Treatment of Animals Owned by Shelters, But Holds That the Court Itself Has No Jurisdiction to Decide Dr. Jefferson’s UDJA Claims. By agreement of the parties, the trial court held a combined hearing on the agency’s jurisdictional plea and trial on the merits on August 4, 2014. The agency stipulated that San Antonio Pets Alive was the owner of the animals whose care it questioned. 2.RR.41-42. Dr. Jefferson called several witnesses, including herself, and the agency called none. 2.RR.68-200. Accordingly, the trial-court testimony and evidence was uncontroverted that: • San Antonio Pets Alive owned the animals in its care, 2.RR.41-42; • Dr. Jefferson’s care and treatment of the animals was fully consistent with the care anticipated by the City of San Antonio in reaching out to Dr. Jefferson and agreeing to contract terms with San Antonio Pets Alive, 2.RR.72-76, 89; • SAPA saves approximately 8,000 animals per year from the City’s municipal animal shelter, 2.RR.161; 14 • Every animal at issue would have been euthanized by the City of San Antonio but for Dr. Jefferson and San Antonio Pets Alive’s efforts to save them, 2.RR.85; • Myriad other governmental entities (local, state, and federal) have jurisdiction over Dr. Jefferson’s care of SAPA’s animals, including the City of San Antonio, which found the allegations against her to not be credible, 2.RR.134-39, 83, 85, 88;11 • Dr. Jefferson is both the Executive Director and lead veterinarian of San Antonio Pets Alive and is thus responsible for making corporate decisions for the non-profit and for the caretaking of the animals owned by SAPA, 2.RR.124; 3.RR.PX43:EJ0001539; and • The sole intent of Dr. Jefferson and the City of San Antonio in setting up San Antonio Pets Alive and transferring animals to SAPA from the City is to save animals’ lives, 2.RR.141; 3.RR.PX44; 2.RR.70. On September 5, 2014, the trial court issued a letter ruling invalidating contested agency rules that failed to recognize the “owner exemption,” but also holding that the court itself was powerless to stop the TBVME’s prosecution of Dr. Jefferson because she “must exhaust her administrative remedies . . . before the Court may review individual disputes” between Dr. Jefferson and the TBVME. 1.CR.852-53. Two months later, the court issued a final judgment largely in line 11 The various governmental agencies that have jurisdiction over animal shelters’ (like Dr. Jefferson and San Antonio Pets Alive’s) care of animals include the United States Drug Enforcement Agency, see U.S. CONTROLLED SUBSTANCES ACT, 21 U.S.C. § 801, et seq.; the Texas Department of Public Safety, see TEX. HEALTH & SAFETY CODE § 483; the Texas Board of Health, see TEX. HEALTH & SAFETY CODE § 823; the Texas Department of State Health Services, see generally, TEX. HEALTH & SAFETY CODE §§ 822, 823, 826, §828; the county or municipal Animal Advisory Commission, see TEX. HEALTH & SAFETY CODE § 823; the governmental entity (if any) from whom the shelter is saving animals, see, e.g., TEX. HEALTH & SAFETY CODE §§ 821, 823; CITY OF SAN ANTONIO, TEXAS, CODE OF ORDINANCES, ch. 5; and law-enforcement authorities that enforce animal-cruelty laws, see, e.g., CITY OF SAN ANTONIO, TEXAS, CODE OF ORDINANCES, ch. 5. 15 with the letter ruling. 1.CR.855-57. Both sides timely filed notices of appeal. 1.CR.866-87; 1.CR.871-72. Meanwhile, the Agency’s Ultra Vires Prosecution Continues. Because the trial court concluded that it had no jurisdiction to determine Dr. Jefferson’s Uniform Declaratory Judgment Act challenge to the TBVME’s authority to prosecute her (as opposed to its contested rules, two of which the court held invalid), the agency has continued its prosecution by pursuing its claims against Dr. Jefferson before a SOAH judge. After a hearing, the administrative law judge determined that Dr. Jefferson’s treatment and care of San Antonio Pets Alive’s animals is, in fact, exempt from the TBVME’s jurisdiction under the facts of the case due to the “owner exemption” because: (1) SAPA owned the animals at issue; (2) SAPA provided its care and treatment of its animals through Dr. Jefferson, its Executive Director and lead veterinarian (and Dr. Jefferson was a designated caretaker of the animals); and (3) Dr. Jefferson did not intend to violate the Veterinary Licensing Act. See SOAH Order (Ex. E). However, the SOAH judge also concluded—based on language within the trial court’s pre-judgment letter ruling—that the TBVME has authority to continue prosecutorial efforts against Dr. Jefferson for alleged violations of laws other than the Veterinary Licensing Act. Id.; see also infra Part IV. As a result, the TBVME’s unlawful 16 prosecution against Dr. Jefferson continues, additional proceedings are scheduled, and Dr. Jefferson continues to be harmed. 12 The Legislature Is Not Happy with the TBVME’s Shelter Prosecutions. In hearings on legislation related to this case, legislators strongly and repeatedly criticized the agency’s ultra vires prosecution of animal-shelter veterinarians. Senator Charles Perry of Lubbock described Oria’s testimony as evidencing the agency’s “hypocrisy” and “inconsistency,” and criticized the TBVME’s position as being “so prescriptive that people are paralyzed to do their job.” See Texas Senate Committee on Agriculture, Water & Rural Affairs hearing on April 27, 2015. 13 Senator Perry also explained that the agency’s prosecution of shelter veterinarians fails to recognize the big picture: You have individual vets that are doing a yeoman’s job most of the time on a voluntary basis. We have individual shelters that honestly, if it wasn’t for them, there wouldn’t be an animal to discuss 99 percent of the time. . . . [You’re] kind of beating up an area that if it wasn’t for the area, there would be no opportunity, if you will, to salvage the animals that need to be salvaged. Id. Senator Kirk Watson of Austin levied additional criticism upon the TBVME’s conduct, stating that he found Oria’s testimony regarding her regulation and treatment of animal shelters “disturbing.” Id. He stated to Oria: 12 It is not known whether the TBVME intends to abide by the SOAH judge’s rulings in favor of Dr. Jefferson. 13 Viewable at http://tlcsenate.granicus.com/MediaPlayer.php?view_id=30&clip_id=9952 (last visited June 18, 2015). 17 I will tell you that your testimony, I think, highlights one of the problems that we have at this state agency. . . . Let me just say this, and I mean no disrespect. Your testimony and your approach causes me to believe you may be in the wrong job. And your inability to clearly define how better to address an issue where you have communities that want “No Kill” policies, but have limited resources, . . . and the way you’ve approached it and the way you’ve approached your testimony today causes me grave concern. . . . You know the concern and I’m not seeing any effort to try to help fix the concern other than to say ‘we want to stay out of court.’” Id. In another Senate hearing, Senator John Whitmire of Houston expressed his concern regarding the TBVME as well. See Senate Committee on Criminal Justice hearing on May 5, 2015.14 There, Senator Whitmire stated: I can’t begin to tell you through my years, and even recently, . . . I get reports in my district of the board being very dictatorial [and] not sensitive to shelters trying to provide services. . . . [T]hey don’t treat people, the public, the shelters, and even veterinarians with respect and sensitivities. . . . They need to realize they work for the public. Id. Speaking directly to Oria, Senator Whitmire added: “From talking to my colleagues, you’re building a pretty strong consensus in the Legislature that your board runs over people on a routine basis, and that’s just uncalled for. . . . They are here to serve, and not dictate.” Id.15 14 Viewable at http://tlcsenate.granicus.com/MediaPlayer.php?clip_id=10049 (last visited June 18, 2015). 15 While Oria lobbied the Legislature to pass a bill expressly excluding animal-shelter veterinarians from Veterinary Licensing Act’s list of exemptions, Dr. Jefferson encouraged the Legislature to confirm the owner exemption. No legislation related to the issue passed during the 2015 legislative session. 18 Undeterred by the legislators’ heated criticism, Oria and the TBVME’s ultra vires prosecution of Dr. Jefferson continues—necessitating this appeal. SUMMARY OF THE ARGUMENT At its core, this is a case about a state agency thumbing its nose at the Texas Legislature’s specific, clear, and unambiguous curtailment of its authority. The agency no doubt wishes the law were different, but as Texas law has stated for more than 100 years, the Texas Board of Veterinary Medical Examiners has no authority to regulate the treatment and care of an animal by its owner or owner’s designee. See TEX. OCC. CODE § 801.004. That means—as the TBVME itself recognized in 2012—that animal shelters like San Antonio Pets Alive may provide treatment and care to animals owned by the shelters without regard to the agency’s inapplicable rules and regulations because shelters are “exempt” from the TBVME’s jurisdiction as a matter of law. Because Dr. Jefferson’s treatment and care of animals owned by her non-profit animal-rescue shelter San Antonio Pets Alive fall squarely within that exemption to the TBVME’s authority, the agency’s attempt to prosecute her for that treatment is per se ultra vires. After a combined plea hearing and trial on the merits, the trial court agreed that the TBVME has no authority over animal-shelter veterinarians falling under the “owner exemption,” but held—contrary to black-letter Texas law—that the court itself had no jurisdiction to stop the agency from prosecuting Dr. Jefferson 19 because Dr. Jefferson had not first exhausted administrative remedies. In other words, the trial court held that Dr. Jefferson must first fully submit herself to the TBVME’s ultra vires prosecution of her before she can contest the authority of the TBVME to prosecute her in the first place. That holding is insulting to the rule of law (and, especially, the inherent limitations of governmental authority) and demonstrably incorrect under the Texas Constitution and settled Texas law, which make perfectly clear that Texas district courts have inherent constitutional jurisdiction over disputes in Texas unless the pleadings or evidence affirmatively negate the trial court’s jurisdiction—which they did not here. Moreover, it is hornbook Texas law that the exhaustion-of-administrative-remedies doctrine does not apply to prevent Texas trial courts from adjudicating claims alleging that a government agency has acted outside the limits of its statutory authority. For each of the reasons presented in this brief, this Court should reverse the trial court’s erroneous dismissal of Dr. Jefferson’s Uniform Declaratory Judgment Act claims and hold, pursuant to Texas law and the uncontroverted evidence, that Defendants’ prosecution of Dr. Jefferson for her treatment and care of animals owned by San Antonio Pets Alive is ultra vires and unlawful. 20 ARGUMENT I. THE TRIAL COURT ERRED BY DISMISSING DR. JEFFERSON’S UNIFORM DECLARATORY JUDGMENT ACT CLAIMS FOR FAILURE TO FIRST EXHAUST ADMINISTRATIVE REMEDIES BECAUSE—AS A MATTER OF LAW—THE DOCTRINE DOES NOT APPLY. Dr. Jefferson’s first issue on appeal is the trial court’s erroneous dismissal of her Uniform Declaratory Judgment Act claims, which asked the court to declare— among other things—that Oria and the TBVME have no authority to discipline Dr. Jefferson for her treatment and care of animals owned by San Antonio Pets Alive pursuant to the “owner exemption” of the Veterinary Licensing Act. 1.CR.213-16. Because the trial court did not reach the merits of Dr. Jefferson’s UDJA claims— but instead dismissed them for failure to exhaust administrative remedies—the threshold issue as to her UDJA claims is this: did the trial court correctly determine that Dr. Jefferson’s failure to first exhaust administrative remedies divested the trial court of its inherent authority to determine her challenge to the TBVME’s ultra vires acts? Based on the plain language of the statute at issue and settled Texas law, the answer to that question is “no.” Accordingly, the dismissal of Dr. Jefferson’s UDJA claims should be reversed and her claims reinstated and reached. 21 A. The Baseline Rules: Texas District Courts Have Subject-Matter Jurisdiction Unless It Is Expressly Taken Away, and Texas Governmental Agencies Have No Jurisdiction Unless It Is Expressly Given. The “analytical starting point” for determining an agency’s objection to a trial court’s jurisdiction “is article V, section 8 of the Texas Constitution,” which “provides that a district court’s jurisdiction ‘consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.’” City of Round Rock v. Whiteaker, 241 S.W.3d 609, 640 (Tex. App.—Austin 2007, pet. denied) (quoting TEX. CONST. art. V, § 8). In addition, “[t]he Legislature has provided by statute that district courts possess ‘the jurisdiction provided by Article V, Section 8, of the Texas Constitution,’ and ‘may hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity.’” Id. (quoting TEX. GOV’T CODE §§ 24.007-.008); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). Accordingly, Texas district courts “are courts of general jurisdiction,” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002), and are therefore presumed to “have subject matter jurisdiction” over a dispute “unless a contrary showing is made.” Whiteaker, 241 S.W.3d at 640 22 (quoting Subaru of Am., 84 S.W.3d at 220); see also Dubai Petroleum, 12 S.W.3d at 75. On the other hand, “‘there is no presumption that administrative agencies are authorized to resolve disputes. Rather, they may exercise only those powers the law, in clear and express statutory language, confers upon them,’” and “‘[c]ourts will not imply additional authority to agencies, nor may agencies create for themselves any excess powers.’” Whiteaker, 241 S.W.3d at 641 (quoting Subaru of Am., 84 S.W.3d at 220) (emphasis added); see also Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006). In short, the baseline rule is clear: the trial court has jurisdiction, and the TBVME has no authority to divest the trial court of jurisdiction over any particular dispute, unless the Legislature has expressed its clear and plain intent to the contrary. B. Dr. Jefferson Was Not Required to Exhaust Administrative Remedies Because the Legislature Did Not Confer Upon the TBVME Exclusive Jurisdiction Over the Treatment of Animals by Their Owners; And Regardless, Several Exceptions to the Exhaustion Doctrine Apply Here. The trial court’s judgment “grants Defendants’ plea to the Jurisdiction in part and dismisses Dr. Jefferson’s claims under the Uniform Declaratory Judgment Act without prejudice” because “Dr. Jefferson must exhaust her administrative remedies. . . .” 1.CR.855. Failure-to-exhaust was not a ground raised in Defendants’ jurisdictional plea. 1.CR.67-71. Regardless, there are many reasons 23 that the trial court’s dismissal of Dr. Jefferson’s UDJA claims for “failure to exhaust” is erroneous. Each reason will be briefed in turn, but the fundamental problem with the trial court’s judgment is the simple and inexorable tenet of Texas jurisprudence that “when”—as here—“an agency is exercising authority beyond its statutorily conferred powers,” “the doctrine of exhaustion of administrative remedies is not applicable.” Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978) (emphasis added); City of Sherman v. Pub. Util. Comm’n of Tex., 643 S.W.2d 681, 683-84 (Tex. 1983) (same); see also Tex. Student Hous. Auth. v. Brazos Cnty. Appraisal Dist., No. 13-0593, 2015 WL 1870013, at *6 (Tex. Apr. 24, 2015) (“If an injured party with standing brings and proves an action seeking to confine [a government agency] within its statutory constraints . . . courts may intervene to provide an appropriate remedy, such as an injunction to prevent [the agency] from continuing to exceed its limited statutory authority.”). The trial court’s dismissal is in error. 1. The Legislature did not confer upon the TBVME exclusive jurisdiction over the care and treatment of animals by their owners, owners’ employees, or designated caretakers. Exhaustion of administrative remedies is not a legal requirement that exists “in the air,” but rather becomes pertinent if (and only if) the Texas Legislature has assigned a governmental agency “exclusive” jurisdiction over the specific subject matter at issue in a particular dispute. See Cash Am. Int’l Inc. v. Bennett, 35 24 S.W.3d 12, 15 (Tex. 2000); Tex. Dep’t. of Licensing & Regulation v. Roosters MGC, LLC, No. 03-09-00253-CV, 2010 WL 2354064, at *6 (Tex. App.—Austin June 10, 2010, no pet.) (mem. op.); Tex. Mut. Ins. Co. v. Tex. Dep’t. of Ins., Div. of Workers’ Comp., 214 S.W.3d 613, 616 (Tex. App.—Austin 2006, no pet.). As this Court has explained, only when the Legislature has granted a state agency “the sole authority to make the initial determination in a dispute” does the agency have “exclusive jurisdiction,” which in turn operates to require a party to first exhaust administrative remedies before filing suit. Tex. Mutual, 214 S.W.3d at 616 (emphasis original); see also Cash Am., 35 S.W.3d at 15. Accordingly, the first issue in any failure-to-exhaust analysis is whether the agency has been granted exclusive jurisdiction over a specific dispute. Tex. Mutual, 214 S.W.3d at 616. Whether a statute confers upon a state agency exclusive jurisdiction to first determine a dispute is a question of statutory construction, the purpose of which is “to give effect to the Legislature’s intent.” Cash Am., 35 S.W.3d at 16 (citing Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994)). A statute may confer exclusive jurisdiction expressly (by stating that the agency has “exclusive, original jurisdiction” rather than “general and original power and jurisdiction”), Subaru of Am., 84 S.W.3d at 223, or implicitly (by enacting “a pervasive regulatory scheme indicat[ing] that [the Legislature] intended for the regulatory process to be the exclusive means of remedying the problem”), id. at 25 221; see also Whiteaker, 241 S.W.3d at 641. Either way, the ultimate test for whether the Legislature has given an agency exclusive jurisdiction is whether the language of the statute in question “indicate[s] clearly or plainly that the Legislature intended” to divest Texas district courts of subject-matter jurisdiction over a particular dispute in favor of the state agency’s initial determination. Cash Am., 35 S.W.3d at 16. This decision is one for the Legislature—not the agency— and courts “cannot permit [an agency] to augment its statutorily-conferred jurisdiction merely because it asserts reasons of policy or practicality to do so.” Tex. Mutual, 214 S.W.3d at 621; see also BCY Water Supply Corp. v. Residential Inv. Inc., 170 S.W.3d 596, 600 (Tex. App.—Tyler 2005, pet. denied) (“Courts will not divine by implication additional authority to agencies, nor may agencies create for themselves any excess powers.”). And, critically, the exclusive-jurisdiction inquiry is performed on a claim-by-claim basis, meaning that (1) even if an agency has exclusive jurisdiction generally over a subject matter, it may not have exclusive jurisdiction over a specific claim within that general subject matter, and (2) even if an agency has exclusive jurisdiction over one claim, it may not have exclusive jurisdiction over related claims. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 206-07 (Tex. 2002) (holding Motor Vehicle Board granted exclusive jurisdiction in statute, but not over plaintiff’s declaratory judgment claims); Whiteaker, 241 S.W.3d at 641-42 (civil service commissions have exclusive 26 jurisdiction to determine some claims but not others); Forest Oil Corp. v. El Rucio Land & Cattle Co., 446 S.W.3d 58, 70-71 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (holding Railroad Commission has authority over “pervasive regulatory scheme” regarding “environmental issues incident to oil and gas production in Texas,” but no statute “clearly or plainly indicate[s]” that the Legislature intended the Commission to have exclusive jurisdiction over landowners’ environmental contamination claims). Thus, the first step in analyzing the trial court’s dismissal of Dr. Jefferson’s UDJA claims for failure to exhaust administrative remedies is to decide whether the Legislature conferred upon the TBVME exclusive jurisdiction over the treatment or care of an animal by its owner, owner’s employee, or designated caretaker—i.e., the “owner exemption.” It did not. First, no case can be made that the Legislature expressly conferred exclusive jurisdiction upon the TBVME; the words “exclusive jurisdiction” or any variation thereof are nowhere to be found in the Veterinary Licensing Act. See TEX. OCC. CODE § 801.001-.557. And while the TBVME is undoubtedly tasked with adopting a regulatory scheme of “rules of professional conduct appropriate to establish and maintain a high standard of integrity, skills, and practice in the veterinary medicine profession” generally, id. § 801.151(b), nothing in the Act or any other law places upon the agency any authority to regulate the provision of such care by an animal’s owner, owner’s employee, or designated caretaker. To 27 the contrary, the Legislature expressly excluded from the TBVME’s authority such care. Id. § 801.004(1). It should go without saying that when the Legislature has exempted from an agency’s authority the regulation of a specific arena within a broader regulatory scheme, the Legislature has necessarily not conferred upon that agency exclusive authority over the exempted arena. Unsurprisingly, that is what Texas courts have uniformly held when facing the same question. In Tara Partners, Ltd. v. City of S. Hous., for example, the court was tasked with determining whether the Texas Water Code conferred upon the Texas Commission on Environmental Quality exclusive jurisdiction to first adjudicate a rate dispute between a municipally owned water utility and ratepayers living within the corporate limits of the municipality. 282 S.W.3d 564, 571 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). In a plea to the jurisdiction, the city asserted that the trial court had no jurisdiction over the claims because the TCEQ had exclusive jurisdiction pursuant to the Water Code, which at the time conferred upon the agency pervasive general authority to adopt a regulatory scheme over water utilities. Id. But as the court of appeals explained, the appropriate legal inquiry was not whether the Legislature conferred exclusive subject-matter jurisdiction upon the agency generally, but rather “whether the [L]egislature intended the [prescribed] regulatory process as the exclusive means of remedying” the specific controversy—there, “a rate dispute between a 28 municipally owned water and sewer utility and ratepayers living within the corporate limits of that municipality.” Id. The court answered that question “no” because despite the Legislature’s provision of a pervasive water-utility regulation scheme, the Legislature expressly exempted from the agency’s authority the “power or jurisdiction to regulate or supervise the rates or service of a utility owned and operated by a municipality. . . .” Id. at 573. In other words, where a statute confers upon an agency exclusive jurisdiction over a statutory scheme generally but excepts from that authority a more specific policy area, the statute does not confer exclusive jurisdiction over the excepted policy area. The same conclusion was reached by the Texas Supreme Court in City of Sherman v. Pub. Util. Comm’n of Tex., 643 S.W.2d 681 (Tex. 1983): when the Public Utility Commission was granted jurisdiction to regulate public utilities generally but not “municipally-owned utilities,” the Commission had no exclusive jurisdiction to determine a dispute related to a city-owned utility’s water usage. Id. at 685. Because “the legislative intent to exclude municipally-owned utilities from the Act’s jurisdictional provisions is clear,” id. at 684, the Court reasoned, the exhaustion-of-administrative-remedies doctrine did not apply, id. at 683. And the same is true here. Although the Legislature unquestionably granted the TBVME authority generally to regulate the provision of veterinary care, it expressly excluded from the agency’s jurisdiction the treatment or care of an 29 animal “in any manner” by the animal’s owner, owner’s employee, or designated caretaker. TEX. OCC. CODE § 801.004(1). As in City of Sherman, therefore, the legislative intent to exclude the more specific policy area from the agency’s general regulation of a broader policy area “is clear.” See 643 S.W.2d at 684. And because the Legislature excluded from the TBVME’s authority regulation of the treatment or care “in any manner” under the “owner exemption,” it necessarily follows that the Legislature did not confer “exclusive jurisdiction” upon the TBVME to determine disputes involving the “owner exemption.” See id. at 683- 84. Accordingly, the exhaustion-of-administrative-remedies doctrine is inapplicable, and the trial court’s judgment to the contrary is in error. See id. 2. Even if the Legislature had granted the TBVME exclusive jurisdiction over conduct covered by the “owner exemption,” several exceptions to the exhaustion-of- remedies doctrine apply to retain the trial court’s jurisdiction over Dr. Jefferson’s UDJA claims. A judicial determination that a dispute lies within an agency’s exclusive jurisdiction does not end the exhaustion-of-administrative-remedies inquiry; rather, a court must next decide whether one of the many “exceptions to the doctrine” applies. City of Sherman, 643 S.W.2d at 683. Here, several of those exceptions apply to defeat the TBMVE’s jurisdictional plea. 30 a. The exhaustion doctrine does not divest a district court of jurisdiction to adjudicate claims alleging that a governmental agency is acting outside its authority. It is black-letter law that the exhaustion-of-administrative-remedies doctrine is inapplicable to claims alleging that a state agency is acting outside of its statutorily conferred authority. As the Texas Supreme Court recently affirmed, “If an injured party with standing brings and proves an action seeking to confine [a government agency] within its statutory constraints . . . courts may intervene to provide an appropriate remedy, such as an injunction to prevent [the agency] from continuing to exceed its limited statutory authority.” Tex. Student Hous. Auth., 2015 WL 1870013, at *6; see also City of Sherman, 643 S.W.2d at 683 (explaining that the exhaustion doctrine does not apply to claims that an agency acted outside its authority); Westheimer Indep. Sch. Dist., 567 S.W.2d at 785 (same). This Court has repeatedly confirmed this settled jurisdictional rule. See Roosters MGC, 2010 WL 2354064, at *6 (noting that the exhaustion-of-administrative-remedies doctrine does not apply to claims seeking “a declaration regarding [an agency’s] general authority under a statute”); Tex. Mun. Power Agency v. Pub. Util. Comm’n, 100 S.W.3d 510, 520 (Tex. App.—Austin 2003) (“The narrow appellate procedure provided by the APA to attack a particular [agency] order, on any of the available grounds, does not displace the district court’s ability to determine the scope of an agency’s authority through a properly brought UDJA action. . . .”); Larry Koch, 31 Inc. v. Tex. Natural Res. Conservation Comm’n, 52 S.W.3d 833, 839-40 (Tex. App.—Austin 2001, pet. denied). As this Court has emphasized: In all events, however, the exhaustion rule is not without exceptions. For example, judicial intervention is not barred by the rule when an administrative agency purports to act outside its statutory powers. In such a case, the purposes underlying the exhaustion rule are not applicable: judicial and administrative efficiency are not served, and agency policies and expertise are irrelevant, if the agency’s final action will be a nullity. Larry Koch, 52 S.W.3d at 839-40.16 Here, it is undisputable that Dr. Jefferson’s Uniform Declaratory Judgment Act claims allege that the TBVME and Oria have acted outside the scope of their authority by bringing disciplinary action against Dr. Jefferson for her care and treatment of animals owned by San Antonio Pets Alive. 1.CR.213-16. Furthermore, it is undisputable that Dr. Jefferson’s claims challenge the agency and Oria’s authority to bring any such claims against her or other SAPA employees and volunteers for their care and treatment of San Antonio Pets Alive’s animals— not just the specific allegations that the agency is presently advancing against Dr. 16 See also Smith v. Abbott, 311 S.W.3d 62, 80 (Tex. App.—Austin 2010, pet. denied) (acknowledging that exhaustion of administrative remedies is not a ground for dismissal of “claims [that] allege acts ultra vires of [a state actor’s] authority”); Mag-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 625 (Tex. App.—Austin 2005, pet. denied) (“An aggrieved party is excused from exhausting its administrative remedies if . . . an administrative agency purports to act outside its statutory powers.”); Friends of Canyon Lake, Inc. v. Guadalupe- Blanco River Auth., 96 S.W.3d 519, 527 (Tex. App.—Austin 2002, pet. denied) (listing exceptions to exhaustion doctrine); Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor & Assocs., 267 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2008, no. pet.) (“[C]ourts may intervene in administrative proceedings when an agency exercises authority beyond its statutorily conferred powers. . . . [F]or this exception to apply, the [plaintiff] was required to allege that the agency had acted wholly outside its jurisdiction. . . .”). 32 Jefferson. Id. Accordingly, Dr. Jefferson’s claims fall squarely under the ultra vires exception to the exhaustion-of-administrative-remedies doctrine, and the trial court’s holding to the contrary is patent error. b. The exhaustion doctrine does not divest a district court of jurisdiction if forcing a plaintiff to first exhaust administrative remedies would subject the plaintiff to irreparable harm. The exhaustion-of-administrative-remedies doctrine also does not apply when having to first submit to an administrative process would cause or permit harm to the plaintiff that the administrative process itself cannot remedy. Hous. Fed’n of Teachers, Local 2415 v. Hous. Indep. Sch. Dist., 730 S.W.2d 644, 646 (Tex. 1987). As the Texas Supreme Court has explained: Parties are not required to pursue the administrative process regardless of the price. If irreparable harm will be suffered and if the agency is unable to provide relief, the courts may properly exercise their jurisdiction in order to provide an adequate remedy. Id. at 646. In Hous. Fed’n of Teachers, the Supreme Court held that a group of teachers did not have to first exhaust their administrative remedies to challenge the school district’s lengthening of their workday because implementation of the new workday would “affect their child care arrangements, transportation arrangements, and second jobs.” Id. at 645-46. The Court reasoned that because the teachers would thereby suffer “immediate and irreparable harm” if the plan were implemented while they first pursued an administrative remedy, and because the 33 administrative process itself could not provide any remedy for that harm, the trial court was not barred by the exhaustion doctrine from adjudicating the dispute. Id. at 646. 17 In this case, the trial-court evidence was uncontroverted that the TBVME’s ultra vires conduct is causing, has caused, and will cause irreparable harm to Dr. Jefferson and San Antonio Pets Alive that the administrative process cannot remedy. In fact, the harm to Dr. Jefferson and San Antonio Pets Alive of having to delay resolution of her challenge to the TBVME’s ultra vires acts—until after the TBVME has completed its ultra vires acts against her—is more burdensome than that recognized as sufficient in Hous. Fed’n of Teachers. The uncontroverted evidence at trial indicated that it would be “impossible” for San Antonio Pets Alive to continue its highly successful lifesaving efforts under the TBVME’s rules and view of the law. 2.RR.162. For example, the non-profit organization would not be able to use volunteers “for any kind of medical handling or treatment, even medicated baths,” 2.RR.162, because the agency’s rules prohibit a veterinarian from delegating care to non-veterinarians unless—among other things—the non- 17 Both this Court and the Houston 14th Court of Appeals have likewise held that the exhaustion-of-administrative-remedies doctrine is not applicable when the plaintiff would incur irreparable harm by first pursuing administrative remedies. Mag-T, 161 S.W.3d at 625 (“An aggrieved party is excused from exhausting its administrative remedies if . . . the administrative remedies are inadequate and the exhaustion of administrative remedies would cause irreparable injury.”); City of Hous. v. Williams, 99 S.W.3d 709, 715 (Tex. App.—Houston [14th Dist.] 2003, no. pet.) (“[E]xceptions to the doctrine . . . allow immediate access to Texas courts when . . . the exhaustion of remedies will cause irreparable injury or administrative remedies are inadequate.”). 34 veterinarians are paid directly by a veterinarian (not by a governmental entity, animal shelter, or non-profit corporation). See 22 TEX. ADMIN. CODE § 573.10(a); id. § 573.80(13). Nor would SAPA be able to rely on its non-veterinarian employees to provide medical care under the agency’s rules. 2.RR.162; see supra. In addition, the veterinarians SAPA does employ would be in jeopardy of losing their licenses if those rules applied to animal shelters. 2.RR.163. This threat is not hypothetical but very real and is already impacting SAPA’s ability to save lives: following the agency’s ultra vires investigation, one of SAPA’s veterinarians resigned from the organization, and SAPA has been unable to attract other veterinarians to work on behalf of the shelter. 2.RR.163. In essence, San Antonio Pets Alive’s lifesaving operation would be shut down if the TBVME has its way. 2.RR.164. So too, likely, would the City of San Antonio’s “No Kill” efforts. 2.RR.164. An organization that aims to save all of the animals impounded at a large open-admission animal shelter simply cannot comply with the TBVME’s rules—which are directed towards private veterinary clinics, not animal shelters struggling every day to provide care and treatment for hundreds or thousands of animals. And, of course, the TBVME itself has no ability to remedy these substantial and dramatic harms if the agency is ultimately determined to be acting ultra vires after it completes its disciplinary process. No TBVME administrative remedy can undo or compensate Dr. Jefferson for the 35 damage its ultra vires acts are causing to Dr. Jefferson and SAPA. Thus, Dr. Jefferson and SAPA are caught in a “lose-lose” quagmire. Like the teachers in Hous. Fed’n. of Teachers, she is faced with either risking further and additional disciplinary actions for non-compliance, or facing substantial, direct, and immediate harm to her mission, her organization, and the animals she saves by complying with the agency’s rules. Because she is facing and has incurred irreparable harm, the exhaustion doctrine does not defeat the trial court’s jurisdiction over her claims. See Hous. Fed’n. of Teachers, 730 S.W.2d at 646. c. The exhaustion doctrine does not divest a district court of jurisdiction to determine legal questions. This Court has also repeatedly held that the exhaustion-of-administrative- remedies doctrine is inapplicable when the question presented is legal in nature and thus more appropriately addressed by the courts than by an administrative agency. See Mag-T, 161 S.W.3d at 625; Strayhorn v. Lexington Ins. Co., 128 S.W.3d 772, 780 (Tex. App.—Austin 2004), aff’d, 209 S.W.3d 83 (Tex. 2006); Friends of Canyon Lake, 96 S.W.3d at 527 (“[T]he requirement of exhaustion of administrative remedies generally has been held inapplicable to questions of law.”). As the Houston 1st Court of Appeals has written: [T]he administrative exhaustion requirement does not apply and, consequently, an aggrieved party may seek relief in the courts without overcoming that hurdle . . . if the issues presented involve a pure question of law, such as when the uncontroverted facts show that the board lacked authority to take the action that caused the harm. . . . 36 Hous. Indep. Sch. Dist. v. Rose, No. 01-13-00018-CV, 2013 WL 3354724, at *3 (Tex. App.—Houston [1st Dist.] July 2, 2013, no pet.) (mem. op.). In this case, “the uncontroverted facts show that the board lacked authority” to discipline Dr. Jefferson for her care and treatment of animals owned by San Antonio Pets Alive. See id. As is fully explained in Part II of this brief, the uncontroverted evidence demonstrates that (1) San Antonio Pets Alive owned the animals in question; (2) Dr. Jefferson’s care and treatment of SAPA’s animals constituted the treatment or care of animals by the animals’ owner, employee of the owner, or designated caretaker; and (3) San Antonio Pets Alive did not accept ownership of the animals and Dr. Jefferson did not set up her position with SAPA with the intent to violate the Veterinary Licensing Act. See supra Part II. To the contrary, Dr. Jefferson, the City of San Antonio, and San Antonio Pets Alive’s intent at all times was to save animals’ lives. Id. Accordingly, Dr. Jefferson’s treatment and care of SAPA’s animals falls squarely within the “owner exemption” to the Veterinary Licensing Act, and the TBVME thus has no authority over the matter. Id. And because these issues are determinable by review of the law and uncontroverted facts, the exhaustion doctrine does not apply. d. The exhaustion doctrine does not require a plaintiff to participate in an “exercise in futility.” Finally, the exhaustion-of-administrative-remedies doctrine does not divest a trial court of jurisdiction when pursuit of administrative remedies would be futile 37 under the circumstances. Strayhorn, 128 S.W.3d at 780-81; Hous. Indep. Sch. Dist., 2013 WL 3354724, at *4. For example, when the parties have been locked into adversarial positions and the agency itself is fully aware of the plaintiff’s legal position but simply holds an opposing view of the law, there is no point in forcing the plaintiff to go through an administrative process before challenging the agency’s view of the law. Strayhorn, 128 S.W.3d at 781. As this Court has said, doing so would be “an exercise in futility.” Id. Here, it is abundantly clear that the state agency is wholly aware of Dr. Jefferson’s legal position and simply holds a different and opposite view of the law under the uncontroverted facts of the case. Indeed, there are no facts that require further development; the issue is simply a question of which parties’ view of the law is right and which is wrong under the presented facts. Dr. Jefferson has repeatedly urged the agency and Oria to recognize that the TBVME has no authority under the facts of this case pursuant to the “owner exemption” to the Veterinary Licensing Act, and the agency has shown no interest in doing so. In fact, during the initial administrative proceedings in this case, the TBVME acknowledged that Dr. Jefferson was an employee of San Antonio Pets Alive and that SAPA was the owner of the animals in question, 1.CR.117, yet still refused to follow the “owner exemption.” When Dr. Jefferson protested in the hearing that the agency was not complying with the “owner exemption,” Oria told 38 her to “go [complain] to the Legislature.” 2.RR.140. In other words, Oria’s mind is made up and she has shown no desire to reassess her position (even despite grilling from the Legislature). What makes Oria’s “Go to the Legislature” response particularly ironic is that Oria herself went to the Legislature, made slanderous and false allegations regarding Dr. Jefferson in a public legislative committee hearing, and lobbied the Legislature in favor of a bill that would expressly alter the Veterinary Licensing Act so as to exclude animal-shelter veterinarians from the list of persons and conduct exempt from the TBVME’s jurisdiction. See Committee on Urban Affairs Committee on April 21, 2015.18 In other words, Oria lobbied the Legislature to change the law in order to give the TBVME authority to prosecute animal-shelter veterinarians such as Dr. Jefferson, yet in this proceeding continues to claim that the agency already has authority to prosecute animal-shelter veterinarians. If that does not demonstrate the complete and utter futility of Dr. Jefferson continuing to participate in an ultra vires administrative proceeding in which the TBVME and Oria are both prosecutor and ultimate arbiter, nothing does. Because Texas law does not require a person to jump through futile administrative hoops to stop a government entity’s ultra vires act, Dr. Jefferson need not first subject herself to the TBVME’s ultra vires prosecution of her before contesting the agency’s 18 Viewable at http://tlchouse.granicus.com/MediaPlayer.php?view_id=37&clip_id=10813 (last visited June 19, 2015). 39 authority to prosecute her in the first instance. For this and the many other reasons presented herein, the trial court’s stated ground for dismissing Dr. Jefferson’s UDJA claims—her alleged failure to exhaust administrative remedies—is plainly incorrect. C. The Trial Court’s Dismissal of Dr. Jefferson’s UDJA Claims Is Also Not Justified on the Unreached Grounds Presented in Defendants’ Plea to the Jurisdiction. The trial court erroneously dismissed Dr. Jefferson’s UDJA claims on the stated ground that Dr. Jefferson failed to exhaust administrative remedies. 1.CR.855; see supra Part I.A-B. Out of an abundance of caution, Dr. Jefferson will also briefly address the two unreached arguments advanced in the TBVME’s plea: (1) that the agency has statutory authority to bring an enforcement action; and (2) lack of ripeness. 1.CR.69-71. The TBVME’s first argument—that it has general authority to bring any enforcement action against a licensed veterinarian—is not a ground for dismissing Dr. Jefferson’s lawsuit, but rather is an argument on the merits of her claims. It is also incorrect: the Veterinary Licensing Act plainly excludes from the agency’s general authority any regulation of the treatment or care of an animal “in any manner” by its owner, employee of the owner, or designated caretaker. TEX. OCC. CODE § 801.004(1). Thus, the agency’s general authority is of no import to the resolution of this case (and it is in any event no ground for dismissal). 40 The agency’s second argument in its plea—that Dr. Jefferson’s UDJA claims are not “ripe” for judicial review, 1.CR.70-71—is also demonstrably wrong. To determine whether a dispute is ripe for judicial consideration, courts look to “(1) fitness of issues for judicial decision and (2) hardship to parties of withholding judicial review.” Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d 17, 26 (Tex. App.—Austin 2008, pet. dism’d) (citing Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001)). Ripeness is established when the plaintiff has demonstrated “that [it] would suffer hardship if judicial review is withheld until administrative proceedings have concluded.” Id. In turn, hardship is shown when participating in an administrative proceeding “requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 153 (1967), abrogated on other grounds in Califano v. Sanders, 430 U.S. 99 (1977)). Under this standard, Dr. Jefferson’s claims are ripe. First, as a threshold matter, even the case that the agency relies on to make its “ripeness” challenge—Rea v. State, 297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.)—acknowledges that ripeness is inherent when a state agency is “act[ing] in excess of its powers and jurisdiction.” Id. at 384 (citing Subaru Am., 84 S.W.3d at 220). That is because being subjected to a governmental entity’s ultra vires act is injurious in and of itself. Indeed, the Court in Rea specifically pointed out that 41 the litigant in that case “does not allege the Board . . . lacks authority to make an initial determination regarding the revocation of suspension of a . . . license.” Id. at 384-85. The opposite is true here; that is the very claim that Dr. Jefferson advances. 1.CR.213-16. Second, contrary to the agency’s assertions, the fact that the TBVME has not completed its unlawful and ultra vires disciplinary action against Dr. Jefferson does not mean that her claims are necessarily “unripe.” Rather, a claim is ripe when—as here—the agency has taken steps to impose requirements on a litigant or there is an “existing or continuing threat of liability or penalty.” R.R. Comm’n of Tex. v. CenterPoint Energy Res. Corp., No. 03-13-00533-CV, 2014 WL 4058727, at *3 (Tex. App.—Austin Aug. 14, 2014, no pet.) (mem. op.); see also Mitz, 278 S.W.3d at 26; Abbott Labs., 387 U.S. at 153. Moreover, Dr. Jefferson’s claims are “ripe” because following the agency’s rules and view of Texas law would uncontestedly “require[] an immediate and significant change in [her and San Antonio Pets Alive’s] conduct of their affairs with serious penalties attached to noncompliance.” Id. (quoting Mitz, 278 S.W.3d at 26; Abbott Labs., 387 U.S. at 153). The evidence was uncontroverted that complying with the agency’s rules and view of Texas law would effectively destroy San Antonio Pets Alive’s lifesaving efforts. See supra. SAPA would be unable to save the lives it saves through the heroic efforts of its non-veterinarian employees and volunteers. Id. 42 Indeed, according to the uncontroverted testimony, it would be impossible for SAPA to continue its current business practices without risking serious penalties for non-compliance with the agency’s rules. Id. The TBVME put on no evidence to the contrary. Accordingly, Dr. Jefferson’s claims are undoubtedly “ripe” for judicial review. 19 19 The trial court’s judgment expressly dismisses Dr. Jefferson’s UDJA claims for failure to exhaust administrative remedies. 1.CR.855. Likewise, the trial court’s Findings of Fact and Conclusions of Law state that the trial court declines to reach the merits of Dr. Jefferson’s claims (other than her rule challenges) pursuant to the doctrine of “exhaustion of administrative remedies.” 2.CR.36. Nonetheless, in what appears to either be a typographical error or misstatement, the trial court also stated in a conclusion of law that Dr. Jefferson’s UDJA claims should be dismissed because they are “redundant of the remedies [for Dr. Jefferson’s rule- challenge claims] in Section 2001.038.” 2.CR.38. To the extent this conclusion is deemed operative, it too is plainly incorrect and constitutes additional grounds for reversal of the trial court’s judgment. Dr. Jefferson’s UDJA claims broadly attacked the TBVME’s actions as “in excess of its authorizations under the [Veterinary Licensing] Act” because they “interfere with or impair Dr. Jefferson’s legal rights and privileges.” 1.CR.213. Among other things, Dr. Jefferson’s UDJA claims asked for declarations that Dr. Jefferson’s (along with SAPA’s foster parents’ and volunteers’) care and treatment of SAPA’s animals falls under the Act’s “owner exemption,” and that the agency’s and Oria’s actions against Dr. Jefferson exceed their statutory authority. 1.CR.213-16. On the other hand, Dr. Jefferson’s rules challenges under Texas Government Code § 2001.038 are limited to the challenges allowed by that Code—i.e., challenges to “[t]he validity or applicability of” agency rules. 1.CR.216 (quoting TEX. GOV’T CODE § 2001.038(a)). Specifically, Dr. Jefferson challenged the validity and applicability of various TBVME rules under the facts at issue and asked that they be invalidated. 1.CR.216-23. Thus, her UDJA claims are not redundant with her rule challenges. Moreover, even if they were, that would not be a ground for dismissing her UDJA claims. There is no authority in Texas for the proposition that a claim’s redundancy is grounds for lack of jurisdiction, and such a holding would violate the constitutional and legal principle that Texas courts begin with inherent subject- matter jurisdiction unless the Legislature has provided otherwise. See supra. Accordingly, any operative conclusion that Dr. Jefferson’s UDJA claims (which attacked the TBVME’s statutory authority) are subject to dismissal because they are “redundant” with her rule challenges (which attacked the TBVME’s rules) is patently erroneous and adds additional reversible error into the record. 43 II. THE TRIAL COURT SHOULD HAVE DECLARED—AND THIS COURT SHOULD DECLARE—THAT THE BOARD’S PROSECUTION OF DR. JEFFERSON FOR HER TREATMENT AND CARE OF ANIMALS OWNED BY SAN ANTONIO PETS ALIVE IS ULTRA VIRES AND UNLAWFUL. Given that the trial court had jurisdiction to determine Dr. Jefferson’s UDJA claims, see supra Part I, the trial court should have reached the merits of those claims based on the uncontroverted evidence and testimony presented by Dr. Jefferson at the combined plea hearing and trial on the merits. While Dr. Jefferson sought a number of declarations, her claims boil down to one central verity: pursuant to the “owner exemption” to the Veterinary Licensing Act, the TBVME has no authority over Dr. Jefferson’s care and treatment of the animals owned by San Antonio Pets Alive. Based on the plain language of the “owner exemption” and the uncontroverted evidence presented at trial, this Court should hold that the TBVME’s proceedings against Dr. Jefferson are ultra vires and unlawful. At worst, the Court should remand the case to the trial court for consideration of the merits.20 The heart of this case is the “owner exemption” to the Veterinary Licensing Act, which explicitly excludes from the TBVME’s authority—and thereby 20 The trial court declined to determine the facts necessary to apply the “owner exemption” and thus neither expressly nor impliedly found such facts for or against either party. See 1.CR.855- 57; 2.CR.36-38. Nor is there legally sufficient evidence to support fact findings against Dr. Jefferson that would preclude application of the “owner exemption,” and the facts are uncontroverted and were demonstrated in her favor as a matter of law. See Part II; see Dow Chem. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Because there is no evidence creating a fact issue that would prevent summary judgment in Dr. Jefferson’s favor as to the application of the “owner exemption,” this Court should reach the exemption’s application and render judgment that the exemption applies and that the TBVME’s prosecution of Dr. Jefferson is ultra vires. 44 prohibits the agency from regulating—the “treatment or care of an animal in any manner by the owner of the animal, an employee of the owner, or a designated caretaker of the animal, unless the ownership, employment, or designation is established with the intent to violate [the Act].” TEX. OCC. CODE § 801.004(1). In this case, the TBVME stipulated that San Antonio Pets Alive was the owner of the animals in the shelter’s care, 2.RR.41-42, leaving just two merits questions to be resolved: (1) whether Dr. Jefferson’s provision of medical care to SAPA’s animals constituted “the treatment or care of an animal in any manner by the owner of the animal, an employee of the owner, or a designated caretaker of the animal; and (2) whether San Antonio Pets Alive’s ownership of its animals, or Dr. Jefferson’s role with the non-profit, was “established with the intent to violate” the Act. Those questions were answered at trial. A. Dr. Jefferson’s Care and Treatment of San Antonio Pets Alive’s Animals Was “By the Owner of the Animal, an Employee of the Owner, or a Designated Caretaker of the Animal.” The first merits issue to resolve is whether Dr. Jefferson’s care and treatment of San Antonio Pets Alive’s animals was “by the owner of the animal, an employee of the owner, or a designated caretaker of the animal.” TEX. OCC. CODE § 801.004(1) (emphasis added). The Legislature’s use of the word “or” in the provision creates a disjunctive list of categories, any of which can be demonstrated to meet the exclusion. See E. Tex. Salt Water Disposal Co., Inc. v. Werline, 307 45 S.W.3d 267, 271 (Tex. 2010). As a matter of law and fact, Dr. Jefferson met the exemption’s requirement. First, Dr. Jefferson’s actions were the actions of the owner of the animals— San Antonio Pets Alive. It is elementary law that as legal fictions, corporations cannot physically act on their own behalf but instead “must act through human agents.” In re Vesta Ins. Grp., Inc., 192 S.W.3d 759, 762 (Tex. 2006) (citing Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex. 1995)); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997) (“Corporations can, of course, ‘act only through agents of some character.’”) (quoting Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 402 (1934)). As a result, “[a]s a general rule, the actions of a corporate agent on behalf of the corporation are deemed the corporation’s acts.” Holloway, 898 S.W.2d at 795 (emphasis added). Just as, for example, a corporation’s in-house attorney’s work is an act of the corporation itself, Dr. Jefferson’s in-house veterinary work is an act of San Antonio Pets Alive. See Hexter Title & Abstract Co., Inc. v. Grievance Comm., Fifth Cong. Dist., State Bar of Tex., 142 Tex. 506, 179 S.W.2d 946, 953-54 (Tex. 1944) (“His acts are the acts of the corporation. . . .”). Thus, Dr. Jefferson’s care and treatment of SAPA’s animals is “by the owner of the animal[s].” TEX. OCC. CODE § 801.004(1). Dr. Jefferson would meet even the strictest exception to Texas’s rule that the acts of corporate agents constitute the acts of the corporation: the exception for 46 punitive damages. See Hammerly Oaks, 958 S.W.2d at 391. In Hammerly Oaks, the Texas Supreme Court explained that for purposes of determining whether a corporation may be liable for punitive damages for the acts of a person, Texas law has a stricter rule that distinguishes between the acts of “the corporation itself” (for which punitives may be awarded) and “that of a mere servant or employee” (for which punitives may not be awarded). Id. (citing Fort Worth Elevators, 70 S.W.2d at 406). A person’s acts are those of “the corporation itself” if the person fits into any of “four classes of corporate agents: (a) Corporate officers; (b) those who have authority to employ, direct, and discharge servants of the master; (c) those engaged in the performance of nondelegable or absolute duties of the master; and (d) those to whom a master has confided the management of the whole or a department or division of his business.” Id. Here, the evidence is conclusive and uncontroverted that Dr. Jefferson fits into several of these categories. She is uncontestedly a corporate officer of SAPA: she is the Executive Director and a board member. 2.RR.124; 3.RR.PX43:EJ001539. She is also the “highest ranking corporate officer, vested with overall responsibility for SAPA’s day-to-day affairs, including the care provided to its animals.” 3.RR.PX43:EJ001539. Thus, she is charged with the “absolute duties of the master,” and “the management of the whole or a department or division of [the] business.” Hammerly Oaks, 958 S.W.2d at 391 (quoting Fort 47 Worth Elevators, 70 S.W.2d at 406). Accordingly, Dr. Jefferson’s provision of care and treatment of animals owned by San Antonio Pets Alive is—as a matter of law—“the treatment or care of an animal in any manner by the owner of the animal.” TEX. OCC. CODE § 801.004(1). Dr. Jefferson is also “a designated caretaker of the animal[s]” owned by San Antonio Pets Alive. Id. As the Executive Director and lead veterinarian of San Antonio Pets Alive, Dr. Jefferson rightfully had the ability to include herself as one of the “designated caretakers” for the shelter animals owned by and in the custody of San Antonio Pets Alive. The word “caretaker” means “one that takes care of” or “one that gives physical or emotional care and support.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY at 208 (1988). It cannot seriously be asserted that as the lead veterinarian who provided treatment and care for the SAPA animals at issue, Dr. Jefferson was somehow not a “designated caretaker” of the animals. For this reason too, she satisfies the “owner exemption.” And finally, Dr. Jefferson was an “employee of the [animals’] owner”—San Antonio Pets Alive. TEX. OCC. CODE § 801.004(1). Again, it is undisputed that Dr. Jefferson is the Executive Director and lead veterinarian of San Antonio Pets Alive, 2.RR.124, and is SAPA’s “highest ranking corporate officer, vested with overall responsibility for SAPA’s day-to-day affairs, including the care provided to its animals.” 3.RR.PX43:EJ001539. The Internal Revenue Service includes 48 corporate officers in its definition of “an employee of the corporation” unless she “does not perform any services or performs only minor services and . . . neither receives nor is entitled to receive, directly or indirectly, any remuneration.” 26 CFR 31.3121(d)-1. Although the TBVME in attachments to its plea to the jurisdiction (and at all times prior to this lawsuit being filed) conceded that Dr. Jefferson was an employee of SAPA, 1.CR.117, it nonetheless contested Dr. Jefferson’s employment status at trial by alleging that she failed to pay herself. But Dr. Jefferson demonstrated at trial that she did receive remuneration from San Antonio Pets Alive, albeit indirectly, from a transfer of monies from San Antonio Pets Alive to Austin Pets Alive to pay for her services. 2.RR.125 (“San Antonio Pets Alive paid $35,000 towards my salary.”). And regardless, even if she had not received remuneration from SAPA, that would only preclude her from meeting the IRS’s definition of an “employee” if she also did “not perform any services or perform[ed] only minor services” for San Antonio Pets Alive—and it is undisputed that she performed both all managerial and lead veterinary services for the organization. See supra. Thus, although Dr. Jefferson’s work need only qualify as one of the three categories of conduct falling under the “owner exemption,” she met all three requirements at trial. 21 21 In addition, after the treatment and care in question, the Board of Directors of San Antonio Pets Alive adopted and ratified Dr. Jefferson’s care and treatment of animals as the care and treatment of San Antonio Pets Alive itself, and ratified her caretaker designation. 2.RR.196-97; 3.RR.PX43; see Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998) (corporation may ratify agent’s actions as its own). 49 B. Dr. Jefferson Established San Antonio Pets Alive with the Intent to Save Animals’ Lives—Not to Violate a Law. The last merits inquiry regarding the application of the “owner exemption” is whether “the ownership, employment, or [caretaker] designation [was] established with the intent to violate” the Veterinary Licensing Act. TEX. OCC. CODE § 801.004(1). On this point too, the evidence was uncontroverted and conclusive: Dr. Jefferson and the City of San Antonio (from whom the animals were transferred to San Antonio Pets Alive) established SAPA’s ownership of the animal, and Dr. Jefferson established San Antonio Pets Alive (and her position with and duties thereunder), for the sole purpose of saving animals’ lives—not with an intent to violate the Veterinary Licensing Act. The concept for San Antonio Pets Alive did not even begin with Dr. Jefferson but rather the City of San Antonio, whose then-Director of the Office of Innovation and Reform, Joe Angelo, was tasked with developing a strategy to save more pets’ lives at San Antonio’s municipal shelter—which at the time was killing 70 percent of impounded animals and described by Angelo as “wholly inadequate.” 2.RR.69-70. Angelo conducted a national review of animal-shelter best practices and concluded that Dr. Jefferson’s work at Austin Pets Alive was “leagues above everybody else’s.” 2.RR.70. From there, the two ended up reaching an agreement for a new non-profit, San Antonio Pets Alive, to contract with the City of San Antonio to become a high-volume partner to rescue animals 50 from the City’s municipal shelter. 3.RR.PX5. The evidence was uncontroverted that at no point in the negotiations or discussions in setting up San Antonio Pets Alive or its contract with the City of San Antonio did the idea of violating the Veterinary Licensing Act ever cross Angelo’s mind. 2.RR.76. The only goal was to save animals’ lives and to “help San Antonio get to no-kill [status].” 2.RR.71. In addition, Dr. Jefferson’s uncontroverted testimony demonstrated that neither SAPA’s ownership of the animals nor the establishment of Dr. Jefferson’s role was in any way intended to violate the Act. Her intent in forming San Antonio Pets Alive was singular and simple: “to save every adoptable dog and cat in danger of being killed at the City of San Antonio shelter.” 2.RR.141. In no way did Dr. Jefferson intend to violate the Veterinary Licensing Act. To the contrary, Dr. Jefferson explained that it was her full understanding—and in fact, it was “common knowledge” among animal shelters—that once a shelter owns an animal, it is completely legal for the shelter to provide treatment and care to those owned animals without violating the Veterinary Licensing Act. 2.RR.144-50. Indeed, at the same time that San Antonio Pets Alive was taking ownership of the animals in question, the TBVME itself was issuing public guidance stating that animal shelters do not violate the Veterinary Licensing Act by providing veterinary care to animals they own without regard to the Act’s requirements. Again, in the TBVME’s 2012 “Board Notes” publication, the agency wrote: 51 After the [“stray hold”] time period for holding the animal has elapsed, usually three days and set by local ordinance, then the shelter may claim the animal is abandoned and the shelter is the owner. Under Texas law, [the shelter] or a caretaker designated by the [shelter] can perform acts of veterinary medicine on the animal . . . without concern for establishing a veterinarian-client-patient relationship, because the [shelters] and caretakers are exempt from the Veterinary Licensing Act. 3.RR.PX18:EJ000638 (emphasis added). This is no small point: the TBVME in this litigation is actually taking the position that Dr. Jefferson intended to violate the law by following the TBVME’s own publicly disseminated legal guidance to shelters issued contemporaneously with San Antonio Pets Alive taking ownership of the animals at issue. Oria and her agency in this regard are not only inconsistent, hypocritical, and illogical, but their argument is nearly frivolous. It simply cannot be that a person subjectively intends to violate a law by acting with the understanding that the person’s conduct is in full and complete compliance with the law as publicly proclaimed by the very governmental agency charged with enforcing the law. The evidence is uncontroverted that the City of San Antonio and Dr. Jefferson did not intend to violate the Veterinary Licensing Act when they transferred ownership of the animals from the City to San Antonio Pets Alive, and Dr. Jefferson did not intend to violate the Act when she set up and took own her positions in San Antonio Pets Alive. Both organizations’ and Dr. Jefferson’s sole purpose with regard to all of the acts in question was single-minded: to save lives. 52 III. THE TRIAL COURT ALSO ERRED BY DENYING DR. JEFFERSON’S REQUEST FOR MANDAMUS RELIEF. In addition to her UDJA claims (which were dismissed) and her rule challenges (two of which were granted), Dr. Jefferson brought a mandamus claim against Oria. 1.CR.228. As Dr. Jefferson explained to the trial court, Oria’s ultra vires prosecution of Dr. Jefferson violated the “owner exemption” to the Veterinary Licensing Act and thereby exceeded her authority as explicitly limited by the Texas Legislature. 1.CR.43-44, 388-89, 425-26; see also supra Part II. Defendants filed no plea to the jurisdiction contesting the trial court’s jurisdiction over Dr. Jefferson’s mandamus claim, and the trial court did not expressly address Dr. Jefferson’s mandamus claim in its judgment, but did deny “[a]ll relief not expressly granted” in the judgment. 1.CR.857. Thus, it appears that Dr. Jefferson’s mandamus claim was reached but denied on non-substantive grounds (because the trial court expressly declined to determine whether the “owner exemption” applied to Dr. Jefferson’s work at San Antonio Pets Alive). That too was in error. 22 In trial-court briefing, Defendants asserted—without authority—that “[m]andamus is barred by sovereign immunity.” 1.RR.327. That is incorrect: 22 It is also plausible that the trial court impliedly dismissed Dr. Jefferson’s mandamus claim for failure to exhaust administrative remedies. In any event, the legal analysis is the same. The trial court had jurisdiction to reach Dr. Jefferson’s mandamus claims because the exhaustion doctrine does not apply to her claims. See supra Part I. And her mandamus claim is correct on the merits. See infra. 53 mandamus is available to compel a government official to perform a mandatory duty “without implicating sovereign immunity.” Whiteaker, 241 S.W.3d at 628 (citing State v. Epperson, 121 Tex. 80, 42 S.W.2d 228, 231 (1931) (suit to compel tax collector to give back wrongfully withheld funds can be brought without the consent of the state)). When—as here—“the complained-of acts of a state official are illegal or outside [her] authority, ‘an entity or person whose rights have been violated . . . may bring suit to remedy the violation or prevent its occurrence, and such a suit is not a suit against the State requiring legislative or statutory authorization.’” Id. at 628 (quoting Dir. of Dep’t of Agric. & Env’t v. Printing Indus. Ass’n of Tex., 600 S.W.2d 264, 265-66 (Tex. 1980) and citing Tex. Highway Comm’n v. Tex. Ass’n of Steel Imps., Inc., 372 S.W.2d 525, 530-31 (Tex. 1963); Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945); Epperson, 42 S.W.2d at 231).23 Here—as explained above—Oria’s continued prosecution of Dr. Jefferson was and is illegal and outside her statutory authority, and thus unprotected by sovereign immunity. Defendants alternatively argued that mandamus relief should be denied because “Dr. Jefferson has an adequate remedy at law, that being a suit for judicial review” after the agency completes its illegal prosecution of Dr. Jefferson. 23 See also Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 404 (Tex. 1997) (“A state official’s illegal or unauthorized actions are not acts of the State. Accordingly, an action to determine or protect a private party’s rights against a state official who has acted without legal or statutory authority is not a suit against the State that sovereign immunity bars.”). 54 1.CR.327; see also 1.CR.457-58. Specifically, citing Walker v. Packer, 827 S.W.2d 833, 841 (Tex. 1992), Defendants assert that the costs to Dr. Jefferson “of having to go through trial and the appellate process does not make the remedy at law inadequate.” 1.CR.458. But as this Court is well-aware, that is no longer the law in Texas. See In re McAllen Med. Ctr, Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig. proceeding) (rejecting “Walker’s categorical approach”). Instead, the Texas Supreme Court has held that mandamus is appropriate to intervene in “cases in which the very act of proceeding. . . —regardless of outcome—would defeat the substantive right involved.” Id. at 465. Moreover, the adequacy of an alternative remedy by appeal is determined by a “careful balance of jurisprudential considerations.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). “An appellate remedy is [only] ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.” Id. Here, there is no benefit to an ultra vires prosecution of Dr. Jefferson, and there are substantial harms to Dr. Jefferson—including unnecessary legal fees, disparagements to her and her organization’s character, and making it nearly impossible for SAPA to do the lifesaving work for which it was founded. Again, the evidence was uncontroverted that SAPA would effectively be shut down if it had to comply with the agency’s rules pending administrative resolution of the matter because SAPA would be unable to save animals’ lives using the volunteers 55 and non-veterinarian employees it currently uses to provide completely legal care and treatment for impounded animals. See supra Part I.B.2.b. These are all things for which the TBVME’s administrative process has no remedy at all; no rules or statute empower the administrative process to remedy the dramatic harm caused by the TBVME’s ultra vires acts. The harm cannot be undone. Finally, Dr. Jefferson’s mandamus request is valid on the merits. Mandamus relief is appropriate and available not only to compel a government official “to perform a ministerial act,” Janek v. Harlingen Family Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.—Austin 2014, no pet.), but also to protect a person “from illegal or unauthorized acts” of government “officials” sued “in their official capacities,” Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988, at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.). Dr. Jefferson has demonstrated both. As already explained, Oria has no authority to bring disciplinary proceedings against Dr. Jefferson for her care and treatment of animals owned by San Antonio Pets Alive because that care falls squarely within the “owner exemption” to the Veterinary Licensing Act. See supra Part II. By the Legislature’s clear directive (and as recognized by Oria in the 2012 Board Notes), Oria has no authority to discipline animal-shelter veterinarians for their care and treatment of animals owned by the shelter. Id. Oria’s actions are therefore “illegal” and “unauthorized.” See Hamilton, 2014 WL 7458988, at *5. In 56 addition, Oria has no authority or discretion to continue such ultra vires proceedings, and a mandatory duty to refrain from enforcement actions for which she and the TBVME have no statutory authority. She thus has no discretion to pursue actions against Dr. Jefferson, and her failure to perform the ministerial act of dropping proceedings in light of the application of the “owner exemption” merits and necessitates mandamus relief. See Janek, 451 S.W.3d at 101. IV. THE TRIAL COURT ERRED BY ISSUING UNREQUESTED, AMBIGUOUS, AND LEGALLY INCORRECT DECLARATIONS. The last part of the trial court’s judgment issues what appears to be a declaration of the TBVME’s authority to enforce “other laws” against animal- shelter veterinarians. It states: The Court, however, does find that the ownership exception does not allow a veterinarian to ignore other laws outside the Act that relate to his or her veterinary license, including all laws relating to the handling of prescription drugs (dangerous or controlled). Because it is the veterinary license, not the ownership of the animals, that allows a veterinarian to take certain actions, those actions may be overseen by TBVME to ensure compliance. Such investigations and administrative actions are not categorically banned by the ownership exemption and the Court will not prevent TBVME from exercising its administrative powers to investigate such complaints. In exercising its quasi-judicial authority in overseeing the administrative process, however, TBVME must do so in accordance with the boundaries of the Act, and with proper and due regard for the owner exemption, as mandated by the Texas Legislature. 1.CR.856. No such declaration was requested in the pleadings of either party, and candidly, it is not even clear what this particular passage of the judgment means. It 57 should be reversed and struck from the judgment in its entirety; alternatively, it should be modified to cure ambiguity. A judgment cannot be granted on a ground not asserted in a motion. G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011); Speck v. First Evangelical Lutheran Church of Hous., 235 S.W.3d 811, 819 (Tex. App.— Houston [1st Dist.] 2007, no pet.). Accordingly, the passage quoted above is erroneous on its face because no party requested such declaratory relief in any motion before the trial court. In addition, a judgment cannot be awarded on a claim not advanced in a party’s live pleadings, TEX. R. CIV. P. 301, and neither the TBVME’s nor Dr. Jefferson’s live pleadings requested a declaration regarding Dr. Jefferson’s compliance with “other laws” or the agency’s authority to investigate violations of such “other laws.” Alternatively, the passage should be modified to cure its ambiguity. “The entry of [a] judgment rendered is a formal act, and same should, at least, evidence with clarity and certainty the action taken by the court.” Gen. Exch. Ins. Corp. v. Appling, 144 S.W.2d 699, 701 (Tex. Civ. App.—El Paso 1940, no writ). Appellate courts have authority to modify ambiguous trial court judgments. Onoray Davis Truck Co. v. Ford Motor Credit Co., 690 S.W.2d 40, 42 (Tex. App.—Houston [14th Dist.] 1985, no writ). “A judgment is ambiguous if it is reasonably susceptible of more than one meaning.” Tate v. King, No. 03-96-00532-CV, 1997 58 WL 217197, at *1 (Tex. App.—Austin May 1, 1997, no writ) (mem. op.) (not designated for publication). In this case, the trial court’s extraneous declaration is not clear as to its meaning or impact on the parties. For example, does the passage declare that the TBVME has authority to prosecute animal-shelter veterinarians for violating “other laws” even under circumstances when the “owner exemption” applies? Or alternatively, that the TBVME has authority to investigate but not prosecute veterinarians for violations of other laws when the exemption applies? Or does it merely acknowledge that veterinarians must comply with “other laws” even though the TBVME has no authority to regulate the area? The passage does not “evidence with clarity and certainty the action taken by the court.” See Gen. Exchange, 144 S.W.2d at 701. Finally, to the extent the trial court’s extraneous declaration is read to hold that the TBVME has authority to prosecute Dr. Jefferson for violations of “other laws” in her treatment or care of animals owned by San Antonio Pets Alive, then the declaration is erroneous and should be reversed or modified. The agency’s enabling statute—the Veterinary Licensing Act—states that th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4069399. Public record. Not legal advice.