“Courts should be slow to put back that which the Legislature has rejected.”
How later courts described this case
- “Courts should be slow to put back that which the Legislature has rejected.”
- “courts should decline to infer a limitation in a statute that the Legislature has explicitly rejected”
- statutory provisions regarding patient confidentiality did not share the same purpose as provisions concerning the confidentiality of Chiropractic Board investigations and so could not be read in pari materia
- “An acupuncture needle in unskilled hands can cause serious damage.”
Written by the judges who cited it.
The opinion
ACCEPTED
03-15-00262-CV
6432956
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/10/2015 4:45:15 PM
JEFFREY D. KYLE
CLERK
No. 3-15-00262-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
In the Court of Appeals 8/10/2015 4:45:15 PM
Third District of Texas — Austin JEFFREY D. KYLE
Clerk
TEXAS ASSOCIATION OF ACUPUNCTURE
AND ORIENTAL MEDICINE,
Appellant,
v.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE
YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,
Appellees.
On Appeal from 201st District Court, Travis County, Texas
Cause No. D-1-GN-14-000355
BRIEF OF APPELLANT
TEXAS ASSOCIATION OF ACUPUNCTURE
AND ORIENTAL MEDICINE
Craig T. Enoch
Melissa A. Lorber
Shelby O’Brien
ENOCH KEVER PLLC
600 Congress Avenue, Suite 2800
Austin, Texas 78701
(512) 615-1200 / (512) 615-1198 fax
Attorneys for Appellant
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant (Plaintiff)
Texas Association of Acupuncture Trial and Appellant counsel:
and Oriental Medicine (“Association”) Craig T. Enoch
Melissa A. Lorber
Shelby O’Brien
ENOCH KEVER PLLC
600 Congress Avenue, Suite 2800
Austin, Texas 78701
Appellees (Defendants)
Texas Board of Chiropractic Trial and Appellate counsel:
Examiners and Yvette Yarbrough, Joe H. Thrash
Executive Director in her Official Assistant Attorney General
Capacity Administrative Law Division
(collectively “Chiropractic Board”) P.O. Box 12548
Austin, Texas 78711
i
STATEMENT OF THE CASE
Nature of This is an Administrative Procedures Act challenge to the validity of
the Case: Chiropractic Board rules that authorize chiropractors to engage in
the unlicensed practice of acupuncture. The Association sought to
invalidate these rules and alternatively sought a declaration under
the Uniform Declaratory Judgment Act that the statutory scheme
purportedly authorizing chiropractors to practice acupuncture is
unconstitutional. 1 At issue is whether (1) the rules are invalid
because acupuncture is outside the statutory scope of chiropractic,
and (2) in the alternative, the statutory scheme purportedly
authorizing chiropractors to practice acupuncture violates the
constitutional prohibitions against the Legislature preferring one
school of medicine and enacting legislation that contains more than
one subject.
Trial Court: The 201st District Court of Travis County, Texas; Cause No. D-1-
GN-14-000355.
Trial Court The trial court granted the Chiropractic Board’s motion for
Disposition: summary judgment and denied the Association’s competing
motion. 2
1
Clerk’s Record (“CR”) 3-19, 50-65, 716-32.
2
Appendix (“App.”) A.
ii
STATEMENT REGARDING ORAL ARGUMENT
This is an appeal of the trial court’s summary judgment in a suit in which the
Association challenged Chiropractic Board rules that authorize chiropractors to
engage in the unlicensed practice of acupuncture. This case requires the Court to
consider the validity of administrative rules, evaluate the constitutionality of
statutes, and determine the extent to which an agency can adopt rules authorizing
its licensees to engage in an occupational practice that is regulated by a different
regulatory board. The Association believes oral argument would be helpful in the
Court’s determination of these important issues of administrative law.
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
STATEMENT OF THE CASE ................................................................................. ii
STATEMENT REGARDING ORAL ARGUMENT ............................................. iii
INDEX OF AUTHORITIES................................................................................... vii
ISSUES PRESENTED........................................................................................... xiii
INTRODUCTION ..................................................................................................... 1
STATEMENT OF FACTS ........................................................................................ 4
A. Acupuncture and chiropractic are distinct practices regulated by
separate regulatory boards. .................................................................... 4
B. Despite the Chiropractic Chapter’s prohibition on needle use,
the Chiropractic Board has repeatedly asserted that
chiropractors may practice acupuncture and other procedures
requiring needle use............................................................................... 6
C. The Legislature amended the Acupuncture Chapter to define
acupuncture as the “nonincisive, nonsurgical” insertion of an
acupuncture needle. ............................................................................... 9
D. The Chiropractic Board adopted rules expressly authorizing
chiropractors to practice acupuncture without a license from the
Acupuncture Board.............................................................................. 12
E. This Court invalidated several Chiropractic Board rules,
including a rule authorizing chiropractors to use needles, but
the Chiropractic Board has refused to repeal its rules
authorizing needle use and the practice of acupuncture. .................... 13
SUMMARY OF ARGUMENT ............................................................................... 16
ARGUMENT ........................................................................................................... 18
I. Because acupuncture is outside the statutory scope of chiropractic, the
Chiropractic Board’s rules authorizing chiropractors to practice
acupuncture without a license from the Acupuncture Board are
invalid. ........................................................................................................... 18
iv
A. The Chiropractic Board only has authority to adopt rules
consistent with its statutory grant from the Legislature. ..................... 18
B. The Chiropractic Chapter unambiguously prohibits
chiropractors from performing procedures involving needles,
including acupuncture, because there is only one exception for
needles—those used for diagnostic blood draws. ............................... 20
1. The Chiropractic Chapter broadly instructs that ‘incisive”
encompasses incisions made by needles into the skin. ............. 20
2. Statutory construction principles confirm that the
Chiropractic Chapter prohibits all needle use except for
needles used for diagnostic blood draws. ................................. 21
3. Chiropractic is limited to specific techniques on discrete
parts of the body while acupuncture is a separate medical
profession in which practitioners treat the whole body. ........... 26
C. The Chiropractic Board’s interpretation of the Acupuncture
Chapter as indirectly expanding the scope of chiropractic is
entitled to no deference because it is unreasonable. ........................... 28
1. The Chiropractic Board’s interpretation contravenes the
regulatory purpose of occupational statutes and creates a
public health risk. ...................................................................... 28
2. It is unreasonable for the Chiropractic Board to rely on
another profession’s scope of practice statute to allow its
practitioners to practice a procedure that is prohibited
under the Chiropractic Chapter. ................................................ 34
a. The Chiropractic Board has impermissibly latched
onto one word (“nonincisive”) in the Acupuncture
Chapter to redefine its own scope of practice. ............... 34
b. Legislative history supports that the amendment to
the definition of acupuncture in the Acupuncture
Chapter did not grant the Chiropractic Board the
authority to regulate acupuncture. .................................. 37
v
c. The Court should decline to read the Acupuncture
Chapter and Chiropractic Chapter in pari materia
to create an exemption for acupuncture in the
Chiropractic Chapter....................................................... 42
D. The Chiropractic Board’s interpretation of the Acupuncture
Chapter is entitled to no deference because the Chiropractic
Board’s expertise is chiropractic, not acupuncture. ............................ 45
E. The Chiropractic Board’s rules are invalid because they
impermissibly allow chiropractors to practice acupuncture in
violation of the Acupuncture Chapter. ................................................ 46
F. The rules are invalid because they authorize chiropractors to
engage in the unauthorized practice of medicine. ............................... 47
II. Alternatively, the statutory scheme purportedly authorizing
chiropractors to practice acupuncture violates the Texas Constitution
because the Legislature may not favor one school of medicine over
another nor enact legislation containing more than one subject. .................. 49
A. The statutory scheme purportedly authorizing chiropractors to
practice acupuncture with significantly less education and
training in acupuncture than licensed acupuncturists violates
Texas Constitution, Article XVI, Section 31. ..................................... 50
B. The legislation that purportedly authorized chiropractors to
practice acupuncture violates the one-subject rule in Texas
Constitution, Article III, Section 35(a). .............................................. 52
III. The Chiropractic Board’s statute of limitations defense fails as a
matter of law. ................................................................................................. 54
PRAYER ..................................................................................................................59
CERTIFICATE OF COMPLIANCE ....................................................................... 61
CERTIFICATE OF SERVICE ................................................................................ 61
APPENDIX ..............................................................................................................62
vi
INDEX OF AUTHORITIES
CASES
Andrews v. Ballard
498 F. Supp. 1038 (S.D. Tex. 1980) .......................................................33, 47, 52
AT&T Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co.
186 S.W.3d 528 (Tex. 2006) .............................................................................. 37
Bd. of Water Eng’gs v. City of San Antonio
283 S.W.2d 722 (Tex. 1955) .............................................................................. 53
Beeman v. Livingston
__ S.W.3d __, 2015 WL 4072404 (Tex. June 26, 2015) .............................. 23-24
Brooks v. Texas Medical Board
No. 03-14-00239-CV, 2015 WL 3827327 (Tex. App.—Austin
June 18, 2015, no pet. h.) ........................................................................ 36, 48-49
C. Hayman Constr. Co. v. Am. Indem. Co.
471 S.W.2d 564 (Tex. 1971) .............................................................................. 52
CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities
263 S.W.3d 448 (Tex. App.—Austin 2008), aff’d 324 S.W.3d 95
(Tex. 2010) ..........................................................................................................23
City of Houston v. Clark
197 S.W.3d 314 (Tex. 2006) .............................................................................. 33
City of Rockwall v. Hughes
246 S.W.3d 621 (Tex. 2008) .............................................................................. 25
City of Round Rock v. Rodriguez
399 S.W.3d 130 (Tex. 2013) .............................................................................. 38
Commonwealth v. Schatzberg
371 A.2d 544 (Pa. Cmwlth. 1977) ................................................................33, 47
DLB Architects, P.C. v. Weaver
305 S.W.3d 407 (Tex. App.—Dallas 2010, pet. denied).................................... 43
Dvorken v. Lone Star Indus., Inc.
740 S.W.2d 565 (Tex. App.—Fort Worth 1987, no writ) .................................. 58
vii
Entergy Gulf States, Inc. v. Summers
282 S.W.3d 433 (Tex. 2009) .............................................................................. 37
Ex parte Halsted
182 S.W.2d 479 (Tex. Crim. App. 1944) .....................................................47, 51
Fazio v. Cypress/GR Houston I, L.P.
403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied).................................................................................................................23
Grasso v. Cannon Ball Motor Freight Lines
81 S.W.2d 482 (Tex. Com. App. 1935) .............................................................. 39
Greater Houston P’ship v. Paxton
__ S.W.3d __, 2015 WL 3978138 (Tex. June 26, 2015) ..............................24, 42
Heine v. Tex. Dept. of Pub. Safety
92 S.W.3d 642 (Tex. App.—Austin 2002, pet. denied) ............................... 55-56
Howlett v. Tarrant Cnty.
301 S.W.3d 840 (Tex. App.—Fort Worth 2009, pet. denied) ............................ 43
In re JMR
149 S.W.3d 239 (Tex. App.—Austin 2004, no pet.) .......................................... 43
In re Smith
333 S.W.3d 349 (Tex. 2011) .............................................................................. 19
Jessen Assocs., Inc. v. Bullock
531 S.W.2d 593 (Tex. 1976) .............................................................................. 52
Jose Carreras, M.D., P.A. v. Marroquin
339 S.W.3d 68 (Tex. 2011)................................................................................. 25
Kelley v. Raguckas
270 N.W.2d 665 (Mich. App. 1978) ................................................................... 47
Kuntz v. Khan
No. 03–10–00160–CV, 2011 WL 182882 (Tex. App.—Austin
2011, no pet.) ......................................................................................................23
LeCroy v. Hanlon
713 S.W.2d 335 (Tex. 1986) .............................................................................. 52
viii
Mid-Century Ins. Co. of Tex. v. Kidd
997 S.W.2d 265 (Tex. 1999) .............................................................................. 23
Nat’l Media Corp. v. City of Austin
No. 03-12-00188-CV, 2014 WL 4364815 (Tex. App.—Austin
Aug. 27, 2014, no pet.) ................................................................................. 43-44
Nw. Austin Municipal Util. Dist. No. 1 v. City of Austin
274 S.W.3d 820 (Tex. App.—Austin 2008, pet. denied) ............................. 58-59
People v. Roos
514 N.E.2d 993 (Ill. 1987) .................................................................................. 47
Physician Assistants Bus. Alliance of Tex., LLC v. Tex. Med. Bd.
No. 03-12-00735-CV, 2015 WL 681010 (Tex. App.—Austin Feb.
13, 2015, no pet.) .................................................................................... 19-20, 23
Pruett v. Harris Cnty. Bail Bond Bd.
249 S.W.3d 447 (Tex. 2008) .............................................................................. 19
Pub. Util. Comm’n of Tex. v. City of Pub. Serv. Bd. of San Antonio
53 S.W.3d 310 (Tex. 2001)................................................................................. 18
R.R. Comm’n of Tex. v. Lone Star Gas Co.
844 S.W.2d 679 (Tex. 1992) .............................................................................. 18
R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future and Clean Water
336 S.W.3d 619 (Tex. 2011) .............................................................................. 19
Ritchie v. Rupe
443 S.W.3d 856 (Tex. 2014) .............................................................................. 24
Robinson v. Crown Cork & Seal Co., Inc.
335 S.W.3d 126 (Tex. 2010) .............................................................................. 37
Rodriguez v. Tex. Workforce Comm’n
986 S.W.2d 781 (Tex. App.—Corpus Christi 1999, pet. denied) ...................... 42
Rogers v. Tex. Bd. of Architectural Exam’rs
390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.) ....................................20, 45
Schlichting v. Tex. State Bd. of Medical Exam.
310 S.W.2d 557 (Tex. 1958) .............................................................................. 50
ix
Sommermeyer v. State
713 S.W.2d 183 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d)................ 53
State v. $1,760.00 in U.S. Currency
406 S.W.3d 177 (Tex. 2013) .............................................................................. 24
State v. Rich
339 N.E.2d 630 (Ohio 1975) .............................................................................. 47
State v. Won
528 P.2d 594 (Ore. App. 1974)........................................................................... 47
State Agencies v. R.R. Comm’n of Tex.
421 S.W.3d 690 (Tex. App.—Austin 2014, no pet.) .......................................... 34
State Office of Pub. Util. Council v. Pub. Util. Comm’n of Tex.
131 S.W.3d 314 (Tex. App.—Austin 2004, pet. denied) .............................23, 57
Teem v. State
183 S.W. 1144 (Tex. Crim. App. 1916) ............................................................. 47
Tex. Ass’n of Psychological Assoc. v. Tex. State Bd. for Exam’rs of
Psychologists
439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) ......................................... 55
Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n
375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied)
..........................................5-9, 13-14, 19, 21-22, 25, 28, 38, 44-45, 49, 54-55, 57
Tex. Dep’t of Transp. v. Sefzik
355 S.W.3d 618 (Tex. 2011) (per curiam) ......................................................... 50
Tex Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Exam’rs
254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) .................19, 23, 48, 52
Tex. State Bd. of Barber Exam’rs v. Beaumont Barber College, Inc.
454 S.W.2d 729 (Tex. 1970) ........................................................................28, 56
Tex. State Bd. of Chiropractic Examiners v. Abbott
391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.) .............................. 25, 42-44
Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n
458 S.W.3d 552, 554 (Tex. App.—Austin 2014, pet. filed) .............................. 55
x
Tex. State Bd. of Public Accountancy v. Fulcher
515 S.W.2d 950 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d
n.r.e.) .............................................................................................................36, 56
Tex. Water Comm’n v. Brushy Creek Mun. Util. Dist.
917 S.W.2d 19 (Tex. 1996)................................................................................. 40
TGN-NOPEC Geophysical Co. v. Combs
340 S.W.3d 432 (Tex. 2011) .............................................................................. 23
Thompson v. Tex. State Bd. of Med. Exam’rs
570 S.W.2d 123 (Tex. App.—Tyler 1978, writ refused n.r.e.) .......................... 46
Transp. Ins. Co. v. Maksyn
580 S.W.2d 334 (Tex. 1979) .............................................................................. 40
West Orange-Cove Consol. Indep. Sch. Dist. v. Alanis
107 S.W.3d 558 (Tex. 2003) ........................................................................41, 54
Wilson v. State Bd. of Naturopathic Examiners
298 S.W.2d 946 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.) .................... 50
RULES, STATUTES & OTHER PROVISIONS
22 TEX. ADMIN. CODE § 75.17 ................................................................ 12-15, 57-59
22 TEX. ADMIN. CODE § 75.21 ................................................................ 13-15, 57-59
22 TEX. ADMIN. CODE § 78.13 .......................................................... 14-16, 22, 57-59
22 TEX. ADMIN. CODE § 78.14 .............................................. 14-16, 27, 30-32, 57-59
22 TEX. ADMIN. CODE § 78.15 ...........................................................................14, 58
22 TEX. ADMIN. CODE § 183.2 ........................................................................... 29-30
22 TEX. ADMIN. CODE § 183.4 ........................................................................... 29-30
22 TEX. ADMIN. CODE § 183.20 ............................................................................... 30
22 TEX. ADMIN. CODE § 184.4 ................................................................................. 29
TEX. CIV. PRAC. & REM. CODE § 16.051................................................17, 54, 56, 58
TEX. CIV. PRAC. & REM. CODE § 37.004.................................................................. 50
TEX. CIV. PRAC. & REM. CODE § 37.006.................................................................. 50
xi
TEX. CONST. art. III, § 35(a) ...................................................................17, 40, 49, 52
TEX. CONST. art. XVI, § 31 ..........................................................................17, 49, 50
TEX GOV’T CODE § 311.026..................................................................................... 42
TEX. OCC. CODE § 151.002 ............................................................................6, 48, 51
TEX. OCC. CODE § 151.052 ................................................................. 6, 47-48, 51-52
TEX. OCC. CODE § 201.002 ............................................... 5, 15, 20-21, 24, 26-27, 46
TEX. OCC. CODE § 201.152 ........................................................................................ 5
TEX. OCC. CODE § 201.1525 ................................................................................8, 12
TEX. OCC. CODE § 201.1526..................................................................................... 12
TEX. OCC. CODE § 205.001 ......................................................................9, 26, 46, 52
TEX. OCC. CODE § 205.101 ...................................................................................... 47
TEX. OCC. CODE § 205.201 ...................................................................................... 46
TEX. OCC. CODE § 205.203 ..........................................................................29, 33, 52
TEX. OCC. CODE § 205.206 ..........................................................................29, 33, 52
TEX. OCC. CODE § 205.255 ................................................................................30, 52
OTHER AUTHORITIES
Act of May 29, 1997, 75th Leg., R.S., ch. 1170, § 1 ...........................................9, 39
Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8 ...........................................8, 12
Tex. Att’y Gen. Op. DM-471 (1998) ................................................................. 11-12
Tex. Att’y Gen. Op. DM-472 (1998) ...................................................................8, 12
Tex. Att’y Gen. Op. DM-415 (1996) ......................................................................... 7
Tex. S.B. 1601, 82nd Leg., R.S. (2011).............................................................11, 39
xii
ISSUES PRESENTED
ISSUE 1: Because acupuncture is outside the statutory scope of
chiropractic, the Chiropractic Board’s rules authorizing chiropractors to
practice acupuncture without a license from the Acupuncture Board are
invalid.
ISSUE 2: Alternatively, the statutory scheme purportedly authorizing
chiropractors to practice acupuncture violates the Texas Constitution because
the Legislature may not favor one school of medicine over another nor enact
legislation containing more than one subject.
ISSUE 3: The Chiropractic Board’s statute of limitations defense fails as a
matter of law.
xiii
INTRODUCTION
Acupuncture and chiropractic are governed by distinct chapters of the
Occupations Code and are subject to regulation by separate administrative boards.
In these two chapters, the Legislature has set forth the unique training and
education requirements for each healthcare profession. And the Legislature has
granted each governing board the authority to regulate the healthcare profession
within its expertise—the Chiropractic Board regulates the practice of chiropractic
and the Texas State Board of Acupuncture Examiners (“Acupuncture Board”)
regulates the practice of acupuncture. Statutes governing healthcare professions
like chiropractic and acupuncture serve a critical function: they protect the public
by ensuring baseline standards that the public can assume have been met when
seeking a particular healthcare treatment.
In this case, the Association challenged Chiropractic Board rules that
authorize chiropractors to practice acupuncture without a license from or oversight
by the Acupuncture Board. The Chiropractic Board adopted these rules even
though the Chiropractic Chapter limits chiropractic to treatment of the
musculoskeletal system and expressly prohibits chiropractors from performing
incisive procedures, with only one narrow exception for the use of needles for
diagnostic blood draws.
1
The Chiropractic Board performs no regulatory oversight over the practice
of acupuncture by its licensees, has no expertise in acupuncture, and does not
require its licensees to complete the education and training the Legislature has
statutorily determined is necessary for the safe practice of acupuncture. Licensed
acupuncturists must complete at least 2,625 hours in acupuncture training in a four-
year degree program. But the Chiropractic Board requires chiropractors to
complete only a paltry 100 hours of acupuncture instruction, with no requirement
of actual clinical training. The Chiropractic Board does not know how many or
which chiropractors practice acupuncture in Texas or if those chiropractors have
met even these minimal “standards” for the practice of acupuncture. This is simply
one strand in a larger pattern for the Chiropractic Board—authorizing healthcare
practices that far exceed what is “chiropractic,” even after censure by the
Legislature, the courts, and state officials.
Recognizing nothing in Texas Occupations Code, Chapter 201
(“Chiropractic Chapter”) 3 authorized the practice of acupuncture by its licensees,
the Chiropractic Board creatively commandeered a term in the Chapter 205
(“Acupuncture Chapter”) 4—defining acupuncture as the “nonincisive,
nonsurgical” insertion of acupuncture needles. The Board has twisted that term
3
The Chiropractic Chapter is attached as App. C.
4
The Acupuncture Chapter is attached as App. D.
2
into an “outside the Chapter” exception to the Chiropractic Chapter’s prohibition
on incisive procedures. But the Acupuncture Chapter does not mention
chiropractors, does not excuse chiropractors from obtaining a license from the
Acupuncture Board, does not except chiropractors from the minimum education
and training hours the Legislature has determined are required to safely and
effectively perform the procedure, and does not remove chiropractors from
oversight by the Acupuncture Board when practicing acupuncture.
The Court should reject the Chiropractic Board’s effort to pile so much
meaning on the term “nonincisive” in the Acupuncture Chapter. The Chiropractic
Board’s hijacking of a term in another occupation’s governing statute to reinvent
its own scope of practice creates a statutory scheme in which practitioners and the
public are required to hop-scotch between the Acupuncture Chapter and the
Chiropractic Chapter (and potentially various other Occupations Code chapters and
agency rules) to determine what procedures chiropractors are authorized to
perform. If the Chiropractic Board’s rules are allowed to stand, this Court’s
conclusion will create a precedent where a regulatory board may simply pronounce
that its practitioners can perform another healthcare profession without complying
with the regulatory framework required by state law. The Chiropractic Board’s
novel interpretation is unreasonable and unworkable.
3
In adopting and improperly amending rules authorizing the unlicensed
practice of acupuncture, the Chiropractic Board has exceeded the scope of its
statutory authority and the rules should be declared invalid. Alternatively, the
statutory scheme purportedly authorizing chiropractors to practice acupuncture
without a license or oversight by the Acupuncture Board violates the provisions of
the Texas Constitution prohibiting legislation that favors one branch of medicine or
contains more than one subject. The Court should reverse the trial court’s judgment
and render judgment for the Association.
STATEMENT OF FACTS
A. Acupuncture and chiropractic are distinct practices regulated by
separate regulatory boards.
The Texas Occupations Code is delineated into chapters, each regulating
distinct professions. Each of those chapters requires specific training and licensing
unique to each profession to ensure persons practicing those professions are well-
trained in their chosen field. Because the Legislature sets forth education and
training requirements unique to each profession, Texas consumers are able to
safely choose from providers who are appropriately qualified to practice a
particular procedure. The Chiropractic Chapter governs the practice of
chiropractic; the Acupuncture Chapter governs the practice of acupuncture.
As is true with other regulated professions, chiropractors may only perform
procedures that are within the statutory scope of the practice of chiropractic, and
4
the Chiropractic Board may only adopt rules governing chiropractic. See TEX. OCC.
CODE §§ 201.002, 201.152. Under the Chiropractic Chapter, chiropractors are
5
limited to treating the musculoskeletal system. See id. § 201.002(b)(1)-(2). And
incisive procedures—defined by that chapter as “making an incision into any
tissue, cavity, or organ by any person or implement”—are expressly identified as
6
outside the scope of chiropractic practice. See id. §§ 201.002(a)(3), (b)(2).
The Chiropractic Chapter’s prohibition against incisive procedures
identifies only one exception: “the use of a needle for the purpose of drawing
blood for diagnostic testing.” Id. § 201.002(a)(3). Thus, the Chiropractic Chapter
considers the use of a needle to be an incisive procedure. Nothing in the Chapter
cross-references the Acupuncture Chapter, lists acupuncture as an exception to the
prohibition on incisive procedures, or otherwise specifies that a chiropractor can
practice acupuncture or any other procedure involving needles (except diagnostic
blood draws).
5
Chiropractors may also improve the subluxation complex, which is a category of spinal
disorders, using nonincisive, nonsurgical procedures such as adjustment and manipulation. Tex.
Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464, 468 (Tex. App.—Austin 2012,
pet. denied). Because subluxation refers to a disorder of the spine, for ease of reference in this
brief, the term musculoskeletal is used to encompass this term.
6
Surgical procedures are also prohibited, but there is no dispute that acupuncture is not a surgical
procedure. See TEX. OCC. CODE § 201.002(a)(4), (b)(2).
5
Finally, though chiropractic is a healthcare profession, the Chiropractic
Board is not overseen by the Texas Medical Board, and chiropractors are exempt
from complying with the Texas Medical Practice Act—but only to the extent they
engage strictly in the practice of chiropractic. See id. §§ 151.002(13), 151.052. The
Chiropractic Chapter prohibits the use of needles by chiropractors; thus, when a
chiropractor practices acupuncture, he is not strictly engaged in the practice of
chiropractic.
B. Despite the Chiropractic Chapter’s prohibition on needle use, the
Chiropractic Board has repeatedly asserted that chiropractors may
practice acupuncture and other procedures requiring needle use.
Since the 1990s, the Chiropractic Board has controversially asserted that
acupuncture and other procedures involving needles, such as needle
electromyography (“needle EMG”), are within the scope of the practice of
chiropractic. See Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d
7
464, 469 (Tex. App.—Austin 2012, pet. denied). The Legislature responded to
this controversy in 1995 by enacting the current statutory language in the
Chiropractic Chapter prohibiting chiropractors from practicing incisive procedures,
with only the one exception for diagnostic blood draws. Id. When the Chapter was
amended to prohibit incisive procedures, Representative Janek explained that
7
This Court’s Texas Medical Association opinion is attached as App. F.
6
“[t]his amendment would take out any ability by the chiropractors to put needles
into people.” Id. n.7. Soon after, in light of this amendment, the Attorney General
issued an opinion declaring that acupuncture is outside the scope of the practice of
chiropractic. Tex. Att’y Gen. Op. No. DM-415 (1996). The Attorney General
reached this conclusion because the sole exception to the prohibition on the
performance of incisive procedures was diagnostic blood draws. Id. Thus, the
Attorney General reasoned that all other procedures involving needles were outside
the statutory scope of chiropractic. Id.
Disregarding the Attorney General’s opinion, the Chiropractic Board
8
nonetheless continued asserting that its practitioners could practice acupuncture.
This was simply another chapter in the Chiropractic Board’s long history of
attempting to aggrandize the practice of chiropractic far beyond what is
“chiropractic,” not only as commonly understood but as defined by statute:
• The Chiropractic Board claimed chiropractors could perform needle
EMG. An administrative law judge found that needle EMG was not
within the scope of chiropractic, but the Chiropractic Board continued
to advise chiropractors that they could perform the procedure. 9 It
continued to do so until this Court shut down the practice by
concluding that needle EMG is an incisive procedure. See Tex. Med.
Ass’n, 375 S.W.3d at 481-82, 497.
8
CR 577.
9
Id.
7
• The Chiropractic Board claimed that chiropractors may perform
manipulation under anesthesia (“MUA”). Consequently, the
Legislature amended the Chiropractic Chapter to prohibit
chiropractors from performing MUA, 10 but the Chiropractic Board
continued advising chiropractors that they could perform the
procedure. 11 Again, it was not until this Court mandated that MUA is
a surgical procedure that the Chiropractic Board finally conceded that
MUA was outside the scope of chiropractic. See id. at 488.
• The Chiropractic Board contended that chiropractors could inject
substances into patients. The Attorney General opined that the
injection of substances is the use of a needle and is thus outside the
scope of chiropractic. See Tex. Att’y Gen. Op. DM-472 (1998). The
Chiropractic Board ignored this opinion and continued advising
chiropractors that they could perform procedures involving needles
(like needle EMG). 12
• The Comptroller found that the Chiropractic Board had refused to
comply with legislative enactments by failing to develop rules
clarifying restrictions on performing incisive and surgical procedures,
and recommended that the Chiropractic Board adopt rules establishing
clear guidelines on the permissible scope of practice. 13 The
Chiropractic Board declined to do so until forced to by the
Legislature, despite the fact that it gave the Comptroller written
assurances that it had begun the process of developing rules. 14 See Act
of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8 (codified as TEX. OCC.
CODE § 201.1525).
10
CR 578.
11
Id.
12
CR 577.
13
CR 578.
14
Id.
8
• The Chiropractic Board evaded rule challenges and input from
stakeholders by issuing opinions informing chiropractors that they
could perform various procedures, rather than adopting rules. Tex.
Med. Ass’n, 375 S.W.3d at 470. 15
C. The Legislature amended the Acupuncture Chapter to define
acupuncture as the “nonincisive, nonsurgical” insertion of an
acupuncture needle.
In 1997, in the course of the Acupuncture Board’s sunset review, the
Legislature amended the Acupuncture Chapter to define acupuncture as the
“nonincisive, nonsurgical” insertion of an acupuncture needle. See Act of May 29,
1997, 75th Leg., R.S., ch. 1170, § 1 (Senate Bill 361) (codified as TEX. OCC. CODE
§ 205.001(2)). This is the language the Chiropractic Board relies on to argue that
the definition of acupuncture in the Acupuncture Chapter constitutes both an
exception to the Chiropractic Chapter’s prohibition against needle use and an
invitation for chiropractors to practice acupuncture without a license from or
oversight by the Acupuncture Board.
The bill’s legislative history demonstrates that:
15
CR 574-80.
9
• The Acupuncture Board’s sunset bill originated in the Senate. Senator
Madla offered an amendment amending the definition of acupuncture
in the Acupuncture Chapter by inserting the term “nonsurgical,
nonincisive” in an apparent indirect attempt to allow chiropractors to
practice acupuncture. 16 The Senate passed the legislation as
amended. 17
• When the bill was heard in the House Committee on Public Health,
Representative Gray offered amendments that removed the
“nonincisive, nonsurgical” amendment to the Acupuncture Chapter
that had been adopted in the Senate and instead amended the
Chiropractic Chapter to expressly authorize chiropractors to practice
acupuncture, set forth training and education requirements, and
provide for oversight by the Chiropractic Board. 18
• The legislation proceeded to the House floor. The House committee
amendments providing direct authority for chiropractors to practice
acupuncture were struck on point of order because the sunset bill was
limited to the function of the Acupuncture Board and the proposed
amendments to the scope of chiropractic were not germane to the
bill. 19
• Ultimately, the bill was sent to conference committee where the
conferees reinserted the “nonincisive, nonsurgical” amendment to the
definition of acupuncture in the Acupuncture Chapter that had
previously been added in the Senate. 20
Notably, the Chiropractic Chapter was not amended to affirmatively allow
chiropractors to practice acupuncture, even though there was an effort to do so.
And nothing in Senate Bill 361 gave the Chiropractic Board the authority to adopt
16
CR 455, 466.
17
Id.
18
CR 512.
19
CR 515-16.
20
CR 526, 534, 536.
10
rules authorizing chiropractors to practice acupuncture or created an exemption for
chiropractors from the Acupuncture Chapter’s education and licensing
requirements. Indeed, Representative Gray cautioned that amending the definition
of acupuncture in the Acupuncture Chapter would put the practice of acupuncture
by chiropractors under regulation by the Acupuncture Board, not the Chiropractic
Board. 21 Since Senate Bill 361’s enactment, legislation has unsuccessfully been
proposed to authorize chiropractors to practice acupuncture under regulation by the
Chiropractic Board. See Tex. S.B. 1601, 82nd Leg., R.S. (2011).
Nonetheless, relying on the amendment to the Acupuncture Chapter, the
Attorney General reversed course, reasoning that the Chiropractic Chapter and
Acupuncture Chapter should be read in pari materia since both regulate healthcare
professions. Tex. Att’y Gen. Op. DM-471 (1998). Improperly reading the chapters
together, the Attorney General reached the unsound conclusion that acupuncture
had become within the statutory scope of the practice of chiropractic simply by
virtue of the amendment to the Acupuncture Chapter. Id. That same day, the
Attorney General also issued a contradictory opinion concluding that the use of
needles continued to exceed the statutory scope of chiropractic, with the statutory
21
CR 478-80.
11
exception of blood draws and the “new exception” for acupuncture recognized in
DM-471. Tex. Att’y Gen. Op. DM-472 (1998).
D. The Chiropractic Board adopted rules expressly authorizing
chiropractors to practice acupuncture without a license from the
Acupuncture Board.
A few years later, in the course of the Chiropractic Board’s 2004 sunset
review, the Sunset Advisory Committee criticized the Chiropractic Board for its
systematic refusal to comply with the confines of the Chiropractic Chapter’s scope
of practice provision. 22 It found that “[t]he Board has a history of acting
unilaterally to expand scope of practice in a way that seems to indicate a greater
interest in promoting the profession than following the law and protecting
patients.” 23
In response, during the 2005 legislative session, the Legislature enacted a
provision requiring the Chiropractic Board to adopt rules clarifying which specific
activities are included in the scope of the practice of chiropractic. See Act of May
27, 2005, 79th Leg., R.S., ch. 1020, § 8 (codified at TEX. OCC. CODE §§ 201.1525-
.1526). In 2006, the Chiropractic Board responded by promulgating 22 Texas
Administrative Code § 75.17, formally authorizing chiropractors to perform
manipulation under anesthesia, acupuncture, and needle EMG. Subsequently, in
22
CR 574, 577-798.
23
CR 577.
12
2009, the Chiropractic Board enacted 22 Texas Administrative Code § 75.21,
which set forth parameters for the practice of acupuncture by chiropractors.
E. This Court invalidated several Chiropractic Board rules, including a
rule authorizing chiropractors to use needles, but the Chiropractic
Board has refused to repeal its rules authorizing needle use and the
practice of acupuncture.
The Texas Medical Association challenged several of the Chiropractic
Board’s newly adopted scope of practice rules, including those authorizing
chiropractors to perform needle EMG, on grounds that needle EMG is an incisive
procedure involving a needle and thus is outside the statutory scope of chiropractic.
See Tex. Med. Ass’n, 375 S.W.3d at 472. The district court agreed and invalidated
several of the rules, including Rule 75.17(a)(3), which expressly authorized
chiropractors to use needles. At the time of the suit, Rule 75.17(a)(3) stated:
(3) Needles may be used in the practice of chiropractic under
standards set forth by the Board but may not be used for procedures
that are incisive or surgical.
(A) The use of a needle for a procedure is incisive if the
procedure results in the removal of tissue other than for
the purpose of drawing blood.
(B) The use of a needle for a procedure is surgical if the
procedure is listed in the surgical section of the CPT
Codebook.
This Court affirmed the portion of the district court’s judgment invalidating
Rule 75.17(a)(3), concluding that needle EMG is an incisive procedure. See Tex.
13
Med. Ass’n, 375 S.W.3d at 497. 24 In response to the Court’s decision, in 2013, the
Chiropractic Board repealed or amended several rules related to needle EMG that
were declared invalid by the district court, but declined to repeal Rule 75.17(a)(3)
and other rules authorizing needle use by chiropractors. That same year the
Chiropractic Board amended Rule 75.21 to specify that chiropractors must comply
with the chiropractic scope of practice when performing acupuncture.
In January 2015, after the summary judgment hearing in this case, but before
the trial court’s judgment, the Chiropractic Board repealed Rules 75.17 and 75.21
as part of a non-substantive reorganization of its rules, then renumbered Rule 75.17
as Rules 78.13 and 78.15, and renumbered Rule 75.21 as Rule 78.14. See 40 Tex.
Reg. 376, 379 (2015). In the current version of the rules, Rule 78.13 provides that a
person practices chiropractic if he or she performs “nonsurgical, nonincisive
procedures,” and expressly authorizes needles to be used if they are not used for
incisive, surgical procedures. 22 TEX. ADMIN. CODE §§ 78.13(b)(1)(B), (b)(2).
Conversely, Rule 78.15 excludes from the practice of chiropractic “incisive or
surgical procedures.” Id. §§ 78.15(a)(1), (b)(1)(A), (b)(2)(A). Rule 78.13 also
narrowly defines an incision as “a cut or surgical wound; also, a division of the soft
24
The Texas Medical Association also challenged rules related to other procedures, including
MUA. These rules were also invalidated by the district court. This Court affirmed most of the
district court’s judgment, including the portion invalidating the MUA rule, but remanded other
claims.
14
parts made with a knife or hot laser,” id. § 78.13(a)(4), despite the fact that the
Chiropractic Chapter broadly defines an incisive procedure as an incision into “any
tissue, cavity, or organ by any person or implement,” TEX. OCC. CODE
§ 201.002(a)(3) (emphasis added).
Thus, by crafting a definition of “incision” that is far narrower than the
Chiropractic Chapter’s broad definition of incisive, the Chiropractic Board has
enlarged the class of invasive procedures chiropractors are allowed to perform
beyond that allowed in the Chiropractic Chapter. Further, Rules 78.13(e)(2)(C) and
78.14 specifically authorize chiropractors to practice acupuncture in violation of
the Chiropractic Chapter and with minimal education and training “standards” for
the practice of acupuncture by chiropractors.
The Association filed suit challenging the Chiropractic Board’s rules that
authorize chiropractors to practice acupuncture—former 22 Texas Administrative
25
Code §§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21, which are now 22 Texas
26
Administrative Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14. The parties
filed competing motions for summary judgment. After a hearing, the trial court
granted the Chiropractic Board’s motion and denied the Association’s motion.
25
The rules repealed in January 2015 can be found in the record at CR 213-24.
26
The new version of the rules is attached as App. B.
15
SUMMARY OF ARGUMENT
The Court should invalidate the Chiropractic Board’s rules that authorize
chiropractors to practice acupuncture without a license from or oversight by the
Acupuncture Board because the chiropractic scope of practice does not include the
practice of acupuncture. See 22 TEX. ADMIN. CODE §§ 78.13(a)(4), (b)(2),
(e)(2)(C), 78.14. The Chiropractic Chapter limits the practice of chiropractic to
treatment of the musculoskeletal system and expressly prohibits chiropractors from
performing incisive procedures, except for diagnostic blood draws. Under
established principles of statutory construction, since the prohibition against
incisive procedures includes an exception for a needle used for one purpose, the
prohibition encompasses needles used for other purposes—including acupuncture.
With a single-minded focus on purported legislative intent, the Chiropractic
Board has argued that the Legislature intended to exempt chiropractors practicing
acupuncture from the Acupuncture Chapter’s licensing requirements when it
amended the Acupuncture Chapter to define acupuncture as the “nonincisive”
insertion of an acupuncture needle. But the Legislature’s intent about an enactment
is expressed through the statutory language. And nothing in the Acupuncture
Chapter (or Chiropractic Chapter) grants chiropractors the authority to practice
acupuncture without a license from or oversight by the Acupuncture Board.
Further, even if it is appropriate to consider legislative history, the Chiropractic
16
Board’s argument fails because the history does not support that the amendment
successfully authorized chiropractors to practice acupuncture without a license.
The Chiropractic Board’s interpretation of the Acupuncture Chapter and
Chiropractic Chapter is unreasonable and entitled to no deference.
Alternatively, if Senate Bill 361’s amendment to the Acupuncture Chapter
expanded the scope of chiropractic as set forth in the Chiropractic Chapter to
include acupuncture, the statutory scheme is unconstitutional. First, it creates a
regime in which chiropractors can practice acupuncture with virtually no training
in the procedure while acupuncturists must complete extensive education and
training to become licensed. This violates the Texas Constitution’s prohibition
against preference for one school of medicine over another. See TEX. CONST. art.
XVI, § 31. Second, it violated the one-subject rule because that bill concerned the
continuation and functions of the Acupuncture Board, not the scope of the practice
of chiropractic. See id. art. III, § 35(a).
Finally, the Chiropractic Board’s affirmative defense of limitations fails as a
matter of law. The Board urges that because it has for more than four years
illegally authorized chiropractors to practice acupuncture, the residual statute of
limitations in Texas Civil Practice and Remedies Code, Section 16.051 allows it to
continue to exceed its statutory authority and violate Texas law, daily and with
impunity. No court has applied the residual statute of limitations to an
17
Administrative Procedures Act declaratory judgment action challenging the
validity of agency rules. But even if it applied, the four-year limitations period has
not expired because the Chiropractic Board amended the challenged rules in 2013
and 2015 and the rules are a continuing and ongoing violation of state law.
The Association urges the Court to reverse and render judgment for the
Association declaring the Chiropractic Board’s rules authorizing chiropractors to
practice acupuncture are invalid or, alternatively, the statutory scheme authorizing
chiropractors to practice acupuncture is unconstitutional. In the further alternative,
if the Court believes any fact issue exists, the Association requests that the Court
remand for a new trial.
ARGUMENT
I.
Because acupuncture is outside the statutory scope of
chiropractic, the Chiropractic Board’s rules authorizing
chiropractors to practice acupuncture without a license from the
Acupuncture Board are invalid.
A. The Chiropractic Board only has authority to adopt rules consistent
with its statutory grant from the Legislature.
An agency’s power to make rules is dependent on a valid statutory grant.
Pub. Util. Comm’n of Tex. v. City of Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310,
315 (Tex. 2001); R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685
(Tex. 1992). In determining whether rules were adopted or amended within an
agency’s statutory grant, a court must consider whether each rule (1) contravenes
18
specific statutory language, (2) runs counter to the objectives of the underlying
statute, or (3) imposes additional burdens, conditions, or restrictions in excess of or
inconsistent with the statutory provisions. Physician Assistants Bus. Alliance of
Tex., LLC v. Tex. Med. Bd., No. 03-12-00735-CV, 2015 WL 681010, at *2 (Tex.
App.—Austin Feb. 13, 2015, no pet.); Tex. Med. Ass’n, 375 S.W.3d at 474; Tex
Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Examiners, 254 S.W.3d 714,
719 (Tex. App.—Austin 2008, pet. denied). “Absent specific or implied statutory
authority, an agency rule is void.” Physician Assistants Bus. Alliance, 2015 WL
681010, at *2.
Further, though courts give great weight to an agency’s interpretation of a
statute, this deferential standard of review only applies if the language of a statute
is ambiguous, and courts give even less deference when legislative intent is at
issue. R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future and Clean Water,
336 S.W.3d 619, 625 (Tex. 2011); In re Smith, 333 S.W.3d 349, 356 (Tex. 2011).
Additionally, an agency’s construction of a statute must be reasonable. Tex.
Citizens for a Safe Future and Clean Water, 336 S.W.3d at 625. And notably, if an
agency attempts to regulate activities outside the scope of its statutory grant, the
rule is void regardless of how reasonable it may be. Pruett v. Harris Cnty. Bail
Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008). Relatedly, a court grants no deference
to an agency’s interpretation in regard to issues that do not lie within the agency’s
19
expertise. Rogers v. Tex. Bd. of Architectural Exam’rs, 390 S.W.3d 377, 384 (Tex.
App.—Austin 2011, no pet.).
The Chiropractic Board’s rules authorizing chiropractors to practice
acupuncture contravene the plain statutory language and objectives of the
Chiropractic Chapter. And the Chiropractic Board’s effort to co-opt the
Acupuncture Chapter to redefine chiropractic is entitled to no deference because its
interpretation is unreasonable, and acupuncture is neither subject to the
Chiropractic Board’s regulation nor within its expertise.
B. The Chiropractic Chapter unambiguously prohibits chiropractors from
performing procedures involving needles, including acupuncture,
because there is only one exception for needles—those used for
diagnostic blood draws.
1. The Chiropractic Chapter broadly instructs that ‘incisive”
encompasses incisions made by needles into the skin.
If a statute is unambiguous, a court looks no further beyond the literal text.
Physician Assistants Bus. Alliance, 2015 WL 681010, at *2. The Chiropractic
Chapter defines, without ambiguity, what is “chiropractic.” A person practices
chiropractic if the person (1) “uses objective or subjective means to analyze,
examine, or evaluate the biomechanical condition of the spine and musculoskeletal
system of the human body,” or (2) “performs nonincisive, nonsurgical procedures,
including adjustment and manipulation, to improve the subluxation complex or the
biomechanics of the musculoskeletal system.” TEX. OCC. CODE § 201.002(b).
20
“Incisive,” in turn, is defined as “making an incision into any tissue, cavity, or
organ by any person or implement,” with one exception for “the use of a needle for
the purpose of drawing blood for diagnostic testing.” Id. § 201.002(a)(3).
Acupuncture is an invasive procedure in which acupuncturists use needles to
penetrate skin. The Chiropractic Chapter specifically instructs that incisive
procedures include those procedures in which an incision is made into any tissue,
cavity, or organ by any person or implement. Id. § 201.002(a)(3). Skin is both a
tissue and an organ, 27 and a needle is an “implement” for making an incision.28
Thus, a needle penetrating skin is an incisive procedure expressly prohibited by the
Chiropractic Chapter. 29
2. Statutory construction principles confirm that the Chiropractic
Chapter prohibits all needle use except for needles used for
diagnostic blood draws.
The legal question raised in this case was not answered by this Court’s
decision in Texas Medical Association. The Court noted that differences might
27
See Merriam-Webster Dictionary, available at http://www.merriam-
webster.com/dictionary/skin; https://www.aad.org/dermatology-a-to-z/for-kids/about-skin;
http://www.webmd.com/skin-problems-and-treatments/picture-of-the-skin.
28
Dictionary.com, available at http://dictionary.reference.com/browse/implement) (defining
“implement” as an article used in some activity, especially an instrument, tool, or utensil).
29
Indeed, Yvette Yarbrough, the Executive Director of the Chiropractic Board, admitted at a
2012 Chiropractic Board meeting that acupuncture is “in practice” an incisive procedure, and
that chiropractors may practice the procedure only by latching onto the definition of acupuncture
in the Acupuncture Chapter (discussed further below). Chiropractic Board July 11, 2012 ad hoc
meeting, at 1:46:00, available at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
21
exist between the “technical” and “ordinary” meanings of “incisive,” and that the
“technical” meaning may be limited to a “cut” (such as by an instrument with a
beveled edge) while the ordinary meaning may also include “piercing.” See 375
S.W.3d at 479-80. The Court observed that it could be such a distinction that
would explain how acupuncture needles would be capable of being inserted in a
“nonincisive” manner under the Acupuncture Chapter. Id. at 481.
But the Court did not reach the question of whether “incisive” as used in the
Chiropractic Chapter— “making an incision into any tissue, cavity, or organ by
any person or implement”—is limited to “cutting” as stated in the Chiropractic
Board’s Rule 78.13(a)(4). The Medical Board did not challenge that definition in
the Chiropractic Board’s rules. Id. at 480. The Association challenges that
definition now and urges the Court to conclude, as a matter of statutory
construction, that the term “incisive” in the Chiropractic Chapter encompasses all
needle use (save the one listed exception for needles used for diagnostic blood
draws), regardless of whether a needle has a beveled edge.
First, under the doctrine of expressio unius est exclusio, the fact that a needle
used for diagnostic purposes is the only exception to the Chiropractic Chapter’s
prohibition on “incisive” procedures conveys both the Legislature’s belief that
needles are incisive and intent to prohibit chiropractors from using needles for
other purposes:
22
• The Legislature is presumed to choose its words carefully and include
or exclude particular words purposefully. TGN-NOPEC Geophysical
Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); Tex Orthopaedic
Ass’n, 254 S.W.3d at 719.
• When the Legislature intends to include a particular term in a statute,
it does so expressly. See Beeman v. Livingston, __ S.W.3d __, 2015
WL 4072404, at *4 (Tex. June 26, 2015).
• When a statute lists specific exceptions to its application, the intent is
clear that no other exceptions shall apply. Mid-Century Ins. Co. of
Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999). This is especially true
when the exception is of the same type expressly included—here,
procedures involving needles. Fazio v. Cypress/GR Houston I, L.P.,
403 S.W.3d 390, 421 (Tex. App.—Houston [1st Dist.] 2013, pet.
denied); CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal.
of Cities, 263 S.W.3d 448, 464 (Tex. App.—Austin 2008), aff’d 324
S.W.3d 95 (Tex. 2010).
• A rule is void if it conflicts with a statute’s plain language, and a rule
may not change the scope of a legislatively mandated exception.
Physician Assistants Bus. Alliance, 2015 WL 681010, at *3; see also
State Office of Pub. Util. Council v. Pub. Util. Comm’n of Tex., 131
S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied).
In adopting and later amending rules authorizing chiropractors to practice
acupuncture, the Chiropractic Board has read into its scope of practice statute an
additional exception to the prohibition on needle use that is not there. In the
process, the Chiropractic Board has impermissibly attempted to narrow the scope
of what is “incisive.” This Court has rejected similar efforts to read into scope of
practice statutes terms that are not included. See, e.g., Kuntz v. Khan, No. 03–10–
00160–CV, 2011 WL 182882, at *7-8 (Tex. App.—Austin 2011, no pet.).
23
Had the Legislature intended for chiropractors to practice acupuncture, it
could have listed acupuncture as a second exception to the prohibition against
incisive procedures. Or the Legislature could have defined chiropractic as
including acupuncture, along with the other practices expressly listed, such as the
adjustment and manipulation of the musculoskeletal system. See TEX. OCC. CODE
§§ 201.002(a)(3), (b). Indeed, legislation that would have authorized chiropractors
to practice acupuncture has been proposed and rejected on three occasions. See
Part I.C.2.b, infra. The Chiropractic Board may not imply the practice of
acupuncture into its scope of practice statute where it has been excluded.
Second, it is also most consistent with the context of the Chiropractic
Chapter to interpret “incisive” as encompassing all procedures involving needles,
including acupuncture. Courts look to dictionary definitions for the meaning of a
term used in a statute and apply the definition that is most consistent with its use in
the statute. Beeman, 2015 WL 4072404, at *4; State v. $1,760.00 in U.S. Currency,
406 S.W.3d 177, 180 (Tex. 2013). And courts “rely on the doctrine of noscitur a
cociis (“it is known by its associates”) to avoid ascribing to a word a meaning so
broad that it is incommensurate with the statutory context. Beeman, 2015 WL
4072404, at *4; see also Ritchie v. Rupe, 443 S.W.3d 856, 869 (Tex. 2014).
Contextual clues come from the words immediately surrounding a term. See
Greater Houston P’ship v. Paxton, __ S.W.3d __, 2015 WL 3978138, at *5-7
24
(Tex. June 26, 2015). When read in its contextual environment, the Chiropractic
Chapter’s prohibition on incisive procedures encompasses acupuncture because by
including blood draw needles within the definition of incisive, the Legislature
intended for “incisive” to encompass other needles as well.
Third, the Court should not read the term “incisive” in a manner that leads to
absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008);
Tex. State Bd. of Chiropractic Examiners v. Abbott, 391 S.W.3d 343, 347 (Tex.
App.—Austin 2013, no pet.). An acupuncture needle is a needle and, as
Representative Janek observed during debate on Senate Bill 361, “a needle is a
30
needle.” It is absurd to contemplate a statutory scheme in which it is necessary to
examine each needle used in a particular practice under a magnifying glass to
determine whether it has a beveled edge or not. See Jose Carreras, M.D., P.A. v.
Marroquin, 339 S.W.3d 68, 73 (Tex. 2011). This is not what the Legislature
intended when it amended the Chiropractic Chapter to prohibit incisive procedures.
See Tex. Med. Ass’n, 375 S.W.3d at 469 n.7.
30
CR 493.
25
3. Chiropractic is limited to specific techniques on discrete parts of
the body while acupuncture is a separate medical profession in
which practitioners treat the whole body.
Additionally, while acupuncture treats and mitigates “a human condition,”
TEX. OCC. CODE § 205.001(2), chiropractic is limited to treating the
musculoskeletal system, id. § 201.002(b). Acupuncture cannot be included within
the statutory scope of chiropractic because acupuncture is not limited to treatment
of the musculoskeletal system and so, by its very nature, exceeds the scope of
chiropractic. Acupuncture is also a separate medical practice and profession, with
its own history and philosophical and theoretical underpinnings, entirely separate
from that of chiropractic.
In adopting rules authorizing chiropractors to practice acupuncture, the
Chiropractic Board has authorized its licensees to practice an entirely different type
of medicine. The rules are akin to an Acupuncture Board rule authorizing
acupuncturists to practice chiropractic or dentistry—professions regulated by
separate regulatory boards with distinct licensing requirements. And the
Chiropractic Board has not only authorized its licensees to practice a different
medical profession, but has unilaterally exempted them from the education,
training, and licensing requirements mandated by the Legislature and the
regulatory board that does regulate that profession. The Chiropractic Board’s rules
26
undermine and devalue the education and training of those who lawfully perform
acupuncture and put the public at risk of untrained practitioners.
The fact that the Chiropractic Board has included a limitation in its
acupuncture rule that the “therapeutic modalities” used in performing acupuncture
“must comply with the chiropractic scope of practice as defined by Texas
Occupations Code § 201.002” does nothing to make the Board’s rules valid. See 22
TEX. ADMIN. CODE § 78.14(a). The limitation instead creates a circular argument:
the scope of the practice of chiropractic, as defined in the Chiropractic Chapter,
does not include acupuncture. The Board cannot simply “make” chiropractic
include acupuncture by purportedly limiting acupuncture to a statutory scope that
does not include acupuncture in the first place.
In sum, because the Chiropractic Chapter unambiguously prohibits
chiropractors from using needles (except for diagnostic blood draws) and limits
chiropractic to treatment of the musculoskeletal system, and chiropractic and
acupuncture are entirely separate healthcare professions with discreet enabling
statutes, the Chiropractic Board exceeded its statutory authority in adopting, and
later amending, rules authorizing chiropractors to practice acupuncture. The Court
should render judgment for the Association and declare the rules invalid.
27
C. The Chiropractic Board’s interpretation of the Acupuncture Chapter as
indirectly expanding the scope of chiropractic is entitled to no deference
because it is unreasonable.
1. The Chiropractic Board’s interpretation contravenes the
regulatory purpose of occupational statutes and creates a public
health risk.
The Chiropractic Board’s interpretation of its scope of practice statute is
entitled to no deference because it contravenes the purpose of the Occupation
Code’s regulation of healthcare professions and creates a public health risk. The
purpose of healthcare regulations is to protect public health and safety. Tex. State
Bd. of Barber Exam’rs v. Beaumont Barber College, Inc., 454 S.W.2d 729, 731
(Tex. 1970). This is why each chapter of the Occupations Code, including the
Acupuncture and Chiropractic Chapters, sets forth specific educational and training
requirements for a person to become licensed to perform a particular profession.
But by authorizing chiropractors to practice acupuncture without completing the
education and training requirements statutorily required for acupuncture, the
Chiropractic Board controverts the purpose of the Acupuncture Chapter and
creates a public health risk. Tex. Med. Ass’n, 375 S.W.3d at 474.
For acupuncturists licensed by the Acupuncture Board under the
Acupuncture Chapter:
28
• Acupuncturists are statutorily required to complete an intensive course
of study to lawfully practice acupuncture. Before an acupuncturist
may become licensed to practice acupuncture, a prospective licensee
must complete at least 1,800 instructional hours from an accredited
acupuncture school and satisfy at least two terms of a resident course
of clinical instruction (although, as explained below, Acupuncture
Board rules require acupuncture education to far exceed these
statutory minimums). See TEX. OCC. CODE §§ 205.203, 205.206; 22
TEX. ADMIN. CODE § 183.4. 31
• An applicant must attend an acupuncture school that is accredited or is
a candidate for accreditation by the Accreditation Commission for
Acupuncture and Oriental Medicine (“ACAOM”). See 22 TEX.
ADMIN. CODE §§ 183.2(2), 183.4(a)(4). ACAOM requires a minimum
of four years of oriental medicine and acupuncture study (a minimum
of 146 semester credits or 2,625 hours, including 870 hours of clinical
training). 32 All three acupuncture schools in Texas exceed these
33
minimum requirements.
• An applicant must have passed the Council of Colleges of
Acupuncture and Oriental Medicine Clean Needle Technique course
and practical examination. See id. § 184.4(a)(6). 34
31
The Acupuncture Board’s rules establishing education and training requirements are attached
as App. E.
32
See ACAOM Accreditation Manual, at 26, available at
http://www.acaom.org/documents/accreditation_manual_712.pdf.
33
See AOMA Graduate School of Integrative Medicine, Graduate Program Catalog 2014-2015,
at 15, available at http://aoma.edu/assets/uploads/files/AOMA_MAcOM_2014-15-w.pdf; Texas
Health and Science University, Masters of Science in Acupuncture and Oriental Medicine
Curriculum, available at http://www.thsu.edu/our-programs/ms-aom-curriculum/; American
College of Acupuncture and Oriental Medicine, 2015-2016 Catalog, at 16-18, available at
http://acaom.edu/attachments/Catalog.pdf.
34
See Council of Colleges of Acupuncture and Oriental Medicine Clean Needle Technique
Manual, Best Practices for Acupuncture Needle Safety and Related Procedures (2015), available
at http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf.
29
• An applicant must sit for the full series of National Certification
Commission for Acupuncture and Oriental Medicine (“NCCAOM”)
examinations, the requirements of which parallel ACAOM program
35
criteria. See 22 TEX. ADMIN. CODE §§ 183.2(19), 183.4(a)(5), (6).
• Acupuncturists must complete seventeen hours of continuing
education each year to enhance the licensee’s acupuncture knowledge,
skills, and competence. This includes training in acupuncture,
herbology, biomedicine, and ethics. TEX. OCC. CODE § 205.255; 22
TEX. ADMIN. CODE § 183.20.
In contrast, the Chiropractic Chapter does not include any statutorily
approved training or education requirements for chiropractors to practice
acupuncture—because it does not authorize chiropractors to practice acupuncture.
Rather, by rule, the Chiropractic Board has created a lackluster regime of
questionable education and credentialing requirements:
• Chiropractors must only complete a meager 100 hours of acupuncture
education and training to practice the procedure, with no
specifications as to the content of that training and no clinical training
requirement—grossly inadequate as compared to the course of study
mandated in the Acupuncture Chapter and Acupuncture Board rules.
See 22 TEX. ADMIN. CODE § 78.14. 36
35
See National Certification Commission of Acupuncture and Oriental Medicine Eligibility
Requirements, available at http://www.nccaom.org/applicants/eligibility-requirements.
36
CR 248-49l see also generally NBCE, Acupuncture Examination, available at
http://mynbce.org/wp-content/uploads/2015/07/acu_2015.pdf. The Chiropractic Board denied at
the trial court that chiropractors may complete the 100 hours of instruction without a clinical
component because “no course without clinical instruction has been approved by the Board.” CR
249-50. Yet Parker University is a chiropractic college approved by the Board for providing
acupuncture training, and it does not require any clinical training in acupuncture. See Texas
Board of Chiropractic Examiners meeting on acupuncture, July 11, 2012, at 2:04-2:07, available
at http://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3; see also Parker University,
Texas State Board Approvals, available at http://ce.parker.edu/state-board-approvals/texas/.
30
• Effective January 1, 2010, a chiropractor must successfully complete
either the standardized certification examination in acupuncture
offered by the National Board of Chiropractic Examiners (“NBCE”)
or the examination offered by the NCCAOM to practice acupuncture.
Id. § 78.14(d). As explained above, the NCCAOM examination is the
examination required by the Acupuncture Board to become a licensed
acupuncturist and requires at least 2,625 hours of training, but the
NBCE examination requires a mere 100 hours of classroom
instruction. 37
• The 100 hours of acupuncture instruction used to qualify for NBCE
certification in acupuncture is typically taught as continuing
education, not as for-credit coursework that is part of any degree
program or core curriculum. 38 The 100-hour “continuing education”
course in acupuncture may be taken while still training in
chiropractic—thus allowing students of chiropractic to learn an
entirely new discipline before even having completed the foundational
chiropractic curriculum. 39 Further, nothing prohibits chiropractors
from completing most of the course online. See id. § 78.14. 40
• Chiropractors need not complete any continuing education in
acupuncture. 41 Id.
Importantly, removing chiropractors from the licensing requirements of the
Acupuncture Board also removes them from the Acupuncture Board’s oversight.
And the Chiropractic Board has admitted that it is not regulating the practice of
37
See NBCE, Acupuncture Examination, at 3, available at http://mynbce.org/wp-
content/uploads/2015/07/acu_2015.pdf.
38
For instance, at Parker University, the acupuncture course is a continuing education course.
See Parker University Continuing Education, Acupuncture Program–Basic, available at
http://ce.parker.edu/programs/acupuncture-program-basic/.
39
See id. (allowing chiropractic students to enroll in the program).
40
CR 248-49.
41
CR 250.
31
acupuncture by chiropractors. 42 The Chiropractic Board does not require
chiropractors to receive a certificate or license endorsement from the Board to
practice acupuncture. Id. It also does not track how many chiropractors, and which
chiropractors, are practicing acupuncture and whether these chiropractors have
completed the Board’s minimal acupuncture training requirements. 43 The
Chiropractic Board has instead advised its licensees that it trusts that chiropractors
will “exercise reasonable care of the safety of patients” and has warned that any
chiropractor who performs acupuncture without training “does so at his or her own
44
risk.” As the Sunset Advisory Committee has observed, the Chiropractic Board’s
position appears to be buyer beware: the Board declines to regulate the practice of
acupuncture by chiropractors while simultaneously authorizing them to perform
the procedure. 45
42
CR 249-51.
43
CR 249-51, 253. At the summary judgment hearing, the Chiropractic Board’s counsel did not
know the number either: “We have evidence that over 1,400—over 1,000—the number is not
100 percent clear—over 1,000 chiropractors in Texas do practice acupuncture as a part of their
practice.” Reporter’s Record (“RR”) 18.
44
CR 284. At the summary judgment hearing, the Chiropractic Board’s counsel confirmed that
this is the Chiropractic Board’s stance: “We think chiropractors are responsible. They are going
to practice their profession in a safe way. If they think they need more than 100 hours of training
in order to incorporate acupuncture into their practice, they are going to receive that additional
training.” RR 28. And “we would think that a chiropractor who is incorporating acupuncture into
his practice is going to seek continuing education. It’s just not specifically required to be within
that particular scope. But it’s up to each individual chiropractor to ensure that they are practicing
their profession in a safe and effective manner.” RR 29.
45
CR 577.
32
The consequence of the Chiropractic Board’s construction of the
Chiropractic Chapter (and the one word it latches onto in the Acupuncture
Chapter) is a potential threat to public safety and health. Chiropractors lack the
education and training the Legislature has determined are statutorily required for
the safe performance of acupuncture, and those under-trained practitioners are not
subject to oversight by either the Acupuncture Board or the Chiropractic Board.
See TEX. OCC. CODE §§ 205.203, 205.206; see also Andrews v. Ballard, 498 F.
Supp. 1038, 1054 (S.D. Tex. 1980) (“An acupuncture needle in unskilled hands
can cause serious damage.”); Commonwealth v. Schatzberg, 371 A.2d 544, 547
(Pa. Cmwlth. 1977) (chiropractors should not practice acupuncture because
“acupuncture can cause immediate and serious medical problems”); 46 see also City
of Houston v. Clark, 197 S.W.3d 314, 318 (Tex. 2006) (in construing a statute, a
court should consider the consequences of a particular construction).
46
See also National Institute of Health’s National Center for Complementary and Integrative
Health, Acupuncture: What You Need to Know, available at
https://nccih.nih.gov/health/acupuncture/introduction#hed4 (advising that acupuncture is safe
when performed by experienced, well-trained practitioners, but can cause serious side effects
when improperly performed).
33
2. It is unreasonable for the Chiropractic Board to rely on another
profession’s scope of practice statute to allow its practitioners to
practice a procedure that is prohibited under the Chiropractic
Chapter.
a. The Chiropractic Board has impermissibly latched onto one
word (“nonincisive”) in the Acupuncture Chapter to
redefine its own scope of practice.
One of the fundamental principles of administrative law is that because an
agency is a creature of the Legislature, the agency only has the powers expressly
stated in its governing statute. State Agencies v. R.R. Comm’n of Tex., 421 S.W.3d
690, 699 (Tex. App.—Austin 2014, no pet.). The agency may not create or
exercise what really amounts to a new or additional power. Id. And while an
agency possesses some implied powers that are necessary to fulfill its express
functions, it may not, “through the guise of implied powers, exercise what is
effectively a new power, or a power contrary to a statute.” Id.
In the face of an unambiguous prohibition in the Chiropractic Chapter
against the use of needles, the Chiropractic Board has pursued an indirect route in
its crusade to allow chiropractors to insert needles into patients without adequate
training or oversight. The Board has inventively latched onto the definition of
acupuncture as the “nonincisive” insertion of acupuncture needles in the
Acupuncture Chapter to create an exception to the Chiropractic Chapter’s
prohibition against needle use. And the Chiropractic Board has contended that the
amendment to the Acupuncture Chapter’s definition of acupuncture was intended
34
to create a “carve out” from that chapter so that chiropractors could practice
acupuncture without a license from or oversight by the Acupuncture Board. This is
patently unreasonable. But even if that was the Legislature’s intent, the Legislature
failed to accomplish this purpose. Nothing in the Chiropractic Chapter authorizes
the Chiropractic Board to use a definition in another chapter of the Occupations
Code to evade the plain limitations of its scope of practice statute. And there is no
authority supporting that a regulatory body may exempt its licensees from
obtaining a license to perform a medical profession regulated by another state
board.
There are several reasons the Chiropractic Board’s novel theory fails. First,
chiropractors and the public would be precluded from determining the “real” scope
of chiropractic by consulting the Chiropractic Chapter. Instead, they would be
required to review the entire Occupations Code—and guess which parts also apply
to chiropractic. And it would not be enough to read the Occupations Code. As
discussed in the next section, because the Chiropractic Board primarily relies on
legislative debate in the enactment of Senate Bill 361 to support its unreasonable
interpretation, a person would also need to review legislative history, including
legislative debate, to glean what “chiropractic” actually is.
Second, condoning one of the Chiropractic Board’s many attempts at
statutory manipulation would defeat an important purpose of occupational
35
statutes—to put the public on notice of the permissible scope of a professional’s
practice and to protect the integrity of medical professions. Chiropractors are
prohibited from claiming to practice a profession they are not licensed to practice.
In Brooks v. Texas Medical Board, the Court recently concluded that because a
chiropractor’s website suggested that her practice was not limited to the evaluation
of the biomechanical condition of the spine and musculoskeletal system (i.e., the
practice of chiropractic), she was engaging in the unlicensed practice of medicine.
No. 03-14-00239-CV, 2015 WL 3827327, at *1, 5 (Tex. App.—Austin June 18,
2015, no pet. h.). In so holding, the Court adopted the Medical Board’s rationale
that “the lay public would be confused about the scope of her practice if she
omitted words defining chiropractic treatment, such as ‘spinal’ or
‘musculoskeletal,’ from her website.” Id. at *4.
The same rationale applies here. If a chiropractor cannot advertise that he
performs a procedure that is not truly “chiropractic,” then surely a chiropractor
cannot perform the procedure without a license from the agency that regulates the
procedure. See Tex. State Bd. of Public Accountancy v. Fulcher, 515 S.W.2d 950,
954 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d n.r.e.) (statutes regulating
the practice of professions are necessary to ensure practitioners possess the
“requisite degree of skill in learning in professions which affect the public” to
protect the public “against fraud [and] deception as the consequence of ignorance
36
and incompetence”). The Court should not sanction the Chiropractic Board’s fast
and loose interpretation of the Chiropractic and Acupuncture Chapters, nor allow
the Board to devalue the profession of acupuncture in this manner.
b. Legislative history supports that the amendment to the
definition of acupuncture in the Acupuncture Chapter did
not grant the Chiropractic Board the authority to regulate
acupuncture.
To support its stance that the amendment to the definition of acupuncture in
the Acupuncture Chapter was intended to allow chiropractors to practice
acupuncture without a license from or oversight by the Acupuncture Board, the
Chiropractic Board has heavily relied on comments made by an individual
legislator (Representative Gray) in committee during Senate Bill 361’s debate. The
Court should not be persuaded.
It is well-established that comments and testimony by members of the
Legislature do not evince legislative intent. As the Texas Supreme Court has
repeatedly counseled, “a single statement by a single legislator does not evidence
legislative intent and does not determine legislative intent.” Robinson v. Crown
Cork & Seal Co., Inc., 335 S.W.3d 126, 191-92 (Tex. 2010); see also AT&T
Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co., 186 S.W.3d 528-29 (Tex. 2006). “The
Legislature does not speak through individuals—even its members—in committee
hearings, in bill analyses and reports, in legislative debate, or in pre- and post-
enactment commentary; it speaks through its enactments.” Entergy Gulf States,
37
Inc. v. Summers, 282 S.W.3d 433, 447 (Tex. 2009) (Hecht, J., concurring). Further,
it is inappropriate to look to legislative history when statutory text is unambiguous.
City of Round Rock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013).
Regardless, legislative history, including Representative Gray’s comments,
nonetheless counsels the opposite of what the Chiropractic Board asserts. The
Legislature has repeatedly declined to enact legislation authorizing chiropractors to
practice acupuncture under regulation by the Chiropractic Board. Before 1995, the
Chiropractic Chapter did not expressly prohibit chiropractors from performing
procedures involving needles, leading to disputes about whether those sorts of
practices were within the statutory scope of chiropractic. See Tex. Med. Ass’n, 375
S.W.3d at 469. To resolve those disputes, in 1995, the Legislature amended the
Chiropractic Chapter to explicitly prohibit chiropractors from performing “incisive,
surgical” procedures (with the exception of using needles for diagnostic blood
draws). See id. The impetus of this change was a floor amendment offered by
Representative Uher that contained the current limitation on nonincisive
procedures, but with broad exceptions for needle use, including for acupuncture
and needle EMG. Id. n.7. His amendment, however, was amended by
Representative Janek to strip these exceptions from the bill, leaving the narrow
exception for diagnostic blood draws. Id. When presenting this amendment,
Representative Janek stated that “[t]his amendment would take out any ability by
38
the chiropractors to put needles into people.” Id. Representative Uher’s amendment
was ultimately adopted, but as circumscribed by Representative Janek’s
amendment.
The next session, Representative Gray attempted to amend Senate Bill 361
(the Acupuncture Board’s sunset bill) to expressly authorize chiropractors to
practice acupuncture, but these amendments were stripped from the bill before
47
enactment because they were not germane. Instead, as ultimately enacted, the
Acupuncture Chapter was amended to define acupuncture as “nonincisive.” See
Act of May 29, 1997, 75th Leg., R.S., ch. 1170, § 1. Since Senate Bill 361’s
enactment, there has been further attempt to amend the Chiropractic Chapter to
authorize chiropractors to practice acupuncture under regulation by the
Chiropractic Board—and this legislation also failed to pass. See Tex. S.B. 1601,
82nd Leg., R.S. (2011).
Thus, the Legislature has repeatedly rejected attempts to amend the
Chiropractic Chapter to include acupuncture within the scope of chiropractic, and
“[n]o court could justify putting into a statute by implication what both Houses of
the Legislature had expressly rejected by decisive votes.” Grasso v. Cannon Ball
Motor Freight Lines, 81 S.W.2d 482, 485 (Tex. Com. App. 1935); see also Tex.
47
See supra, pp. 9-10.
39
Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 23 (Tex. 1996)
(“courts should decline to infer a limitation in a statute that the Legislature has
explicitly rejected”); Transp. Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex. 1979)
(“Courts should be slow to put back that which the Legislature has rejected.”).
Further, Representative Gray’s proposed amendments to the Chiropractic
Chapter in Senate Bill 361 to authorize chiropractors to practice acupuncture
without a license from the Acupuncture Board were stricken on points of order
because the amendments were not germane to the subject of the bill. The
Legislature’s germaneness rules mirror the Texas Constitution’s prohibition on
legislation containing more than one subject. Compare, e.g., Texas House Rules
for the 84th Legislature, Rule 4, § 41, and Rule 11, § 2, with TEX. CONST. art. III,
§ 35(a). As explained in Part II.B below, the fact that the Legislature could not
constitutionally authorize chiropractors to practice acupuncture in the Acupuncture
Board’s sunset bill negates any argument that the sunset bill’s change in the
definition of acupuncture impacted the practice of acupuncture by chiropractors.
“The Legislature cannot do by indirection what it cannot do directly.” See West
40
Orange-Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W.3d 558, 600 (Tex. 2003)
(quoting Jernigan v. Finley, 38 S.W. 24, 26 (Tex. 1896)). 48
Finally, Representative Gray’s statements that the Chiropractic Board has
relied on for support actually undermine the Board’s argument. Representative
Gray acknowledged during committee debate on Senate Bill 361 that amending the
definition of acupuncture in the Acupuncture Chapter would not enable
chiropractors to practice acupuncture without a license from the Acupuncture
Board. She explained that:
The Senate bill included language that put [the practice of
acupuncture by chiropractors] under the Acupuncture Board. … What
the [House’s] amendments would do is put [the practice of
acupuncture by chiropractors] under the Chiropractic Board but with
certain guidelines. … [An amendment authorizing chiropractors to
practice acupuncture] needs to be in the practice act as it relates to
chiropractors and not [ ] under the Board of Acupuncture
49
Examiners.
48
The Chiropractic Board’s counsel stated at the summary judgment hearing that the
Chiropractic Board’s position is that Senate Bill 361 authorized chiropractors to practice
acupuncture without a license through the “back door” because “it was not as easy, politically” to
directly authorize them to do so. RR 40.
49
CR 478-80, 483.
41
Thus, post-Senate Bill 361, chiropractors practicing acupuncture must still obtain a
license from the Acupuncture Board and remain within the oversight of that
agency. 50
c. The Court should decline to read the Acupuncture Chapter
and Chiropractic Chapter in pari materia to create an
exemption for acupuncture in the Chiropractic Chapter.
The Chiropractic Board has also attempted to utilize the doctrine of “in pari
materia” to justify using the definition of acupuncture in the Acupuncture Chapter
to inform the scope of the practice of chiropractic in the Chiropractic Chapter.
Extrinsic tools of statutory construction are not available when a statute is
unambiguous. Greater Houston P’ship, 2015 WL 3978138, at 5. But even if the
Court believes the relevant statutes are ambiguous, the Court should decline to use
this tool.
First, the doctrine of in pari materia is inapplicable. Texas Government
Code, Section 311.026(b) codified this common-law doctrine, and the statute only
applies if a conflict between statutes is irreconcilable. Abbott, 391 S.W.3d at 348.
While it is true that courts read conflicting statutes together to harmonize them,
there is no conflict here. See Rodriguez v. Tex. Workforce Comm’n, 986 S.W.2d
781, 783 (Tex. App.—Corpus Christi 1999, pet. denied). One does not need to read
50
Indeed, there are chiropractors who are dually licensed by the Chiropractic and Acupuncture
Boards and therefore lawfully practice acupuncture.
42
the Acupuncture Chapter to determine the scope of chiropractic since that scope is
found solely in the Chiropractic Chapter. Thus, not only are the two chapters not
“irreconcilable,” there is no conflict at all because each chapter discreetly applies
to a different profession.
Second, for two statutes that do not reference each other to be in pari
materia, they must have been enacted with the same object or purpose in mind.
See, e.g., Nat’l Media Corp. v. City of Austin, No. 03-12-00188-CV, 2014 WL
4364815, at *2 (Tex. App.—Austin Aug. 27, 2014, no pet.); Abbott, 391 S.W.3d at
348; Howlett v. Tarrant Cnty., 301 S.W.3d 840, 846 (Tex. App.—Fort Worth
2009, pet. denied). “The adventitious occurrence of like or similar phrases, or even
of similar subject matters, in laws enacted for wholly different ends will not justify
applying the doctrine.” Abbott, 391 S.W.3d at 349; see also In re JMR, 149 S.W.3d
239, 292 (Tex. App.—Austin 2004, no pet.). To determine whether two statutes
share a common purpose, courts must consider whether the statutes were clearly
written to achieve the same objectives. See In re JMR, 149 S.W.3d at 292-94
(emphasis added); Abbott, 391 S.W.3d at 350. And if two statutes were enacted
“many years apart for different purposes and objectives,” they are not to be read in
pari materia. DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 410 (Tex. App.—
Dallas 2010, pet. denied).
43
Based on these principles, this Court has refused to read in pari materia
separate statutory or regulatory provisions that do not clearly share the same
purpose. See In re JMR, 149 S.W.3d at 294 (trespass statute in the Penal Code and
trespass statute in the Education Code could not be read in pari materia because
one was intended to protect a property interest while the other was intended to
protect the safety of those on school grounds); National Media Corp., 2014 WL
4364815, at *1-2 (City’s Zoning Code and Sign Regulations Code could not be
read in pari materia since they did not touch on the same subject, have the same
purpose, or relate to the same objective); Abbott, 391 S.W.3d at 347-49 (statutory
provisions regarding patient confidentiality did not share the same purpose as
provisions concerning the confidentiality of Chiropractic Board investigations and
so could not be read in pari materia).
As in these cases, the legislation limiting chiropractic to “nonincisive”
procedures, and the later legislation limiting acupuncture to “nonincisive” needle
insertion, did not share the same object or purpose, nor were they enacted during
the same legislative session. To the contrary, the legislation limiting chiropractic to
nonincisive procedures (except for diagnostic blood draws) was enacted to prohibit
chiropractors from performing procedures involving needles. See Tex. Med. Ass’n,
375 S.W.3d at 469 n.7, 477-78. The legislation limiting acupuncture to the
nonincisive insertion of an acupuncture needle was enacted as part of the
44
Acupuncture Board’s sunset bill—not as part of any legislation concerning
chiropractic. The Chiropractic Board may not apply an amendment to the
Acupuncture Chapter to end-run the Chiropractic Chapter’s prohibition against
needle use.
D. The Chiropractic Board’s interpretation of the Acupuncture Chapter is
entitled to no deference because the Chiropractic Board’s expertise is
chiropractic, not acupuncture.
Because the Chiropractic Board’s expertise is chiropractic (not acupuncture),
its interpretation of the Acupuncture Chapter is entitled to no deference. Rogers,
390 S.W.3d at 384. To defer to the Chiropractic Board’s construction would be
akin to deferring to a conclusion by the Acupuncture Board that acupuncturists
may practice nursing or physical therapy without a license from the relevant
occupational board or the intensive education and training required for the practice.
Further, notably, the agencies that do possess expertise about the scope of the
practice of acupuncture—the Acupuncture Board and the Texas Medical Board
(which oversees the Acupuncture Board)—believe that the Acupuncture Chapter
does not broaden the scope of the practice of chiropractic to include acupuncture.
See Tex. Med. Ass’n, 375 S.W.3d at 477-78. 51 If the Court is going to grant
deference, it should defer to those agencies, not the Chiropractic Board.
51
See also CR 401-02, 408-13, 762-64. The Attorney General declined to accept the
Acupuncture Board’s 2013 request for opinion due to the Texas Medical Association litigation.
45
E. The Chiropractic Board’s rules are invalid because they impermissibly
allow chiropractors to practice acupuncture in violation of the
Acupuncture Chapter.
The Chiropractic Board’s rules are also invalid because they unlawfully
authorize chiropractors to practice acupuncture in violation of the Acupuncture
Chapter. To practice acupuncture, a person must hold a license issued by the
Acupuncture Board. See TEX. OCC. CODE § 205.201. The Acupuncture Chapter
specifically mandates that “a person may not practice acupuncture in this state
unless the person holds a license to practice acupuncture issued by the acupuncture
board under this chapter.” Id. § 205.201 (emphasis added). The only exception is
for healthcare professionals licensed under another statute of this state and acting
within the scope of the license. See id. § 205.003(a) (emphasis added).
Thus, the only way a chiropractor is exempt from the requirements of the
Acupuncture Chapter is if the chiropractor is practicing within the scope of
chiropractic as defined in the chiropractor’s licensing statute: the Chiropractic
Chapter. Under the express terms of the Chiropractic Chapter, chiropractors are
prohibited from performing procedures involving needles, save for diagnostic
blood draws, and are limited to treating the musculoskeletal portion of the body.
See id. § 201.002. Within the scope of their licensing statute, chiropractors may not
practice acupuncture—which by its statutory definition requires the use of needles
and treats the entire body. Id. § 205.001(2).
46
F. The rules are invalid because they authorize chiropractors to engage in
the unauthorized practice of medicine.
The Chiropractic Board’s rules also authorize chiropractors to engage in the
unauthorized practice of medicine. Historically, only physicians could perform
most medical procedures, including chiropractic and acupuncture. See Thompson v.
Tex. State Bd. of Med. Exam’rs, 570 S.W.2d 123, 130 (Tex. App.—Tyler 1978,
writ refused n.r.e.); Teem v. State, 183 S.W. 1144, 1147-48 (Tex. Crim. App.
1916). Over time, the Legislature exempted various healthcare professionals,
including chiropractors, from adhering to the requirements of the Medical Practice
Act. But the Legislature has never severed the practice of acupuncture from its
historical roots as a practice of medicine under the authority of the Texas Medical
Board. See, e.g., Andrews, 498 F. Supp. at 1039-40. As a result, acupuncturists
continue to be subject to the supervision of the Texas Medical Board, though with
separate licensing requirements, and are not fully excluded from the scope of the
Medical Practice Act. See, e.g., TEX. OCC. CODE §§ 151.052, 205.101. Other states
similarly have historically considered acupuncture to constitute the practice of
medicine. See, e.g., People v. Roos, 514 N.E.2d 993, 996 (Ill. 1987). And many
courts—including in Texas—have held that a chiropractor’s practice of
acupuncture constitutes the unauthorized practice of medicine. See Kelley v.
Raguckas, 270 N.W.2d 665, 625-26 (Mich. App. 1978); Schatzberg, 371 A.2d at
46-47; State v. Rich, 339 N.E.2d 630, 197 (Ohio 1975); State v. Won, 528 P.2d
47
594, 595-96 (Ore. App. 1974); Ex parte Halsted, 182 S.W.2d 479, 485 (Tex. Crim.
App. 1944).
The Medical Practice Act excludes chiropractors from its scope and
requirements, but only to the extent chiropractors are engaged strictly in the
practice of chiropractic. See TEX. OCC. CODE §§ 151.002(13), 151.052; Tex.
Orthopaedic Ass’n, 254 S.W.3d at 717. “When engaged strictly in the practice of
chiropractic as defined by law, a licensed chiropractor is not engaging in the
unlicensed practice of medicine. But to the extent that a chiropractor exceeds the
statutory scope of chiropractic, she would subject herself to the Medical Practice
Act—and practice medicine unlawfully.” Brooks, 2015 WL 3827327, at *2.
This Court has refused to allow an occupational board to adopt rules that
have the effect of allowing non-physician healthcare professionals to engage in the
unauthorized practice of medicine. For example, in Texas Orthopaedic
Association, the Court concluded that a rule adopted by the Texas State Board of
Podiatric Medical Examiners exceeded the statutory scope of podiatry because it
allowed podiatrists to treat parts of the body above the foot that were outside the
scope of podiatry training. Id. at 721. Consequently, the Court held that the rule
authorized podiatrists to engage in the unauthorized practice of medicine because
they were treating parts of the body “outside the traditional scope of podiatry
without satisfying the requirements of the Medical Practice Act.” Id. The rule
48
exceeded the limited exemption from the Medical Practice Act by allowing
podiatrists to engage in acts that were not strictly the practice of podiatry. Id.
Similarly, the Court has concluded that chiropractors were engaged in the
unauthorized practice of medicine by performing needle EMG, see Tex. Med.
Ass’n, 375 S.W.3d at 497, and by claiming to treat medical conditions like autism
that are not limited to the biomechanical condition of the spine or musculoskeletal
system, Brooks, 2015 WL 3827327, at *1, 5. The rules challenged in this lawsuit
likewise authorize chiropractors to engage in a practice that is not strictly the
practice of chiropractic and therefore are beyond the limited exception granted to
them by the Medical Practice Act.
For all of these reasons, the Chiropractic Board’s rules authorizing
chiropractors to practice acupuncture are invalid. The Court should reverse and
render judgment for the Association.
II.
Alternatively, the statutory scheme purportedly authorizing
chiropractors to practice acupuncture violates the Texas
Constitution because the Legislature may not favor one school of
medicine over another nor enact legislation containing more than
one subject.
In the alternative, the Association requests that the Court reverse and render
judgment for the Association and declare that (1) the statutory scheme purportedly
authorizing chiropractors to practice acupuncture with significantly less education
49
or training in acupuncture than acupuncturists is invalid in violation of Texas
Constitution, Article XVI, Section 31; and (2) Senate Bill 361 violated the one-
subject rule in Texas Constitution, Article III, Section 35(a). See TEX. CIV. PRAC.
& REM. CODE §§ 37.004, 37.006; Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618,
622 (Tex. 2011) (per curiam).
A. The statutory scheme purportedly authorizing chiropractors to practice
acupuncture with significantly less education and training in
acupuncture than licensed acupuncturists violates Texas Constitution,
Article XVI, Section 31.
The Texas Constitution broadly states: “The Legislature may pass laws
prescribing the qualifications of practitioners of medicine in this State, and to
punish persons for mal-practice, but no preference shall ever be given by law to
any schools of medicine.” See TEX. CONST. art. XVI, § 31 (emphasis added).
Texas courts have interpreted this provision to prohibit the Legislature from
unfairly and arbitrarily “preferring” one branch of medicine over another by
allowing one category of healthcare professionals to obtain licenses with less
burdensome conditions. See, e.g., Schlichting v. Tex. State Bd. of Medical Exam.,
310 S.W.2d 557, 564 (Tex. 1958); Wilson v. State Bd. of Naturopathic Examiners,
298 S.W.2d 946, 948-50 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.).
In Schlichting, the Texas Supreme Court held that to allow one school of
medicine to be licensed on easier terms than those required for a similar practice of
medicine would violate article XVI, section 31. Id. at 564. And the violation is
50
even more obvious when one group is allowed to practice without any license at
all, while practitioners of a similar form of medicine must be licensed on onerous
conditions. Id.; see also Wilson, 298 S.W.2d at 949-50.
Indeed, the Court of Criminal Appeals has held that a broad interpretation of
the scope of chiropractic would violate this provision of the Constitution. The
Court considered the chiropractic statute in effect at that time and concluded:
Assuming, then, that under the Act before us, the Legislature has set
up, recognized, and defined chiropractic as a system, means, and
method for the treatment of diseases and disorders of the human body,
and that practitioners thereof are authorized to treat, by chiropractic,
patients for diseases and disorders, it is evident that the Legislature
has preferred such science and such practitioners over all others
engaged in doing the same thing, that is, in treating the human body
for diseases and disorders, because the chiropractor is not required
to have the same educational qualifications, nor is he required, as a
condition precedent to his right to so treat patients, to pass a
satisfactory examination upon the same subjects that are required of
all others similarly situated.
Ex parte Halsted, 182 SW.2d at 487 (emphasis added).
Of course, as the Chiropractic Board argued at the trial court, this
constitutional provision is not applicable when chiropractors are strictly practicing
chiropractic because they are then not “practicing medicine.” TEX. OCC. CODE §§
151.002(13), 151.052; George D. Braden et al., The Constitution of the State of
Texas: An Annotated and Comparative Analysis, at 768 (1977). But if a
chiropractor does not practice in this strict manner, she is not only engaged in the
51
practice of medicine, but the unauthorized practice of medicine. See, e.g., Tex.
52
Orthopaedic Ass’n, 254 S.W.3d at 717, 721.
Here, the Acupuncture Chapter requires acupuncturists to complete
significant education and training in acupuncture in order to practice the procedure.
See TEX. OCC. CODE §§ 205.203, .206, .255. In contrast, if the Legislature has
allowed chiropractors to practice acupuncture, it has done so without requiring
them to complete any education or training in acupuncture. Under this statutory
scheme, the Legislature unconstitutionally prefers chiropractic over acupuncture.
B. The legislation that purportedly authorized chiropractors to practice
acupuncture violates the one-subject rule in Texas Constitution, Article
III, Section 35(a).
The Texas Constitution prohibits the Legislature from enacting a bill that
contains more than one subject. TEX. CONST. art. III, § 35(a). For a bill to pass
muster, its provisions must relate, directly or indirectly, to the same subject and
have a mutual connection. LeCroy v. Hanlon, 713 S.W.2d 335, 337 (Tex. 1986);
Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 601 (Tex. 1976); C. Hayman
Constr. Co. v. Am. Indem. Co., 471 S.W.2d 564, 566 (Tex. 1971). In other words,
to be valid, a provision must be germane to the subject of the bill. Jessen Assocs.,
52
As explained previously, acupuncture treats any condition in the entire body and is not
expressly severed from the Medical Practice Act as a practice of medicine, and the Acupuncture
Board operates under the supervision of the Texas Medical Board. See, e.g., TEX. OCC. CODE
§§ 151.052, 205.001(2), .101; Andrews, 498 F. Supp. at 1039-40.
52
531 S.W.2d at 601. As specific to amendments to a bill, to be germane, the subject
matter of an amendment must be reasonably related to the content of the original
act. Sommermeyer v. State, 713 S.W.2d 183, 184-85 (Tex. App.—Houston [14th
Dist.] 1986, pet. ref’d). The policy reason behind the one-subject rule is:
[I]f the provisions of the law or section to be amended involve a
subject different from that actually dealt with in the body of the
amending act, a reading of the former will not disclose to the reader
the true subject of the amending act but, on the contrary, will mislead
him as to the latter.
Bd. of Water Eng’gs v. City of San Antonio, 283 S.W.2d 722, 727 (Tex. 1955).
Senate Bill 361 was the Acupuncture Board’s sunset bill. It related to the
Acupuncture Board’s continuation and functions, as plainly indicated from the
bill’s caption and its content. If the bill additionally expanded the scope of the
practice of chiropractic, it violated the one-subject rule because it embraced two
subjects: the continuation and function of the Acupuncture Board and the statutory
scope of the practice of chiropractic.
During Senate Bill 361’s journey through the Legislature, the bill amended
the Chiropractic Chapter’s scope of practice provision to authorize chiropractors to
practice acupuncture. See Part I.C.2.b, supra. But on the House floor, those
provisions were challenged and ultimately struck from the bill on germaneness
grounds because the chiropractic scope of practice has no relationship or
connection to the functions of the Acupuncture Board. The Legislature could not
53
have expressly authorized chiropractors to practice acupuncture without violating
the one-subject rule—and it cannot do indirectly what it could not do directly. West
Orange-Cove, 107 S.W.3d at 600. Thus, if the amendment to the Acupuncture
Chapter authorizes chiropractors to practice acupuncture, it rendered that portion of
the bill unconstitutional.
III.
The Chiropractic Board’s statute of limitations defense fails as a
matter of law.
In its summary judgment motion, the Chiropractic Board urged that the
Association’s challenge is time-barred under the residual statute of limitations
found in the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.
CODE § 16.051. But as the Chiropractic Board acknowledged, no court has applied
the residual statute of limitations to a declaratory judgment action challenging the
validity of agency rules. Adopting the Chiropractic Board’s novel argument would
be a sea change in how Texas courts resolve allegations that an agency is
overstepping its statutory authority. And it would thwart the very purpose of the
statutory scheme the Chiropractic Board seeks to continue to violate.
The Chiropractic Board urges that because it has for more than four years
illegally authorized chiropractors to practice acupuncture, it can continue to exceed
its statutory authority and violate Texas law, daily and with impunity. This is not
the law in Texas. In 2012, in Texas Medical Association, this Court invalidated the
54
Chiropractic Board’s rules allowing chiropractors to perform needle EMG and
MUA—despite that the Chiropractic Board had been authorizing chiropractors to
53
practice needle EMG and MUA since at least the 1980s. 375 S.W.3d at 469, 481,
488. Likewise, in Texas Association of Psychological Associates v. Texas State
Board for Examiners of Psychologists, the Court reviewed whether the Psychology
Board’s rules exceeded its statutory authority—despite that the challenged rules
had been adopted more than four years earlier. 439 S.W.3d 597, 600-02 (Tex.
App.—Austin 2014, no pet.). And in Texas State Board of Examiners of Marriage
& Family Therapists v. Texas Medical Association, the Court reviewed and
affirmed a trial court judgment invalidating a rule that had been adopted in 1994.
458 S.W.3d 552, 554 (Tex. App.—Austin 2014, pet. filed).
The residual statute of limitations should not be applied as urged by the
Chiropractic Board because limitations cannot be used to defeat the legislative
intent of a statute. See Heine v. Tex. Dept. of Pub. Safety, 92 S.W.3d 642, 648-49
(Tex. App.—Austin 2002, pet. denied). The Legislature enacted the statutes
regulating the various healthcare professions, including acupuncture and
chiropractic, to protect the public. To ensure practitioners possess the “requisite
53
As the Sunset Commission observed in making recommendations regarding the Chiropractic
Board, the Chiropractic Board evaded rule challenges and obtaining stakeholder input by issuing
“opinions” that operated as de facto rules rather than adopting rules through the statutorily
required process. See CR 574-80. These opinions authorized MUA, needle EMG, and
acupuncture. Id.
55
degree of skill in learning in [these] professions which affect the public,” the
Legislature mandates that individuals complete specified training, obtain a license,
and be overseen by the governing board for each specific healthcare profession.
See Tex. State Bd. of Public Accountancy, 515 S.W.2d at 954. This is essential for
healthcare professions because, absent adequate training, the very life and safety of
the public are at stake. See, e.g., Tex. State Bd. of Barber Exam’rs, 454 S.W.2d at
731.
The Chiropractic Board’s limitations argument seeks to erase the protections
afforded by the Acupuncture Chapter. The Chiropractic Board argues that because
it has, for years, illegally allowed chiropractors to practice acupuncture with little
to none of the training hours required for acupuncturists, without a license from the
Acupuncture Board, and without oversight from any board, it should be allowed to
continue to do so into perpetuity—putting countless additional patients at risk of
being deceived about the qualifications of their practitioners, subject to
incompetent and ineffective treatment or, worse, harmed. The protective intent of
the Legislature in enacting the Acupuncture Chapter “should not be thwarted” by
applying Section 16.051 so as to give the Chiropractic Board a free pass to
continue violating Texas law. Heine, 92 S.W.3d at 649.
Moreover, even if the Court concludes that the four-year residual statute of
limitations in Section 16.051 does govern challenges to an agency’s authority to
56
adopt and enforce administrative rules, there are at least three reasons why this
Court should hold that the Association’s claims for declaratory and injunctive
relief are not time-barred. First, the Chiropractic Board is incorrect that the “most
recent action of the Chiropractic Board relevant to the lawsuit became four years
old on July 2, 2013.” To the contrary, in 2013, the Board adopted amended
versions of both of the challenged rules as specifically related to needle use and the
practice of acupuncture by chiropractors (then Rules 75.17 and 75.21); in January
2015, during this lawsuit, the Chiropractic Board again amended the Rules,
renumbering them as Rules 78.13 and 78.14. When an agency promulgates a new
version of a rule, any limitations period begins anew and a court has authority to
review the entire amended rule (not just specifically amended subparts of the rule).
54
See State Office of Pub. Util. Counsel, 131 S.W.3d at 321. Thus, the
Association’s challenge to the amended rules would not be time-barred until 2019.
Second, equally important is what the Chiropractic Board failed to amend in
2013 and 2015. In 2012, in Texas Medical Association, the Court upheld the trial
court’s decision invalidating the entirety of Rule 75.17(a)(3). See 375 S.W.3d at
481. But when the Chiropractic Board thereafter amended that rule, it did not
amend the portion of the rule that continues to allow needle-use by chiropractors.
54
This case concerned a limitation provision in the Public Utility Regulatory Act, not the
residual limitations statute. See id. But the same reasoning is applicable here.
57
And the Chiropractic Board did not amend the related Rules 75.17(b)(4),
75.17(e)(2)(C), and 75.21 (now Rules 78.13(a)(4), (b)(2), (e)(2)(C), 78.14, and
78.15(a)(1), (b)(1)(A), (b)(2)(A)), even though the court invalidated rules
permitting chiropractors to use needles. “A cause of action accrues and the
applicable limitations period begins to run when a wrongful act causes some legal
injury.” Nw. Austin Municipal Util. Dist. No. 1 v. City of Austin, 274 S.W.3d 820,
836-37 (Tex. App.—Austin 2008, pet. denied). The Chiropractic Board’s failure in
2013 and 2015 to bring its rules within this Court’s precedent constituted an
additional wrongful act that created a new controversy between the Chiropractic
Board and the Association. Thus, for this additional reason, the Association’s
claims would not be time-barred until 2019.
Third, the residual statute of limitations in section 16.051 does not bar the
Association’s challenge that the Chiropractic Board’s rules are a continuing and
ongoing violation of state law. Id. at 836. The Board did not just authorize
chiropractors to practice acupuncture (without adequate training, a license from the
Acupuncture Board, or oversight) at some distant time in the past—it continues to
do so every day. Until the Chiropractic Board’s rules are amended or repealed, the
Board violates state law every day, “caus[ing] the accrual of the cause of action to
occur each day.” Dvorken v. Lone Star Indus., Inc., 740 S.W.2d 565, 567 (Tex.
App.—Fort Worth 1987, no writ). While Section 16.051 may bar the Association
58
from seeking damages that accrued more than four years ago, it does not bar this
suit to determine if the challenged rules are currently in violation of Texas law.
Nw. Austin Municipal Util. Dist. No. 1, 274 S.W.3d at 837. Thus, the Association’s
challenge to the continuing violation is not time-barred.
For each of these reasons, the Court should conclude that, if the trial court
granted summary judgment on the Chiropractic Board’s affirmative defense of
limitations, it erred.
PRAYER
The Texas Association of Acupuncture and Oriental Medicine prays that the
Court:
(1) reverse the trial court’s judgment, render judgment for the
Association, and declare invalid and enjoin 22 Texas
Administrative Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14
(previously §§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21));
(2) alternatively, reverse the trial court’s judgment, render judgment
for the Association, and declare that the statutory scheme created
by Senate Bill 361’s amendment to the Acupuncture Chapter is
unconstitutional because the Legislature may not favor one
school of medicine over another nor enact legislation containing
more than one subject; or
(3) in the further alternative, if the Court believes any fact issue
precludes rendition of judgment, reverse the trial court’s
judgment and remand for a new trial.
The Association further prays for any other relief to which it may be entitled.
59
Respectfully submitted,
By: /s/ Craig T. Enoch
Craig T. Enoch
Texas Bar No. 00000026
cenoch@enochkever.com
Melissa A. Lorber
Texas Bar No. 24032969
mlorber@enochkever.com
Shelby O'Brien
Texas Bar No. 24037203
sobrien@enochkever.com
ENOCH KEVER PLLC
600 Congress Avenue
Suite 2800
Austin, Texas 78701
512.615.1200 Telephone
512.615.1198 Fax
Attorneys for Texas Association of Acupuncture
and Oriental Medicine
60
CERTIFICATE OF COMPLIANCE
Appellant certifies that this Brief of Appellant (when excluding the caption,
identity of parties and counsel, table of contents, index of authorities, statement of
the case, statement of issues presented, signature, proof of service, certificate of
compliance, and appendix) contains 13,517 words.
/s/ Craig T. Enoch
Craig T. Enoch
CERTIFICATE OF SERVICE
I hereby certify that, on August 10, 2015, the foregoing Brief of Appellant
Texas Association of Acupuncture and Oriental Medicine was served via
electronic service on the following:
Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov
/s/ Craig T. Enoch
Craig T. Enoch
61
No. 3-15-00262-CV
In the Court of Appeals
Third District of Texas — Austin
TEXAS ASSOCIATION OF ACUPUNCTURE
AND ORIENTAL MEDICINE,
Appellant,
v.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE
YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY,
Appellees.
On Appeal from 201st District Court, Travis County, Texas
Cause No. D-1-GN-14-000355
APPENDIX
A. Trial Court’s Judgment
B. 22 Texas Administrative Code §§ 78.13-78.15
C. Texas Occupations Code, Chapter 201
D. Texas Occupations Code, Chapter 205
E. 22 Texas Administrative Code §§ 183.2, 183.4, 183.20
F. Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Bd., 375 S.W.3d 464 (Tex.
App.—Austin 2012, pet. denied)
62
APPENDIX A
Appendix A to Brief of Appellant Page 1 of 2
Appendix A to Brief of Appellant Page 2 of 2
APPENDIX B
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<<Prev Rule Next Rule>>
TITLE 22 EXAMINING BOARDS
PART 3 TEXAS BOARD OF CHIROPRACTIC EXAMINERS
CHAPTER 78 RULES OF PRACTICE
RULE §78.13 Scope of Practice
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings,
unless the context clearly indicates otherwise:
(1) Board--The Texas Board of Chiropractic Examiners.
(2) CPT Codebook--The American Medical Association's annual Current Procedural Terminology
Codebook (2004). The CPT Codebook has been adopted by the Centers for Medicare and Medicaid Services
of the United States Department of Health and Human Services as Level I of the common procedure coding
system.
(3) Cosmetic treatment--A treatment that is primarily intended by the licensee to address the outward
appearance of a patient.
(4) Incision--A cut or a surgical wound; also, a division of the soft parts made with a knife or hot laser.
(5) Musculoskeletal system--The system of muscles and tendons and ligaments and bones and joints and
associated tissues and nerves that move the body and maintain its form.
(6) On-site--The presence of a licensed chiropractor in the clinic, but not necessarily in the room, while a
patient is undergoing an examination or treatment procedure or service.
(7) Practice of chiropractic--The description and terms set forth under Texas Occupations Code §201.002,
relating to the practice of chiropractic.
(8) Subluxation--A lesion or dysfunction in a joint or motion segment in which alignment, movement
integrity and/or physiological function are altered, although contact between joint surfaces remains intact. It
is essentially a functional entity, which may influence biomechanical and neural integrity.
(9) Subluxation complex--A neuromusculoskeletal condition that involves an aberrant relationship between
two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in
the biomechanical and/or neuro-physiological reflections of these articular structures, their proximal
structures, and/or other body systems that may be directly or indirectly affected by them.
(b) Aspects of Practice.
(1) A person practices chiropractic if they:
(A) use objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the
spine and musculoskeletal system of the human body; or
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(B) perform nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the
subluxation complex or the biomechanics of the musculoskeletal system.
(2) Needles may be used in the practice of chiropractic under standards set forth by the Board but may not
be used for procedures that are incisive or surgical.
(3) This section does not apply to:
(A) a health care professional licensed under another statute of this state and acting within the scope of
their license; or
(B) any other activity not regulated by state or federal law.
(c) Examination and Evaluation.
(1) In the practice of Chiropractic, licensees of this board provide necessary examination and evaluation
services to:
(A) Determine the bio-mechanical condition of the spine and musculoskeletal system of the human body
including, but not limited to, the following:
(i) the health and integrity of the structures of the system;
(ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of the
system;
(iii) the existence of the structural pathology, functional pathology or other abnormality of the system;
(iv) the nature, severity, complicating factors and effects of said structural pathology, functional
pathology or other abnormality of the system;
(v) the etiology of said structural pathology, functional pathology or other abnormality of the system; and
(vi) the effect of said structural pathology, functional pathology or other abnormality of the system on
the health of an individual patient or population of patients;
(B) Determine the existence of subluxation complexes of the spine and musculoskeletal system of the
human body and to evaluate their condition including, but not limited to:
(i) The nature, severity, complicating factors and effects of said subluxation complexes;
(ii) the etiology of said subluxation complexes; and
(iii) The effect of said subluxation complexes on the health of an individual patient or population of
patients;
(C) Determine the treatment procedures that are indicated in the therapeutic care of a patient or condition;
(D) Determine the treatment procedures that are contra-indicated in the therapeutic care of a patient or
condition; and
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(E) Differentiate a patient or condition for which chiropractic treatment is appropriate from a patient or
condition that is in need of care from a medical or other class of provider.
(2) To evaluate and examine individual patients or patient populations, licensees of this board are
authorized to use:
(A) physical examinations;
(B) diagnostic imaging;
(C) laboratory examination;
(D) electro-diagnostic testing, other than an incisive procedure;
(E) sonography; and
(F) other forms of testing and measurement.
(3) Examination and evaluation services which require a license holder to obtain additional training or
certification, in addition to the requirements of a basic chiropractic license, include:
(A) Performance of radiologic procedures, which are authorized under the Texas Chiropractic Act, Texas
Occupations Code, Chapter 201, may be delegated to an assistant who meets the training requirements set
forth under §78.1 of this title (relating to Registration of Chiropractic Radiologic Technologists).
(B) Technological Instrumented Vestibular-Ocular-Nystagmus Testing may be performed by a licensee
with a diplomate in chiropractic neurology and that has successfully completed 150 hours of clinical and
didactic training in the technical and professional components of the procedures as part of coursework in
vestibular rehabilitation including the successful completion of a written and performance examination for
vestibular specialty or certification. The professional component of these procedures may not be delegated to
a technician and must be directly performed by a qualified licensee.
(d) Analysis, Diagnosis, and Other Opinions.
(1) In the practice of chiropractic, licensees may render an analysis, diagnosis, or other opinion regarding
the findings of examinations and evaluations. Such opinions could include, but are not limited to, the
following:
(A) An analysis, diagnosis or other opinion regarding the biomechanical condition of the spine or
musculoskeletal system including, but not limited to, the following:
(i) the health and integrity of the structures of the system;
(ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of the
system;
(iii) the existence of structural pathology, functional pathology or other abnormality of the system;
(iv) the nature, severity, complicating factors and effects of said structural pathology, functional
pathology, or other abnormality of the system;
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(v) the etiology of said structural pathology, functional pathology or other abnormality of the system; and
(vi) the effect of said structural pathology, functional pathology or other abnormality of the system on
the health of an individual patient or population of patients;
(B) An analysis, diagnosis or other opinion regarding a subluxation complex of the spine or
musculoskeletal system including, but not limited to, the following:
(i) the nature, severity, complicating factors and effects of said subluxation complex;
(ii) the etiology of said subluxation complex; and
(iii) the effect of said subluxation complex on the health of an individual patient or population of
patients;
(C) An opinion regarding the treatment procedures that are indicated in the therapeutic care of a patient or
condition;
(D) An opinion regarding the likelihood of recovery of a patient or condition under an indicated course of
treatment;
(E) An opinion regarding the risks associated with the treatment procedures that are indicated in the
therapeutic care of a patient or condition;
(F) An opinion regarding the risks associated with not receiving the treatment procedures that are
indicated in the therapeutic care of a patient or condition;
(G) An opinion regarding the treatment procedures that are contraindicated in the therapeutic care of a
patient or condition;
(H) An opinion that a patient or condition is in need of care from a medical or other class of provider;
(I) An opinion regarding an individual's ability to perform normal job functions and activities of daily
living, and the assessment of any disability or impairment;
(J) An opinion regarding the biomechanical risks to a patient, or patient population from various
occupations, job duties or functions, activities of daily living, sports or athletics, or from the ergonomics of a
given environment; and
(K) Other necessary or appropriate opinions consistent with the practice of chiropractic.
(e) Treatment Procedures and Services.
(1) In the practice of chiropractic, licensees recommend, perform or oversee the performance of the
treatment procedures that are indicated in the therapeutic care of a patient or patient population in order to:
(A) Improve, correct, or optimize the biomechanical condition of the spine or musculoskeletal system of
the human body including, but not limited to, the following:
(i) the health and integrity of the structures of the musculoskeletal system; and
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(ii) the coordination, balance, efficiency, strength, conditioning, and functional health and integrity of the
musculoskeletal system;
(B) Promote the healing of, recovery from, or prevent the development or deterioration of abnormalities
of the biomechanical condition of the spine or musculoskeletal system of the human body including, but not
limited to, the following:
(i) the structural pathology, functional pathology, or other abnormality of the musculoskeletal system;
(ii) the effects and complicating factors of any structural pathology, functional pathology, or other
abnormality of the musculoskeletal system;
(iii) the etiology of any structural pathology, functional pathology, or other abnormality of the
musculoskeletal system; and
(iv) the effect of any structural pathology, functional pathology, or other abnormality of the
musculoskeletal system on the health of an individual patient or population of patients; and
(C) Promote the healing of, recovery from, or prevent the development or deterioration of a subluxation
complex of the spine or musculoskeletal system, including, but not limited to, the following:
(i) the structural pathology, functional pathology, or other abnormality of a subluxation complex;
(ii) the effects and complicating factors of any structural pathology, functional pathology, or other
abnormality of a subluxation complex;
(iii) the etiology of any structural pathology, functional pathology, or other abnormality of a subluxation
complex; and
(iv) the effect of any structural pathology, functional pathology, or other abnormality of a subluxation
complex on the health of an individual patient or population of patients.
(2) In order to provide therapeutic care for a patient or patient population, licensees are authorized to use:
(A) osseous and soft tissue adjustment and manipulative techniques;
(B) physical and rehabilitative procedures and modalities;
(C) acupuncture and other reflex techniques;
(D) exercise therapy;
(E) patient education;
(F) advice and counsel;
(G) diet and weight control;
(H) immobilization;
(I) splinting;
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(J) bracing;
(K) therapeutic lasers (non-invasive, nonincisive), with adequate training and the use of appropriate safety
devices and procedures for the patient, the licensee and all other persons present during the use of the laser;
(L) durable medical goods and devices;
(M) homeopathic and botanical medicines, including vitamins, minerals; phytonutrients, antioxidants,
enzymes, nutraceuticals, and glandular extracts;
(N) non-prescription drugs;
(O) referral of patients to appropriate health care providers; and
(P) other treatment procedures and services consistent with the practice of chiropractic.
Source Note: The provisions of this §78.13 adopted to be effective January 29, 2015, 40 TexReg 379
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TITLE 22 EXAMINING BOARDS
PART 3 TEXAS BOARD OF CHIROPRACTIC EXAMINERS
CHAPTER 78 RULES OF PRACTICE
RULE §78.14 Acupuncture
(a) Acupuncture, and the related practices of acupressure and meridian therapy, includes methods for
diagnosing and treating a patient by stimulating specific points on or within the musculoskeletal system by
various means, including, but not limited to, manipulation, heat, cold, pressure, vibration, ultrasound, light
electrocurrent, and short-needle insertion for the purpose of obtaining a biopositive reflex response by nerve
stimulation. All therapeutic modalities provided by Doctors of Chiropractic in Texas must comply with the
chiropractic scope of practice as defined by the Texas Occupations Code §201.002.
(b) In order to practice acupuncture, a licensee shall either:
(1) successfully complete at least one-hundred (100) hours training in undergraduate or post-graduate
classes in the use and administration of acupuncture provided by a bona fide reputable chiropractic school or
by an acupuncture school approved by the Texas State Board of Acupuncture Examiners;
(2) successfully complete either:
(A) the national standardized certification examination in acupuncture offered by the National Board of
Chiropractic Examiners; or
(B) the examination offered by the National Certification Commission for Acupuncture and Oriental
Medicine; or
(3) successfully complete at least one-hundred (100) hours training in the use and administration of
acupuncture in a course of study approved by the board.
(c) Existing licensees that have been trained in acupuncture, that have been practicing acupuncture, and that
are in good standing with the Texas Board of Chiropractic Examiners and other jurisdictions where they are
licensed, may meet the requirements of subsection (b) of this section by counting each year of practice as ten
hours of training in the use and administration of acupuncture.
(d) Beginning on January 1, 2010, an applicant for licensure must successfully complete either the national
standardized certification examination in acupuncture offered by the National Board of Chiropractic
Examiners or the examination offered by the National Certification Commission for Acupuncture and
Oriental Medicine in order to practice acupuncture. This requirement will supersede the provisions of
subsection (b) of this section.
Source Note: The provisions of this §78.14 adopted to be effective January 29, 2015, 40 TexReg 379
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TITLE 22 EXAMINING BOARDS
PART 3 TEXAS BOARD OF CHIROPRACTIC EXAMINERS
CHAPTER 78 RULES OF PRACTICE
RULE §78.15 Scope of Prohibitions
(a) The practice of chiropractic does not include:
(1) incisive or surgical procedures;
(2) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
prescription; or
(3) the use of x-ray therapy or therapy that exposes the body to radioactive materials.
(b) Aspects of Prohibition.
(1) Examination and evaluation services, and the equipment used for such services, which are outside the
scope of chiropractic practice include:
(A) incisive or surgical procedures;
(B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
prescription;
(C) the use of x-ray therapy or therapy that exposes the body to radioactive materials; or
(D) other examination and evaluation services that are inconsistent with the practice of chiropractic and
with the examination and evaluation services described under this subsection.
(2) Analysis, diagnosis, and other opinions regarding the findings of examinations and evaluations which are
outside the scope of chiropractic include:
(A) incisive or surgical procedures;
(B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
prescription;
(C) the use of x-ray therapy or therapy that exposes the body to radioactive materials; or
(D) other analysis, diagnosis, and other opinions that are inconsistent with the practice of chiropractic and
with the analysis, diagnosis, and other opinions described under this subsection.
(3) The treatment procedures and services provided by a licensee which are outside of the scope of practice
include:
(A) incisive or surgical procedures;
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(B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a
prescription;
(C) the use of x-ray therapy or therapy that exposes the body to radioactive materials;
(D) cosmetic treatments; or
(E) other treatment procedures and services that are inconsistent with the practice of chiropractic and with
the treatment procedures and services described under this subsection.
(c) Questions Regarding Scope of Practice. Further questions regarding whether a service or procedure is
within the scope of practice and this rule may be submitted in writing to the Board and should contain the
following information:
(1) a detailed description of the service or procedure that will provide the Board with sufficient background
information and detail to make an informed decision;
(2) information on the use of the service or procedure by chiropractors in Texas or in other jurisdictions;
and
(3) an explanation of how the service or procedure is consistent with either:
(A) using subjective or objective means to analyze, examine, or evaluate the biomechanical condition of
the spine and musculoskeletal system of the human body; or
(B) performing nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve
the subluxation complex or the biomechanics of the musculoskeletal system.
Source Note: The provisions of this §78.15 adopted to be effective January 29, 2015, 40 TexReg 379
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APPENDIX C
OCCUPATIONS CODE CHAPTER 201. CHIROPRACTORS Page 1 of 61
OCCUPATIONS CODE
TITLE 3. HEALTH PROFESSIONS
SUBTITLE C. OTHER PROFESSIONS PERFORMING MEDICAL PROCEDURES
CHAPTER 201. CHIROPRACTORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 201.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Board of Chiropractic
Examiners.
(2) "Chiropractor" means a person licensed to practice
chiropractic by the board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 201.002. PRACTICE OF CHIROPRACTIC. (a) In this section:
(1) "Controlled substance" has the meaning assigned to that
term by Section 481.002, Health and Safety Code.
(2) "Dangerous drug" has the meaning assigned to that term
by Section 483.001, Health and Safety Code.
(3) "Incisive or surgical procedure" includes making an
incision into any tissue, cavity, or organ by any person or
implement. The term does not include the use of a needle for the
purpose of drawing blood for diagnostic testing.
(4) "Surgical procedure" includes a procedure described in
the surgery section of the common procedure coding system as adopted
by the Centers for Medicare and Medicaid Services of the United
States Department of Health and Human Services.
(b) A person practices chiropractic under this chapter if the
person:
(1) uses objective or subjective means to analyze, examine,
or evaluate the biomechanical condition of the spine and
musculoskeletal system of the human body;
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(2) performs nonsurgical, nonincisive procedures, including
adjustment and manipulation, to improve the subluxation complex or
the biomechanics of the musculoskeletal system;
(3) represents to the public that the person is a
chiropractor; or
(4) uses the term "chiropractor," "chiropractic," "doctor
of chiropractic," "D.C.," or any derivative of those terms or
initials in connection with the person's name.
(c) The practice of chiropractic does not include:
(1) incisive or surgical procedures;
(2) the prescription of controlled substances, dangerous
drugs, or any other drug that requires a prescription; or
(3) the use of x-ray therapy or therapy that exposes the
body to radioactive materials.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 1, eff.
September 1, 2005.
Sec. 201.003. APPLICATIONS AND EXEMPTIONS. (a) This chapter
does not apply to a registered nurse licensed under Chapter 301, a
vocational nurse licensed under Chapter 301, a person who provides
spinal screening services as authorized by Chapter 37, Health and
Safety Code, a physical therapist licensed under Chapter 453, or a
massage therapist or a massage therapy instructor qualified and
registered under Chapter 455 if:
(1) the person does not represent to the public that the
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