“When the Legislature vests exclusive jurisdiction in an agency, exhaustion of remedies is required.”
How later courts described this case
- “When the Legislature vests exclusive jurisdiction in an agency, exhaustion of remedies is required.”
- courts may intervene “when an agency is exercising authority beyond its statutorily conferred powers”
Written by the judges who cited it.
The opinion
ACCEPTED
03-14-00774-CV
7501580
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/22/2015 3:26:12 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00774-CV
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN 10/22/2015 3:26:12 PM
_____________________________________________________________________________________________________________________
JEFFREY D. KYLE
Clerk
ELLEN JEFFERSON, D.V.M.
Appellant,
v.
TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS
AND NICOLE ORIA, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR
Appellees.
__________________________________________________________________
On Appeal from the 250th Judicial District Court
of Travis County, Texas
__________________________________________________________________
REPLY BRIEF OF APPELLANT ELLEN JEFFERSON, D.V.M.
DAVID F. BROWN RYAN CLINTON
State Bar No. 03108700 State Bar No. 24027934
dbrown@ebblaw.com rdclinton@dgclaw.com
DAVID P. BLANKE DAVIS, GERALD & CREMER, P.C.
State Bar No. 02453600 111 Congress Ave., Suite 1660
dblanke@ebblaw.com Austin, Texas 78701
EWELL, BROWN & BLANKE, LLP Ph: (512) 537-9938
111 Congress Ave., 28th Floor Fax: (432) 687-1735
Austin, TX 78701
Ph: (512) 457-0233
Counsel for Appellant Ellen Jefferson, D.V.M.
Oral Argument Requested
TABLE OF CONTENTS
Table of Authorities ................................................................................................. iii
Introduction .............................................................................................................. 1
Argument................................................................................................................... 2
I. The TBVME’s Appellees’ Brief Concedes Multiple Errors Within
the Trial Court’s Judgment ........................................................................ 2
II. The TBVME’s Proposed Alternative Grounds for Upholding the
Trial Court’s Dismissal of Dr. Jefferson’s Uniform Declaratory
Judgment Act Claims are Without Merit. ................................................. 4
A. The Agency’s “Exclusive Jurisdiction” Argument Is Patently
Wrong. .............................................................................................. 4
1. The Texas Legislature did not convey upon the TBVME
the power to decide to act, and then act, outside its
authority. .................................................................................... 4
2. Regardless, Dr. Jefferson’s exhaustion arguments—
which the TBVME does not contest—defeat “exclusive
jurisdiction” as a ground for dismissing her claims................. 12
B. The Agency’s “Ripeness” Argument Is Also Wrong .................... 14
III. This Court Should Hold That, As a Matter of Law, the TBVME’s
Prosecution of Dr. Jefferson is Ultra Vires. ............................................ 17
IV. The TBVME’s Illegal Prosecution of Dr. Jefferson Also Merits
Mandamus Relief..................................................................................... 20
Prayer ...................................................................................................................... 22
Certificate of Service .............................................................................................. 24
Certificate of Compliance ....................................................................................... 25
ii
TABLE OF AUTHORITIES
Cases
Abbott Labs. v. Gardner,
387 U.S. 136 (1967), abrogated on other grounds in
Califano v. Sanders, 430 U.S. 99 (1977)...................................................... 16
Bexar Metro. Water Dist. v. City of Bulverde,
156 S.W.3d 79 (Tex. App.—Austin 2004, pet. denied) ................................. 8
Blue Cross Blue Shield of Tex. v. Duenez,
201 S.W.3d 674 (Tex. 2006) ...................................................................... 7, 8
Butnaru v. Ford Motor Co.,
84 S.W. 3d 198 (Tex. 2002) ....................................................................... 7, 8
Cash Am. Int’l Inc. v. Bennett,
35 S.W.3d 12 (Tex. 2000) ........................................................ 5, 6, 12, 13, 14
City of Sherman v. Pub. Util. Comm’n of Tex.,
643 S.W.2d 681 (Tex. 1983) ................................................... 9-10, 12, 13, 14
Dow Chem. Co. v. Francis,
46 S.W.3d 237 (Tex. 2001) .......................................................................... 17
Hamilton v. Washington,
No. 03-11-00594-CV, 2014 WL 7458988 (Tex. App.—Austin
Dec. 23, 2014, no pet.) (mem. op.) ............................................................... 21
Hawkins v. Cmty. Health Choice,
127 S.W.3d 322 (Tex. App.—Austin 2004, no pet.)...................................... 9
Hebert Acquisitions, LLC v. Tremur Consulting Contractors, Inc.,
No. 03-09-00385-CV, 2011 WL 350466 (Tex. App.—Austin
Feb. 4, 2011, no pet.) (mem. op.) ................................................................. 19
Janek v. Harlingen Family Dentistry, P.C.,
451 S.W.3d 97 (Tex. App.—Austin 2014, no pet.) ...................................... 20
iii
Mag-T, L.P. v. Travis Cent. Appraisal Dist.,
161 S.W.3d 617 (Tex. App.—Austin 2005, pet. denied) ................. 12, 13, 14
Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs,
278 S.W.3d 17 (Tex. App.—Austin 2008, pet. dism’d)......................... 15, 16
Rea v. State,
297 S.W.3d 379 (Tex. App.—Austin 2009, no pet.).............................. 14, 15
Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
84 S.W.3d 212 (Tex. 2002) .......................................................................... 14
Tara Partners, Ltd. v. City of S. Hous.,
282 S.W.3d 564 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied) ................................................................................................... 10
Teladoc v. Tex. Med. Bd.,
453 S.W.3d 606 (Tex. App.—Austin 2014, pet. filed) ................................ 12
Tex. Court Reporters Certification Bd. v. Esquire Deposition
Servs., L.L.C., 240 S.W.3d 79 (Tex. App.—Austin 2007, no pet.) ................ 7
Tex. Dept. of Licensing & Regulation v. Roosters MGC, LLC,
No. 03-09-00253-CV, 2010 WL 2354064 (Tex. App.—Austin
June 10, 2010, no pet.) (mem. op.) ............................................................. 7, 8
Tex. Mut. Ins. Co. v. Tex. Dep’t of Ins., Div. of Workers’ Comp.,
214 S.W.3d 613 (Tex. App.—Austin 2006, no pet.).................... 5, 12, 13, 14
Tex. Student Hous. Auth. v. Brazos Cnty. Appraisal Dist.,
No. 13-0593, 2015 WL 1870013 (Tex. Apr. 24, 2015) ....................... 2, 9, 20
Tex. State Bd. of Exam’rs in Optometry v. Carp,
343 S.W.2d 242 (Tex. 1961) .................................................................... 9, 10
Westheimer Indep. Sch. Dist. v. Brockette,
567 S.W.2d 780 (Tex. 1978) .......................................................................... 9
iv
Statutes and Rules
TEX. OCC. CODE § 801.004............................................................................. 6, 10, 21
TEX. OCC. CODE § 801.004(1) ........................................................................ 1, 10, 17
TEX. OCC. CODE § 801.402(6) ................................................................................... 6
TEX. OCC. CODE § 801.402(13) ................................................................................. 6
TEX. OCC. CODE § 801.456(a) ................................................................................... 6
v
INTRODUCTION
This case is and has always been about the TBVME’s disregard for the
Texas Legislature’s 100-year-old “owner exemption” to the Veterinary Licensing
Act. See TEX. OCC. CODE § 801.004(1). The TBVME has made clear, time and
again, that it disagrees as a matter of policy with the “owner exemption”; it
believes that the Legislature made the wrong call when it expressly excluded from
the TBVME’s authority the treatment or care of an animal by its owner, employee
of the owner, or designated caretaker. Id. In fact, the agency’s Executive Director
and Defendant Nicole Oria lobbied the Texas Legislature to change the Act so as
to eliminate the “owner exemption” for shelter veterinarians because she
believes—as the TBVME argues throughout its brief—that the century-old
statutory exception to its jurisdiction poses a danger to the public. But her
lobbying effort failed and the Legislature stuck with the “owner exemption,” and
this case (and the judicial system generally) is an improper medium for a
government agency to question the soundness of the Legislature’s will.
Because the TBVME’s prosecution of Dr. Jefferson (whose non-profit owns
the animals the care of which the agency questions) is in clear and unambiguous
contravention of the “owner exemption,” the agency’s Appellees’ brief is forced to
rely on hyperbole, strawman arguments, and misstatements of Texas jurisdictional
principles. But its obfuscations can do nothing to evade the long-settled Texas rule
that a governmental entity is not entitled to act beyond its authority, and when it
1
does, courts are empowered to intervene to stop it. As the Texas Supreme Court
recently made clear yet again:
If an injured party with standing brings and proves an action seeking
to confine [a governmental agency] within its statutory constraints . . .
courts may intervene to provide an appropriate remedy, such as an
injunction to prevent [the agency] from continuing to exceed its
limited statutory authority.
Tex. Student Hous. Auth. v. Brazos County Appraisal Dist., No. 13-0593, 2015 WL
1870013, at *6 (Tex. Apr. 24, 2015).
Because the trial court’s judgment to the contrary is erroneous, Dr. Jefferson
respectfully requests that the Court reverse the trial court’s erroneous judgment and
render judgment that the TBVME’s prosecution of Dr. Jefferson for the treatment
and care of animals owned by San Antonio Pets Alive is unlawful and ultra vires.
ARGUMENT
I. THE TBVME’S APPELLEES’ BRIEF CONCEDES MULTIPLE ERRORS WITHIN
THE TRIAL COURT’S JUDGMENT.
The TBVME’s Appellees’ brief contains two critical concessions of error in
the trial court’s judgment. First and foremost, the TBVME concedes that the trial
court erred when—in its primary challenged holding—it dismissed Dr. Jefferson’s
Uniform Declaratory Judgment Act claims for failure to exhaust administrative
remedies. See 1.CR.855; TBVME Appellees’ Br. at 24-25. As Dr. Jefferson
explained in her opening brief, the trial court’s dismissal of her declaratory-relief
claims for failure to exhaust administrative remedies was erroneous because (1) the
2
Legislature did not confer upon the TBVME “exclusive jurisdiction” over conduct
falling within the “owner exemption,” and (2) even if it had, several exceptions to
the exhaustion doctrine apply here—including the uncontested exception for ultra
vires claims. See Jefferson Appellant’s Br. at 21-40. In the TBVME’s Appellees’
brief, the agency concedes that the trial court’s exhaustion holding is error,
asserting that the doctrine is “immaterial” to the resolution of Dr. Jefferson’s
claims. See TBVME Appellees’ Br. at 24. The agency’s concession in that regard
means that the part of the trial court’s judgment dismissing Dr. Jefferson’s
declaratory-relief claims for failure to exhaust administrative remedies must be
reversed unless the agency can support the dismissal on alternative grounds—
which it cannot. See infra Part II.
Second, the TBVME concedes that the trial court erred by issuing
unrequested and ambiguous declaratory relief regarding the agency’s authority to
enforce “other laws” in the owner-exemption context. See TBVME Appellees’ Br.
at 31-32. As Dr. Jefferson explained in her opening brief, the trial court’s
declaration regarding “other laws” constituted reversible error because no such
declaration was requested by either party, the declaration is legally incorrect, and it
is not even clear what that part of the judgment means. See Jefferson Appellant’s
Br. at 57-60.
Because the TBVME concedes that the trial court’s judgment is erroneous
on at least these two grounds, this appeal is no longer about whether the trial court
3
erred but rather how much it erred and what the appropriate appellate remedies for
the errors are under the circumstances. The remaining issues are briefed below.
II. THE TBVME’S PROPOSED ALTERNATIVE GROUNDS FOR UPHOLDING THE
TRIAL COURT’S DISMISSAL OF DR. JEFFERSON’S UNIFORM DECLARATORY
JUDGMENT ACT CLAIMS ARE WITHOUT MERIT.
In her opening brief, Dr. Jefferson explained that the trial court erroneously
dismissed Dr. Jefferson’s Uniform Declaratory Judgment Act claims on the stated
ground that she “failed to exhaust administrative remedies.” See Jefferson
Appellant’s Br. at 21-40. The TBVME admits the trial court’s error in this regard,
but asserts that the dismissal of Dr. Jefferson’s claims is supportable on alternative
grounds. Specifically, the agency asserts that (1) the TBVME has “exclusive
jurisdiction” to decide whether the Legislature has given it jurisdiction to prosecute
conduct it deems unlawful, see TBVME Appellees’ Br. at 11-19; and (2) Dr.
Jefferson’s claims are “unripe” because the agency has not completed its ultra
vires prosecution of Dr. Jefferson, id. at 25-29. Both arguments are incorrect.
A. The Agency’s “Exclusive Jurisdiction” Argument Is Patently
Wrong.
1. The Texas Legislature did not convey upon the TBVME the
power to decide to act, and then act, outside its authority.
The TBVME’s first proposed alternative ground for affirming the trial
court’s dismissal of Dr. Jefferson’s declaratory-relief claims is that—according to
the agency—the Legislature impliedly conferred upon it “exclusive jurisdiction” to
determine whether a particular case falls within or outside its jurisdiction and a
4
concomitant right, if it so chooses, to conduct itself outside the confines of its legal
authority without interference from the judiciary. See TBVME Appellees’ Br. at
11-19. In other words, the TBVME contends that it is endowed with a kind of
implicitly conferred “superpower” that affords it—unlike essentially every other
agency in the State—the ability to exceed its statutorily conferred authority
whenever, however, and against whomever it in its sole discretion deems
appropriate; and (2) divests Texas trial courts of their inherent constitutional and
statutory jurisdiction to stop the government agency from acting outside its
authority. Id. The lawlessness of the TBVME’s position is at once transparent and
breathtaking; it is also baseless and in contravention of settled Texas law.
As Dr. Jefferson explained in her opening brief, a government agency has
“exclusive jurisdiction” over a dispute if the Legislature has granted the agency
“the sole authority to make the initial determination in a dispute.” Tex. Mut. Ins.
Co. v. Tex. Dep’t of Ins., Div. of Workers’ Comp., 214 S.W.3d 613, 616 (Tex.
App.—Austin 2006, no pet.) (emphasis original). Whether the Legislature has
conferred upon an agency such authority is a question of statutory construction, the
purpose of which is “to give effect to the Legislature’s intent.” Cash Am. Int’l Inc.
v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000). The test for determining whether an
agency has “exclusive jurisdiction” over a particular subject matter is whether a
statute “indicate[s] clearly or plainly that the Legislature intended” to divest Texas
district courts of subject-matter jurisdiction over the particular subject in favor of
5
the agency’s initial determination. Id. at 16. Because nothing in the Veterinary
Licensing Act expressly or impliedly indicates the Legislature’s clear intent to
divest Texas courts of their inherent constitutional jurisdiction to decide whether
the TBVME is acting outside its statutory authority (or more specifically, whether
it is prosecuting a person covered by the “owner exemption”), the agency’s
exclusive-jurisdiction argument is without merit.
In its attempt to claim “exclusive jurisdiction” over Dr. Jefferson’s claims
that the TBVME exceeded its statutory authority by regulating conduct expressly
excluded from its jurisdiction, the TBVME points to its general authority to
discipline a veterinarian for violating the Veterinary Licensing Act or the rules
promulgated thereunder. See TBVME Appellees’ Br. at 12-13 (citing TEX. OCC.
CODE § 801.456(a); 801.402(6),(13)). However, nothing in the provisions the
TBVME points to—or in any other provision in its enabling Act—indicates
expressly or impliedly that the agency has “exclusive authority” to either (1)
decide whether it is prosecuting a person for conduct falling outside its jurisdiction,
or (2) prosecute a person whose conduct falls outside its jurisdiction once it has
decided to do so. Moreover, the agency has tellingly neglected to inform the Court
that—per the plain terms of the statute—each of the provisions the agency points
to for claimed “exclusive jurisdiction” over owner-exempted conduct expressly
“does not apply to” conduct falling within the “owner exemption.” TEX. OCC.
CODE § 801.004. It defies reason to assert that provisions that the Legislature
6
expressly stated do not apply to owner-exempted conduct were intended by the
Legislature to apply to owner-exempted conduct.
The TBVME’s claimed precedential authority for its argument is also of no
help. Its primary authority—Texas Court Reporters Certification Bd. v. Esquire
Deposition Servs., L.L.C.—did not hold that the court reporters’ board has
exclusive jurisdiction over claims that it acted outside of its statutory authority, but
instead held that the plaintiff’s request for a declaration that its contested conduct
falls outside the pertinent statute’s restrictions sought “broader relief than might be
available in the disciplinary proceeding” and therefore was not precluded by the
agency’s claimed “exclusive authority.” 240 S.W.3d 79, 91 (Tex. App.—Austin
2007, no pet.); see also Tex. Dept. of Licensing & Regulation v. Roosters MGC,
LLC, No. 03-09-00253-CV, 2010 WL 2354064, at *7 n.4 (Tex. App.—Austin June
10, 2010, no pet.) (mem. op.) (noting that declaratory-relief claims at issue in
Esquire were not dismissed “because of any exclusivity concerns”).
The TBVME’s reliance on the Texas Supreme Court’s Butnaru and Duenez
cases fairs no better. Each of those cases interprets a statute that—unlike the
Veterinary Licensing Act—expressly conveys “exclusive jurisdiction” upon the
state agency involved, and neither case remotely reaches the conclusion advanced
by the TBVME here—i.e., that a statute’s general appropriation of regulatory
duties gives an agency “exclusive jurisdiction” to decide whether it is acting within
its statutory authority (and to proceed to act outside its authority if it so chooses).
7
In Butnaru v. Ford Motor Co., the Supreme Court held that a statute conveying
upon a state agency “exclusive, original jurisdiction” over a subject matter gave the
agency “exclusive jurisdiction” over causes of action expressly falling within that
subject matter but not over claims related thereto but ultimately lacking a clear
indication of legislative intent to be included. 84 S.W.3d 198, 203, 207-08 (Tex.
2002). And in Blue Cross Blue Shield of Tex. v. Duenez, the Supreme Court held
that even if the Legislature expressly conveys upon a government agency
“exclusive authority to determine all questions relating to” a particular subject
matter, the claims still will not be barred if an exception to the exhaustion-of-
administrative-remedies doctrine applies. 201 S.W.3d 674, 676-77 (Tex. 2006)
(emphasis added). Here, there is no express conveyance of “exclusive jurisdiction”
in the Veterinary Licensing Act; there are no words in the Act indicating that the
TBVME has authority to resolve “all questions” relating to the treatment or care of
animals; there is nothing explicit or implicit in the Act indicating that the agency
has the right to determine the limits of its own jurisdiction; and there is nothing
explicit or implicit in the Act that defeats Texas district courts’ inherent
jurisdiction to stop the TBVME from acting outside its statutory authority. See
Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d 79, 90 (Tex. App.—
Austin 2004, pet. denied) (rejecting exclusive-jurisdiction argument because no
statutory language gave agency exclusive authority to interpret its enabling
statute); Roosters MGC, 2010 WL 2354064, at *6 (rejecting exclusive-jurisdiction
8
argument because declaratory-judgment claim sought broader relief than mere
reversal of the agency’s disciplinary action). Accordingly, when Dr. Jefferson
sought “to confine [the TBVME] within its statutory constraints,” the trial court
undoubtedly had jurisdiction “to intervene to provide the appropriate remedy, such
as an injunction to prevent [the agency] from continuing to exceed its limited
statutory authority.” See Tex. Student Hous. Auth., 2015 WL 1870013, at *6;
Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978)
(courts may intervene “when an agency is exercising authority beyond its
statutorily conferred powers”).1
Moreover, as Dr. Jefferson explained in her opening brief, the Legislature
went even further in the Veterinary Licensing Act to expressly and specifically
exclude the TBVME from regulating conduct covered by the “owner exemption.”
See Jefferson Appellant’s Br. at 27-30. As the Texas courts have uniformly held,
when a statute expressly excludes a specific subject area from a regulatory
agency’s authority, it necessarily does not confer upon the agency the “exclusive
jurisdiction” to regulate within that subject area. Id. (citing City of Sherman v.
1
The agency’s references to Hawkins v. Cmty. Health Choice, 127 S.W.3d 322 (Tex. App.—
Austin 2004, no pet.) and Tex. State Bd. of Exam’rs in Optometry v. Carp, 343 S.W.2d 242, 246
(Tex. 1961) are also off point. Hawkins expressly holds that a state agency can be forced to
comply with the law even when it believes it need not do so under the facts of a particular case.
127 S.W.2d at 324-26 (criticizing the state agency for attempting to be the “sole fact-finder” and
stating that permitting its argument would mean that claims against the agency “would rise or
fall based on that agency’s potentially self-interested interpretation” of the law and facts). And
Carp merely recognizes that courts should not interfere with an agency’s “lawful exercise of
duties and functions committed to them by law.” 343 S.W.2d at 246 (emphasis added). It affords
the TBVME no protection for acting unlawfully or outside its statutorily delegated authority.
9
Pub. Util. Comm’n of Tex., 643 S.W.2d 681, 683-85 (Tex. 1983); Tara Partners,
Ltd. v. City of S. Hous., 282 S.W.3d 564, 571 (Tex. App.—Houston [14th Dist.]
2009, pet. denied)). Even though both referenced cases expressly so hold, the
TBVME asserts each is “distinguishable.” See TBVME Appellees’ Br. at 15. The
agency claims that Tara Partners is “distinguishable” because in that case, the
agency was “expressly” barred from regulating the contested conduct, and that City
of Sherman is “distinguishable” because in that case, the regulatory agency’s
exemption was “clear.” Id. at 15-16 (emphasis original). What the TBVME
forgets is that the “owner exemption” to its regulatory authority is also “express”
and “clear.” See TEX. OCC. CODE § 801.004(1) (the Veterinary Licensing Act
“does not apply to . . . the treatment or care of an animal in any manner by the
owner of the animal, an employee of the owner, or a designated caretaker of the
animal . . . .”).
Finally, the Board hyperbolically asserts—as it does throughout its brief—
that if the Court were to hold that the TBVME does not have “exclusive
jurisdiction” to decide whether a person’s conduct falls within the agency’s
statutory authority (and thus allow a litigant to question the agency’s ultra vires
acts), “any vet could simply claim to be exempt without any investigation of the
facts underlying such a claim” and “[t]hat would lead to the unregulated practice of
veterinary medicine, a result which the Legislature certainly did not intend.” See
TBVME Br. at 17 (if a person is allowed to question the agency’s ultra vires act,
10
“any veterinarian could evade the Act simply by claiming to be exempt.”)
(emphasis original), 18 (allowing ultra vires claim would permit “a vet [sic] [to]
take him or herself out of the disciplinary authority of the Board by just saying
‘because I said so.’”). To put it simply, this argument is nonsensical. Permitting
access to Texas courts for claims that a governmental agency has acted ultra vires
would not lead to the “unregulated practice of veterinary medicine,” or to the
evasion of the Veterinary Licensing Act “simply by claiming to be exempt” or “by
just saying ‘because I said so.’” Id. at 17-18 (emphasis original). Rather,
recognizing Texas courts’ inherent constitutional and statutory jurisdiction over
ultra vires claims merely allows a litigant the opportunity to prove that a
government agency has acted unlawfully. And only upon such proof would a
Texas court bar the agency from exceeding its statutory authority (not from
exercising its lawful authority). And if, in fact, a person who is by law exempt
from a government agency’s regulatory authority proves her case, a court order
halting the agency’s illegal conduct would not undermine the Legislature’s intent;
to the contrary, it would give effect to the Legislature’s intent. This Court recently
said it well:
[W]here, as here, an agency’s legal or policy pronouncements seek to
control the conduct of a free people through the assertion or
threatened assertion of State power, agency “impotence” is hardly the
relevant concern under our Constitution and laws. Rather, it is the
risk that agencies—whose legitimate authority and very existence
must derive from law and not merely perceived “expediency”—will
stray from their legal limitations (perhaps with the best of individual
11
intentions, but exceeding them nevertheless) through what federal
courts have aptly termed a “tyranny of small decisions” that
substantively assert Executive or Legislative power over the citizenry
through forms calculated to avoid the meaningful checks and balances
the Framers intended the Judiciary to provide.
Teladoc, Inc. v. Tex. Med. Bd., 453 S.W.3d 606, 622 (Tex. App.—Austin 2014,
pet. filed) (citations omitted). The TBVME’s claim of impotence—should it
actually have to defend the legality of its actions in the courts of Texas—is equally
misdirected.
2. Regardless, Dr. Jefferson’s exhaustion arguments—which
the TBVME does not contest—defeat “exclusive
jurisdiction” as a ground for dismissing her claims.
A state agency’s “exclusive jurisdiction” over a dispute is not an automatic
bar to a lawsuit but rather sets up a second inquiry: whether the litigant has
exhausted her administrative remedies under the particular circumstances of the
case. Cash Am., 35 S.W.3d at 16 (“When the Legislature vests exclusive
jurisdiction in an agency, exhaustion of remedies is required.”); City of Sherman,
643 S.W.2d at 683; Tex. Mut. Ins. Co., 214 S.W.3d at 616; Mag-T, L.P. v. Travis
Cent. Appraisal Dist., 161 S.W.3d 617, 625 (Tex. App.—Austin 2005, pet. denied)
(if agency has exclusive authority, suit subject to dismissal unless claim “falls into
one of the exceptions to the exhaustion of administrative remedies doctrine”). In
other words—contrary to the TBVME’s assertion (made without authority) that
exhaustion-of-administrative-remedies is “simply immaterial” once a court has
determined an agency has “exclusive subject matter jurisdiction,” see TBVME
12
Appellees’ Br. at 24, a Texas district court will be divested of jurisdiction over a
suit due to “exclusive jurisdiction” only if both the agency has “exclusive
jurisdiction” and (2) none of the exceptions to the exhaustion-of-administrative-
remedies doctrine applies. See Cash Am., 35 S.W.3d at 16; City of Sherman, 643
S.W.2d at 683; Tex. Mut. Ins. Co., 214 S.W.3d at 616; Mag-T, L.P., 161 S.W.3d at
625.
In her opening brief, Dr. Jefferson briefed four exceptions to the exhaustion-
of-administrative-remedies doctrine that retain the trial court’s jurisdiction over
this case regardless of whether the TBVME has “exclusive jurisdiction” over the
“owner exemption.” First, the doctrine does not divest a district court of
jurisdiction to adjudicate claims—like those here—alleging that a governmental
agency is acting outside its authority. See Jefferson Appellant’s Br. at 31-33.
Second, the doctrine does not divest a district court of jurisdiction where—as
here—forcing the plaintiff to first exhaust administrative remedies would subject
the plaintiff to irreparable harm. Id. at 33-36. Third, the doctrine does not divest a
district court of jurisdiction where—as here—the issue presented is legal in nature.
Id. at 36-37. And fourth, the doctrine does not divest a district court of jurisdiction
where—as here—the litigant’s participation in further administrative proceedings
would be an “exercise in futility.” Id. at 37-40. In its Appellees’ brief, the
TBVME did not contest Dr. Jefferson’s first, third, and fourth arguments. See
TBVME Appellees’ Br. at 23-25. As a result, it is uncontested that Dr. Jefferson is
13
not required to exhaust her administrative remedies, id., which means that the trial
court has jurisdiction over this suit regardless of whether the TBVME has
“exclusive jurisdiction.” See Cash Am., 35 S.W.3d at 16; City of Sherman, 643
S.W.2d at 683; Tex. Mut. Ins. Co., 214 S.W.3d at 616; Mag-T, L.P., 161 S.W.3d at
625. The TBVME’s reliance on “exclusive jurisdiction” as an alternative ground
to uphold the trial court’s dismissal of Dr. Jefferson’s Uniform Declaratory
Judgment Act claims is thus without merit.
B. The Agency’s “Ripeness” Argument Is Also Wrong.
Dr. Jefferson anticipated that the TBVME would assert “ripeness” as an
alternative ground for the trial court’s dismissal of her declaratory-relief claims and
therefore already addressed the argument in her opening brief. See Jefferson
Appellant’s Br. at 41-43. As Dr. Jefferson explained, a ripeness objection does not
divest a district court of jurisdiction to consider a claim—like Dr. Jefferson’s—
alleging that a state actor is acting “in excess of its powers and jurisdiction.” Rea
v. State, 297 S.W.3d 379, 384 (Tex. App.—Austin 2009, no pet.) (citing Subaru of
Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002)). That
rule specifically defeats an agency’s jurisdictional plea whenever the complainant
alleges—like Dr. Jefferson here—that “the Board or SOAH lacks authority to
make an initial determination regarding the revocation or suspension of a . . .
license” under the particular facts of a case. Id. at 384-85. The TBVME’s
Appellees’ brief offers no response on this point.
14
Instead, the agency’s brief alleges that Dr. Jefferson’s suit is unripe because,
although the TBVME has already concluded that Dr. Jefferson has violated the
Veterinary Licensing Act and rules promulgated thereunder, 1.CR.117, it has not
yet concluded its prosecution of Dr. Jefferson. See TBVME Appellees’ Br. at 26-
27. But this Court has already rejected that argument when the TBVME advanced
it in another case:
The Board argues that this case is not ripe because the statute in
question has not yet been enforced against the practitioners in a final
agency action. However, in order to establish ripeness . . ., the
practitioners are not required to demonstrate that the statute has been
[finally] enforced against them, but only “that an enforcement action
is ‘imminent or sufficiently likely.’” As the Board states in its brief
on appeal, [it has already begun enforcement action]. . . . [T]he
informal conferences and [allegations] that the practitioners were in
violation of the Act and that their cases would be referred to SOAH,
are sufficient to establish that an enforcement action is imminent or
sufficiently likely.
Mitz v. Tex. State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d 17, 25 (Tex.
App.—Austin 2008, pet. dism’d).
Moreover, as Dr. Jefferson explained in her opening brief, an additional
reason ripeness is not a bar to the trial court’s jurisdiction is that she “would suffer
hardship if judicial review is withheld until administrative proceedings have
concluded.” See Jefferson Appellant’s Br. at 41 (quoting Mitz, 278 S.W.3d at 26).
As this Court has explained, hardship is established when participating in an
administrative proceeding “requires an immediate and significant change in the
plaintiffs’ conduct of their affairs with serious penalties attached to
15
noncompliance.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 153 (1967),
abrogated on other grounds in Califano v. Sanders, 430 U.S. 99 (1977)). Dr.
Jefferson and San Antonio Pets Alive would suffer severe hardship—including
either having to make significant changes to their business practice or exposing
themselves to “serious penalties attached to noncompliance”—if Dr. Jefferson
were forced to continue to fight the TBVME’s ultra vires conduct within the
administrative process. See Jefferson Appellant’s Br. at 42-43; see also id. at 33-
36.
Here too, the TBVME’s response makes little sense. The agency claims that
“Dr. Jefferson has been free to operate SAPA throughout the course of this case
and underlying administrative proceeding.” See TBVME Appellees’ Br. at 28.
But the fact that Dr. Jefferson is physically “free” is inconsequential. The question
is whether Dr. Jefferson is forced into a lose-lose choice of either (1) significantly
changing her business practices, or (2) exposing herself to the possibility of
additional charges by not changing her business practices. See Mitz, 278 S.W.3d at
26. The evidence at trial conclusively demonstrated that that is exactly what has
happened here: Dr. Jefferson must either comply with the agency’s incorrect view
of the law and significantly change her business practices pending administrative
review or face additional potential serious penalties for not significantly changing
her business practices to comport with the agency’s incorrect view of the law. See
16
Jefferson Appellant’s Br. at 33-36, 42-43. For each of these reasons, Dr.
Jefferson’s claims are not “unripe.” 2
III. THIS COURT SHOULD HOLD THAT, AS A MATTER OF LAW, THE TBVME’S
PROSECUTION OF DR. JEFFERSON IS ULTRA VIRES.
Given that the trial court had jurisdiction to determine Dr. Jefferson’s
declaratory-relief claims, the trial court should have reached the merits of those
claims. Based on the conclusive and uncontroverted evidence and testimony
presented at the combined plea and trial on the merits, this Court should hold that
pursuant to the “owner exemption” of the Veterinary Licensing Act, the TBVME
has no authority over Dr. Jefferson’s treatment and care of the animals owned by
her nonprofit San Antonio Pets Alive and thus the agency’s attempt to prosecute
Dr. Jefferson for her care of SAPA’s animals is ultra vires and unlawful. See Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
The “owner exemption” to the Veterinary Licensing Act states that the Act
“does not apply to . . . the treatment or care of an animal in any manner by the
owner of the animal, an employee of the owner, or a designated caretaker of the
animal, unless the ownership, employment, or designation is established with the
intent to violate [the Act].” TEX. OCC. CODE § 801.004(1). The Board conceded at
trial (and in its “Allegations,” 1.CR.117) that San Antonio Pets Alive owned the
2
The agency’s ultra vires conduct has also already injured Dr. Jefferson and San Antonio Pets
Alive. As Dr. Jefferson explained at trial, following the agency’s unlawful proceedings against
her, one of SAPA’s veterinarians resigned from the organization, and SAPA has been unable to
attract another veterinarian to work on behalf of the shelter. 2.RR.163.
17
animals at issue, 2.RR.41-42, leaving two merits questions: (1) whether Dr.
Jefferson’s provision of care to SAPA’s animals constituted “the treatment or care
of an animal in any manner by the owner of the animal, an employee of the owner,
or a designated caretaker”; and (2) whether SAPA’s ownership of the animals or
Dr. Jefferson’s role at SAPA was “established with the intent to violate” the Act.
Dr. Jefferson explained in her opening brief that—as a matter of law—Dr.
Jefferson’s care of SAPA’s animals was by the owner, employee of the owner, or
designated caretaker of the animals. See Jefferson Appellant’s Br. at 45-49. Dr.
Jefferson also explained in her opening brief that the evidence was uncontroverted
and conclusive—and thus demonstrated as a matter of law—that Dr. Jefferson and
SAPA did not intend to violate the Veterinary Licensing Act when they established
ownership of the animals and Dr. Jefferson’s role with the organization. See id. at
50-57. Dr. Jefferson and SAPA’s sole intent was to save shelter animals’ lives. Id.
In its Appellees’ Brief, the TBVME elected not to contest that SAPA owned
the animals or that Dr. Jefferson’s treatment of SAPA’s animals was by the owner,
employee of the owner, or designated caretaker of the animals. The TBVME’s
sole contest of the merits of Dr. Jefferson’s declaratory-relief claim in the entirety
of its Appellees’ Brief is found in two sentences of a single footnote in its brief.
According to the TBVME, “the evidence at trial was not ‘uncontroverted’ on the
issue of whether Dr. Jefferson is exempt. The Board presented documentary
evidence at trial which it believed demonstrated that Dr. Jefferson did in fact
18
intend to evade the Act.” See TBVME Appellees’ Br. at 19 n.3 (citing 1.RR.114,
170, 198). That’s it. No analysis, no briefing, no authority; just a reference to
three pages. That is not an adequately presented appellate argument and it is
therefore waived. See Hebert Acquisitions, LLC v. Tremur Consulting
Contractors, Inc., No. 03-09-00385-CV, 2011 WL 350466, at *12 n.13 (Tex.
App.—Austin Feb. 4, 2011, no pet.) (mem. op.). In any event, the three pages
referenced by the TBVME do not create a fact issue that would prevent this Court
from recognizing as a matter of law that Dr. Jefferson did not intend to violate the
Veterinary Licensing Act. In fact, the subject of Dr. Jefferson’s intent is not even
mentioned on the referenced pages. 2.RR.114, 170, 198.
Finally, the agency asserts that regardless of whether Dr. Jefferson’s conduct
fell under the “owner exemption,” the Court should hold that its prosecution of Dr.
Jefferson for conduct over which the agency has no authority was not ultra vires
because the acts of the TBVME and its executive director Oria are “discretionary”
in nature and thus not subject to an ultra vires claim. See TBMVE Appellees’ Br.
at 19-23. Here again, the agency’s position defies logic. Dr. Jefferson has not
requested a declaration that the agency has no authority to investigate complaints
or to discipline veterinarians in general. Instead, Dr. Jefferson has requested a
declaration that her care and treatment of SAPA’s animals falls within the “owner
exemption” of the Veterinary Licensing Act and, therefore, that the TBVME’s and
Oria’s proceedings against her regarding her care and treatment of SAPA’s
19
animals exceed the agency’s statutory authority and are therefore unlawful and
ultra vires. See Jefferson Appellant’s Br. at 44-52. Those are different questions
than the strawman argument that the agency presents, and it is undisputable that a
government agency does not have discretion to act beyond its statutory authority.
See Tex. Student Hous. Auth., 2015 WL 1870013, at *6. Because Dr. Jefferson
proved as a matter of law at the trial court’s joint trial and plea hearing that her
treatment and care of SAPA’s animals falls within the “owner exemption” to the
TBVME’s authority, this Court should and is empowered to so hold. See id.
Accordingly, Dr. Jefferson respectfully requests that this Court declare the
agency’s proceedings against her ultra vires and enjoin the agency from further
prosecuting Dr. Jefferson for conduct falling outside its expressly limited statutory
authority.
IV. THE TBVME’S ILLEGAL PROSECUTION OF DR. JEFFERSON ALSO MERITS
MANDAMUS RELIEF.
Dr. Jefferson’s final argument on appeal is that the trial court erred by
denying her request for mandamus relief to stop the TBVME’s illegal and ultra
vires proceedings against her. See Jefferson Appellant’s Br. at 53-57. As Dr.
Jefferson’s opening brief explains, mandamus relief is available both to compel a
government official “to perform a ministerial act,” Janek v. Harlingen Family
Dentistry, P.C., 451 S.W.3d 97, 101 (Tex. App.—Austin 2014, no pet.), and to
protect a person “from illegal or unauthorized” acts of government officials sued
20
“in their official capacity,” Hamilton v. Washington, No. 03-11-00594-CV, 2014
WL 7458988, at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.). Dr.
Jefferson demonstrated both. See Jefferson Appellant’s Br. at 56-57.
In its Appellees’ Brief, the TBVME responds that the Veterinary Licensing
Act does not “‘clearly spell out’ any requirement that the Board ignore a complaint
when a vet simply claims to be exempt.” See TBVME Appellees’ Br. at 29
(emphasis original). Again, the agency misses the point. Dr. Jefferson has never
argued that the TBVME must “ignore a complaint when a vet simply claims to be
exempt.” Id. To the contrary, Dr. Jefferson’s argument is that the TBVME has no
authority to prosecute her (or anyone else, for that matter) for the care and
treatment of an animal falling under the “owner exemption” to the agency’s
authority. See Jefferson Appellant’s Br. at 44-52, 53-57. That exemption is
“clearly spelled out.” See TEX. OCC. CODE § 801.004. Moreover, as this Court has
made clear, mandamus is proper to prevent government officials from committing
“illegal or unauthorized acts.” Hamilton, 2014 WL 7458988, at *5. Because Oria
has no discretion to act outside the agency’s statutory authority, she has no choice
but to drop the claims against Dr. Jefferson.
Finally, the TBVME asserts that the benefits to mandamus are outweighed
by the detriments in this case because stopping the agency from acting outside its
authority “would . . . negatively impact[] its ability to protect the public,” and if the
Court were to constrain it to its statutory authority, “those entire statutory schemes
21
would be turned on their head.” See TBMVE Appellees’ Br. at 31. This too is
wrong. The agency has no authority, permission, policy directive, responsibility,
or ability to act outside its statutory authority, and constraining it to its statutory
authority would give effect to—not contravene—legislative intent. And as this
Court has already said, an agency’s claim of impotence should it be required to
obey the law is of no import. The question is a simple one: is the TBVME’s
prosecution of Dr. Jefferson for her care and treatment of SAPA’s animals ultra
vires pursuant to the “owner exemption”? As a matter of law, the answer is “yes.”
This Court should therefore reverse the trial court’s denial of mandamus relief and
issue such relief barring the agency from further violating Texas law.
PRAYER
For these reasons, Dr. Jefferson respectfully requests that this Court reverse
that part of the trial court’s judgment (1) dismissing Dr. Jefferson’s UDJA claims
for failure to exhaust administrative remedies; (2) denying (or dismissing) Dr.
Jefferson’s requested mandamus relief; and (3) issuing ambiguous, unrequested,
and improper declaratory relief regarding “other laws.” Dr. Jefferson requests that
the Court render the judgment that the trial court should have rendered, including
holding that the TBVME and Oria’s disciplinary proceedings against Dr. Jefferson
are illegal and ultra vires, and issuing injunctive and mandamus relief to stop Oria
and the agency from unlawfully disciplining Dr. Jefferson for her care and
treatment of animals owned by San Antonio Pets Alive. Alternatively, Dr.
22
Jefferson requests that the Court reverse the trial court’s judgment and remand the
case to the trial court for consideration of the merits of Dr. Jefferson’s UDJA and
mandamus claims. Finally, Dr. Jefferson requests that the Court strike or modify
the trial court’s ambiguous declaration regarding “other laws,” and that the Court
issue any such other relief to which she may be entitled in equity or law.
Respectfully submitted,
/s/ Ryan Clinton
Ryan Clinton
State Bar No. 24027934
rdclinton@dgclaw.com
DAVIS, GERALD & CREMER, P.C.
111 Congress Ave., Suite 2800
Austin, Texas 78701
Ph: (512) 537-9938
Fax: (432) 687-1735
David F. Brown
State Bar No. 03108700
dbrown@ebblaw.com
David P. Blanke
State Bar No. 02453600
dblanke@ebblaw.com
EWELL, BROWN & BLANKE, LLP
111 Congress Ave., 28th Floor
Austin, TX 78701
Ph: (512) 457-0233
23
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent this
22nd day of October, 2015 as follows:
VIA EFSP & EMAIL
Mr. Andrew Lutostanski
andrew.lutostanski@texasattorneygeneral.gov
Mr. Ted A. Ross
ted.ross@texasattorneygeneral.gov
Office of the Attorney General of Texas
Administrative Law Division
P. O. Box 12548
Austin, TX 78711
/s/ Ryan Clinton
Ryan Clinton
24
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document (Microsoft Word), I certify that the number of words in this
brief (excluding the identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, signature, proof of service, certification, certificate of
compliance, and appendix) is 5,576 and that the text of the document is in 14-pt.
font. The text of all footnotes is 12-pt.font.
/s/ Ryan Clinton
Ryan Clinton
25