Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director// Ellen Jefferson, D.V.M. v. Ellen Jefferson, D.V.M.// Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director

ACCEPTED

03-14-00774-CV

7701600

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/5/2015 1:37:42 PM

JEFFREY D. KYLE

CLERK

NO. 03-14-00774-CV

____________________________________________________

RECEIVED IN

3rd COURT OF APPEALS

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS

AT AUSTIN, TEXAS 11/5/2015 1:37:42 PM

____________________________________________________

JEFFREY D. KYLE

Clerk

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS,

and NICOLE ORIA, in her Official Capacity as Executive Director

Appellants/Cross-Appellees,

v.

ELLEN JEFFERSON, D.V.M.,

Appellee/Cross-Appellant.

____________________________________________________

On Appeal from the 127th Judicial District Court of Travis County, Texas

Cause No. D-1-GN-14-000287

The Honorable Gisela D. Triana presiding

____________________________________________________

APPELLANTS’/CROSS-APPELLEES’

SUGGESTION OF MOOTNESS

____________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellants/Cross-Appellees, the Texas State Board of Veterinary Medical

Examiners and Nicole Oria, in Her Official Capacity as Executive Director

(hereinafter collectively referred to as the “Board”), by and through the Office of the

Attorney General of Texas and the undersigned Assistant Attorney General, submit

this suggestion of mootness regarding the pending cross-appeal filed by

Appellee/Cross-Appellant Ellen Jefferson, D.V.M. (“Dr. Jefferson”).

1. After the Board appealed the district court’s judgment invalidating two

Board rules, Dr. Jefferson filed a cross-appeal challenging the same judgment which

dismissed her claims under the Uniform Declaratory Judgments Act. CR 855-57;

871-72. Dr. Jefferson challenged the Board’s jurisdiction with respect to a complaint

regarding the treatment of a German Shepherd dog which was fostered out of San

Antonio Pets Alive! (“SAPA”), an animal shelter. In addition to allegations

regarding the treatment of the dog, the Board further alleged that Dr. Jefferson mis-

handed medication and failed to respond to Board’s Staff’s request to furnish certain

information. Dr. Jefferson claims that she is exempt from the care and treatment of

the dog pursuant to an exemption in the Veterinary Licensing Act (“Act”). Tex.

Occ. Code § 801.004(1).

2. Since the district court’s judgment was entered, Dr. Jefferson and Board

Staff tried the exemption issue at the State Office of Administrative Hearings

(“SOAH”). Exhibit A. The SOAH Administrative Law Judge (“ALJ”) made a

preliminary determination that Dr. Jefferson is exempt from the Act, and referred

the other two issues (mis-handling of drugs and failure to provide information) for a

later hearing. Id. at 16. The ALJ then referred the matter to mediation. Exhibit B.

3. In light of the events which occurred in the underlying administrative

proceeding since the filing of Dr. Jefferson’s cross-appeal, and after careful

consideration, Board Staff decided to dismiss the SOAH complaint and close the

2

remaining administrative cases. Exhibits C and D. There are no pending cases at

the Board against either Dr. Jefferson or SAPA.

4. Given the foregoing, the Board believes that Dr. Jefferson’s cross-

appeal is moot. See Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126,

131 (Tex. App.—Austin 2007, no pet.) (“A case becomes moot when: (1) it appears

that one seeks to obtain a judgment on some controversy, when in reality none exists;

or (2) when one seeks a judgment on some matter which, when rendered for any

reason, cannot have any practical legal effect on a then-existing controversy.”). See

also In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (case moot

if controversy ceases to exist on appeal); Williams v. Lara, 52 S.W.3d 171, 184 (Tex.

2001) (controversy must exist between the parties at every stage of the legal

proceeding, including the appeal; if controversy ceases to exist, case becomes moot).

Should this Court determine that Dr. Jefferson’s cross-appeal is moot, the

Board submits that dismissal of her cross-appeal would be appropriate, with all

parties to bear their own costs and attorney’s fees.

Dated: November 5, 2015.

3

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.

Division Chief, Administrative Law Division

/s/ Ted A. Ross

Ted A. Ross

Assistant Attorney General

State Bar No. 24008890

OFFICE OF THE TEXAS ATTORNEY GENERAL

ADMINISTRATIVE LAW DIVISION

P. O. Box 12548

Austin, Texas 78711-2548

Telephone: (512) 475-4191

Facsimile: (512) 457-4674

Email: ted.ross@texasattorneygeneral.gov

Attorneys for Appellants/Cross-Appellees Texas

State Board of Veterinary Medical Examiners, and

Nicole Oria

4

CERTIFICATE OF SERVICE

I hereby certify that, in compliance with Rule 9.5 of the Texas Rules of

Appellate Procedure, a true and correct copy of the above and foregoing document

has been served on the following on this the 5th day of November 2015:

David F. Brown Via: Electronic Service and e-mail

dbrown@ebblaw.com

David P. Blanke

dblanke@ebblaw.com

Zeke DeRose III

zderose@ebblaw.com

111 Congress Avenue, 28th Floor

Austin, Texas 78701

Ryan Clinton

rdclinton@dgclaw.com

Davis, Gerald & Cremer, P.C.

111 Congress Avenue, Suite 1660

Austin, Texas 78701

Attorneys for Ellen Jefferson, D.V.M.

/s/ Ted A. Ross

Ted A. Ross

Assistant Attorney General

5

EXHIBIT A

SOAH DOCKET NOI XXX-XX-XXXX

TEXAS BOARD OF VETERINARY § BEFORE THE STATE OFFICE

MEDICAL EXAMINERS §

§ OF

V• §

§

ELLEN JEFFERSON, D.V.M. § ADMINISTRATIVE HEARINGS

ORDER NO. 9

RULING ON EXEMPTION QUESTION AND

REQUIRING THE PARTIES TO CONFER

I. PROCEDURAL HISTORY

This is an enforcement case brought by the staff (Staff) ofthe Texas Board of Veterinary

Medical Examiners (Board) against Ellen Jefferson, D.V.M. (Dr. Jefferson or Respondent).

Dr. Jefferson, a licensed veterinarian, is a board member and the executive director of

San Antonio Pets Alive! (SAPA), a nonprofit animal rescue organization. Staff alleges that

Dr. Jefferson, in her work connected with SAPA, violated: the Veterinary Licensing Act

l

(VLA); the Board's rules at title 22, chapter 573 of the Texas Administrative Code; and the

Texas Dangerous Drug Act (DDA). z Claiming a statutory exemption from the Board's authority,

Dr. Jefferson flied a Plea to the Jurisdiction Or, in the Alternative, Motion for Summary

Disposition.

On December 9, 2014, the undersigned Administrative Law Judge (ALJ) convened an

evidentiary hearing solely concerning the threshold question of whether the alleged acts and

omissions of Dr. Jefferson were exempt from enforcement by the Board) This order determines

that Dr. Jefferson's conduct was exempt from the Board's enforcement with respect to most, but

not all, ofthe allegations in this case.

1

Tex Oee. Code ch. 801.

2

Ten. Health & Safety Code ch. 483,

3

Both parties filed final briefs on the exemption issue on January 16, 2015.

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 2

Although the ALJ is persuaded, in large part, by Respondent's exemption argument, the

ALJ does not believe that either dismissal for want ofjurisdiction or summary disposition is the

appropriate procedural approach. 4 Instead, the ALJ is issuing this order explaining why

Dr. Jefferson's actions were exempt from discipline under the VLA with respect to many of the

allegations in Staff's pleading. As to those allegations, no further fact finding is necessary. As

to the remaining portion of the case, to which the exemption does not apply, adjudication--

involving ff•rther presentation of evidence is required. Accordingly, the ALJ will convene the

remainder of the hearing and then issue a proposal for decision that incorporates the findings and

analysis addressed in this order related to the exemption issue, as well as the issues that have yet

to be heard. At the end of this order are instructions to the parties concerning setting a hearing

date.

II. SAPA

The City of San Antonio transfers stray and abandoned dogs and cats to SAPA's

ownership after the city has become the owner of the animals by operation of law and the

animals are designated for euthanasia. SAPA then becomes the owner &the animals, caring for

them (in SAPA shelter facilities or through temporary, volunteer foster families) until the

animals" placement with permanent adoptive families. 5 Dr. Jefferson is the lead veterinarian at

SAPA.

At the time of the events at issue in this case, SAPA had two contract veterinarians

working part-time, as well as three veterinary technicians. • Dr. Jefferson was on-call twenty-

4

Summary disposition is not appropriate because the question of the application of the exemption involves disputed

facts, which is why an evidentiary hearing on the exemption question was required. See 1 Tex. Admin. Code

§ 155.505(a) ("Summary disposition shall be granted on all or part of a contested case if the pleadings, the motion

for summary disposition, and the summary disposition evidence show that there is no genuine issue as te any

material fact .... "). Dismissal is not the preferred option because it deprives the Board of the opportunity to

consider the legal issues involved in the exemption analysis.

s Pet. Exs. 7, 21; Resp. Exs. 5-6, 70. The City of San Antonio has

stated that the animals SAPA rescues from the

City's shelter "are permanent transfers to SAPA and its leader, Ellen Jefferson, D.V.M." Pet. Ex. 7 at 2.

Pet. Ex. 21 at 2.

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 3

four hours per day, seven days per week. 7 To address the veterinary needs of the SAPA rescue

animals, SAPA used a triage system, described by Dr. Jefferson as follows:

All animals are picked up from our clinic before going to foster. They are

evaluated by clinic staff before they are sent to foster honaes and any illnesses or

conditions that may warrant medical treatment are brought to the attention of a

veterinarian, either as soon as the condition is noted or the next thrte a

veterinarian is present. Alternatively, clinic staff has the additional option of

contacting me directly regarding the condition of any animal. The City shelter

veterinarians will often help triage more complicated cases ifthe SAPA! vet is not

there, as we share the same compound.

For animals in foster, we have foster liaisons who answer emails as volunteers at

fostermedical•_sanantoniopetsalive.org. Although these volunteers are not

veterinarians or veterinary technicians, they possess some knowledge in

veterinary practice. These volunteers answer emails •om fosters around the

clock, use their own phones for emergency calls, and text or call me with every

case on which they are contacted. We treat over 5,500 animals per year and,

because of our limited resources, this "triage" communication system that exists

between me and our volunteers is also necessary and critical to handle the volume

of questions and concerns that we receive from fosters. This triage system

historically has worked well and without incident. In this regard, I have instituted

protocols for care of routine illnesses that are common in a shelter environment,

to guide our volunteers and staff in their communications with fosters and in their

communications with me. s

Dr. Jefferson acknowledges that, under this triage system, she diagnosed and ordered

treatment for animals she did not personally examine.

III. THE STATUTORY CONTEXT OF THIS CASE

The VLA is the Board's organic act and is the source of the Board's authority to regulate

veterinarians and the practice of veterinary medicine. VLA § 801.251 states, "Except as

provided by Section 801.004, a person may not practice, or offer or attempt to practice,

7

Pet. E×. 21 at 2.

8

Pet. Ex. 21 at 2-3.

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 4

veterinary medicine unless the person holds a license to practice veterinary medicine issued

under this chapter. ''9

The VLA authorizes the Board to discipline a veterinary licensee for any of a number of

specified reasons, which include, among other conduct, engaging in illegal practices connected

with the practice of veterinary medicine l° and violating one of the Board's rules of professional

conduct at title 22, chapter 573 ofthe Texas Administrative Code. li As discussed in more detail

below, Staff asserts that the Board may discipline Dr. Jefferson for violating a number of Board

rules, violating provisions of the DDA related to the handling of dangerous medications, and

committing other acts or omissions specified under the VLA as bases for sanction.

The Board's disciplinary authority, however, is subject to a number of exemptions set out

in § 801.004 ofthe statute. One ofthose exemptions is at issue here. Dr. Jefferson contends that

her conduct at issue in this case falls under the following provision, informally known at the

"owner exemption":

This chapter does not apply to:

(1) the treatment or care of an animal in any manner by the owner of the

animal, an employee of the owner, or a designated caretaker of the animal,

unless the ownership, employment, or designation is established with the

intent to violate this chapter[.]

This language provides an exemption from the entire VLA. Therefore, the Board has no

authority to sanction a veterinarian for the described conduct, even if that conduct is an "illegal

9

"Practice of veterinary medicine" is defined under the VLA as including "the diagnosis, treatment, con-ection,

change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition,

including the prescription or administration of a drug, biologic, anesthetic, apparatus, or ether therapeutic or

diagnostic substance or technique." Tex. Occ. Code § 801.002(5)(A).

•0

Tex. Occ. Code § 801.402(4). See also 22 Tex, Admin. Code § 573.4 ('°No licensee shall commit any act that is

in violation of the laws of the State of Texas, other states, or of the United States, if the act is connected with the

licensee's professional practice.... A complaint, indictment, or conviction of a law violation is not necessary for

the enforcement of this rule. Proof of the commission of the act while in the practice of, or under the guise of the

practice of, either veterinary medicine or equine dentistry, is sufficient for action by the Board under this rule. '3

11

Tex. Occ. Code § 801.402(6).

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 5

practice" in violation of some other law (unless the other law gives the Board that authority, and

no such extra-VLA authority is cited by Staffin this case). To the eMent the evidence shows that

Dr. Jefferson's alleged acts or omissions come within the owner exemption, she must prevail as a

matter of taw. Dr. Jefferson argues that her SAPA work fell under the exemption because she

acted on behalf ofthe owner, was the designated caretaker ofthe owner, and was an employee of

the ovvaler.

The DDA requirements that Staff alleges were violated by Dr. Jefferson are in

subchapter C of chapter 483 of the Texas Health and Safety Code, which is criminal in nature. I2

If Dr. Jefferson is exempt from Board action for any acts alleged to have violated the DDA, she

would remain subject to possible criminal prosecution for any mishandling of prescription

medications. 13

IV. VIOLATIONS ALLEGED BY STAFF

Staff's Second Amended Notice of Hearing, its live pleading in this case, makes the

following allegations ofviolations:14

Dr. Jefferson diagnosed, and prescribed and dispensed medications for, Starlight (a dog)

and Cat A218328 without having examined the animals, in violation of VLA § 801.351,

and also dispensed prescription medications to SAPA volunteers prior to the

identification of any particular animal for treatment, and therefore in the absence of a

12

A person violating the requirements of § 483.042 commits a Class A misdemeanor.

,3

Likewise, if any of Dr. Jefferson's conduct at issue amounted to animal cruelty, she and/or SAPA would be

subject to possible criminal prosecution under chapter 42 of the Texas Penal Code (cruelty to nonlivestoek animals)

or action by local authorities pursuant to municipal ordinances. See Resp. Exs. 61-65. SAPA is also subject to the

regulatory jurisdiction of the Texas Department of State Health Services pursuant to chapter 823 of the Texas Health

and Safety Code (animal shelters). In addition, SAPA's contract with the City of San Antonio requires that the

animals be provided with food, water, shelter, and veterinary care, and the City inspects SAPA's facilities. Resp.

Exs. 5, 6; Tr. at 58, 62, 64.

14

Staff's allegations are lengthy_ See Second Amended Notice of Hearing at 13-18_ The ALJ has attempted to

distill the material elements into the bulleted list. The two named animals referenced in Staff's allegations, Starlight

and Cat A218328, died.

SOAH DOCKET NO, $78-I4-1546 ORDER NO. 9 PAGE 6

veterinarian-clierrt-patient relationship, in violation of VLA §§801.35115 and

801.402(13); 16

o Dr. Jefferson dispensed certain prescription medications for Starlight (Amoxicillin and

Tramadol) and other prescription medications (including Baytril and Clavanox) to SAPA

volunteers for other animals without proper labeling, in violation ofDDA § 483.042; 17

Dr. Jefferson failed to follow the proper standard of care, and engaged in a pattern of acts

indicating consistent malpractice, negligence, or incompetence, in treating Starlight, Cat

A218328, and other animals by diagnosing and treating them without examining them, in

violation of VLA 801.402(16) 18 and Board Rule 573.22; 19

Dr. Jefferson dispensed prescription medications (Amoxieillin, Tramadol, and Baytril)

without proper labeling• in violation of Board Rule 573.40; 20

Dr. Jefferson failed to establish a veterinarian-client-patient prior to prescribing,

dispensing, delivering, or ordering delivered prescription drugs for Starlight (Amoxicillin

and Tramadol) and for other animals (Baytril and Clavamox) and by prescribing,

dispensing, delivering, or ordering delivered prescription drugs that were not necessary or

15

Section 801.351 states that a person may not practice veterinary medicine unless a veterinarian-client-pattern

relationship exists, It further states that such a relationship requires, in part, that the veterinarian possesses sufficient

knowledge of the animal to initiate at least a general or preliminary diagnosis of the animal's medical condition. A

veterinarian possesses sufficient knowledge of the animal if the veterinarian has recently seen, or is personally

acquainted with, the keeping and care of the animal by examining the animal; or making medically appropriate and

timely visits to the premises on which the animal is kept. The statute also specifies that a veterinarian-client-patient

relationship may not be established solely by telephone or electronic means.

Staff also cites to VLA § 801.353, but this section concerns the confidential relationship between the vetennarian

and the veterinarian's client, and the ALJ sees no factual allegations related to this subject matter in Staff's Second

Amended Notice of Hearing.

•6

Section 801.402(13) provides that a veterinarian is subject to sanction for ordering a prescription drag or

controlled substance for the treatment of an animal without first establishing a veterinarian-client-patient

relationship.

17

DDA § 483.042 establishes the circumstances under which dangerous (prescription, non-controlled) drugs may

be properly delivered, including labeling requirements. Failure to comply is a criminal offense.

1,

VLA § 801.402(16) provides that a veterinarian is subject to sanction for committing a pattern of acts that

indicate consistent malpractice, negligence, or incompetence in the practice of veterinary medicine,

19

22 Tex. Admin. Code § 573.22 ("[Veterinary] [1]icensees shall exercise the same degree of humane care, skill,

and diligence in treating patients as are ordinarily used in the same or similar circumstances by average members of

the veterinary medical profession in good standing in the locality or community m which they practice, or in similar

communities.")

2o

22 Tax_ Admin. Code § 573.40 (requiring particular information on the labels of all medications dispensed by a

veterinarian).

SOAH DOCKET NO. $78-I4-1546 ORDER NO. 9 PAGE 7

required for the medical care of Starlight (Amoxicillin), in violation of Board Rule

573.41;21

Dr. Jefferson failed to keep proper records for Starlight, Cat A218328, and other patients,

in violation of Board Rule 573.52; 22 and

Dr. Jefferson informed the Board that she could not comply with its request for certain

information (contact information for several persons) because she did not have it, but she

later produced the responsive information, in violation of Board Rule 573.75. 23

All allegations except for the last one (the one related to compliance with a Board

investigation, which dates from 2013) concern events in 2012.

V. EXEMPTION ANALYSIS

A. Dr. Jefferson Has the Burden to Prove Her Acts Were Exempt from the VLA

In an enforcement ease such as this, where a regulatory agency seeks to take disciplinary

action against a licensee based on alleged violations of the laws governing such licensees, the

agency has the burden of proving its allegations by a preponderance of the evidence. However,

the licensee in this case seeks to invoke a statutory exemption to the regulatory scheme. The

ALJ determines that the burden of proving the applicability ofthe exemption is on Dr. Jefferson.

SOAH's procedural rules provide that, in determining who bears the burden of proof, the

ALJ shall consider the applicable statute, the referring agency's rules, and the referring agency's

21

22 Tex. Admin. Code § 573.41(estaNishing that it is unprofessional conduct for a veterinarian to prescribe,

administer, dispense, deliver, or order delivered any prescription drug without first having established a

veterinariardelient/patient relationship and determined that such prescription drug is therapeutically indicated for the

health and/or well-being of the animal(s))_ Staff also contends that the unnecessary prescription of Amoxicillin for

Starlight violated VLA § 801.402(12) (providing that a veterinarian is subject to sanction for prescribing

unnecessary treatment).

2•

22 Tex. Admin. Code § 573.52 (setting out requirements for veterinarian patient recordkeeping).

23

22 Tex. Admin. Code § 573_75 (providing that a veterinary licensee shall "cooperate fully with any Board

inspection or investigation').

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 8

policy. 24 The VLA and the Board's rules and policies are silent about the burden of proof as to

statutory exemptions. SOAH's rules further provide that, after considering those sources, the

judge may consider additional factors. Among those factors are the parties' relative access to

and control over information pertinent to the merits of the case and whether a party would be

required to prove a negative. The applicability of the exemption at issue relates to

Dr. Jefferson's status vis-it-vis SAPA and the animals it rescues--matters about which

Dr. Jefferson, and not the Board, has pertinent information. It makes more sense to require

Dr. Jefferson to prove that her acts fell wifllin the exemption than it does to require Staff to

negate the applicability of the exemption, i,e., to prove a negative, Moreover, claiming an

exemption is like raising an affirmative defense, the burden of which to plead and prove is

usually on the party urging the defense. For these reasons, the ALI places the burden of proof on

Dr. Jefferson with respect to the exemption issue. And, as there is no reason to deviate from the

usual standard of proof applicable in administrative hearings, the ALJ determines that

Dr. Jefferson must prove the applicability ofthe exemption by a preponderance ofthe evidence.

B. Evidence

Dr. Jefferson presented the testimony of the following witnesses:

t Kathy Davis, San Antonio's Director of Animal Care Services;

¯ Tom Albright, a former board member of Austin Pets Alive! (APA) and a founder

and present board member of SAPA; and

¯ Dr. Jefferson.

Both parties offered documentary evidence, including SAPA corporate and financial

materials.

24

1 Tex. Admin. Code § 155.427.

SOAH DOCKET NO, XXX-XX-XXXX ORDER NO. 9 PAGE 9

C. The Reason for the Owner Exemption

Dr. Jefferson argues persuasively that the primary concern of the VLA is the protection

of animal owners who seek competent veterinary care for their animals. This argument is borne

out by the Board's mission statement: "The mission of the Texas State Board of Veterinary

Medical Examiners is to establish and enforce policies to ensure the best possible quality of

veterinary services for the people of Texas. ''25 Likewise, the Board's goals are to "ensure that

Texans are effectively and efficiently served by quality veterinary professionals by setting clear

standards for professional conduct, by assuring compliance with the rules of professional

conduct and the community standard of care, and seeking solutions to issues that strengthen the

profession and protect the public. "26 The owner exemption is understandable in light of the

people-oriented nature of the VLA and the Board; client-owners who do not hire outside

veterinary care need no protection and may treat their animals as they choose, subject to animal

cruelty prohibitions.

D. SAPA, as Owner of the Animals, Cared For and Treated Them Through

Dr. Jefferson

It is undisputed that SAPA owns the animals it rescues and owned the animals referenced

in Staff's Second Amended Notice of Hearing. 27 SAPA is a nonprofit corporation. 28

In 2012, Dr. Jefferson, who was already the execmive director of APA, founded SAPA

(along with Mr. Albright). 29 During 2012, there were three board members, one of whom was

Dr. Jefferson. Dr. Jefferson was (and continues to be) the executive director of the organization.

In 2012, she was also the only executive staff, and she was in charge ofthe paid staff members. 30

25

Resp. Ex. 20 at 665 (emphasis added).

26

Resp, Ex. 20 at 665 (emphasis added).

27

Resp. Ex, 70.

28

Pet. Exs. 13, 14_

29

Rezp. Ex, 2; Resp. Ex. 71 at 8-9.

•0

Tr. at 198.

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 10

She authored the care and treatment protocols used by SAPA staffand volunteers. 31 She was the

designated representative and signatory of SAPA's tax documents. 32 She was the signatory for

the lease ofits shelter space. 33

SAPA's care and treatment of animals it owned were exempt •om the VLA. SAPA's

mission is to take animals on the euthanasia list maintained by San Antonio Animal Care

Services and place them in adoptive homes. 34 This process necessarily involves the care and

treatment of the animals. As a nonprofit corporation, SAPA can only effect the treahnent and

care of its animals through the humans who comprise the corporation, And the acts of a

corporate agent on behalf of his or her principal are ordinarily deemed to be the corporation's

acts. 35 In 2012, Dr. Jefferson, as founder, executive director, board member, and author of the

organization's care and treatment protocols, was more directly associated with the organization

than any other person. In her mission-critical functions, her actions were the actions of SAPA.

Dr. Jefferson's alleged VLA violations all occurred in the context of SAPA's care of the animals.

The ALJ can see no legal or logical reason for concluding that Dr. Jefferson's care and treatment

of the animals was somehow distinct from SAPA's care and treatment of the animals. They

were one and the same.

Further militating in favor of this interpretation of the exemption is the fact that, in the

context of SAPA's work, the VLA's requirement of a veterinarian-client-patient relationship

makes no sense. The veterinarian, Dr. Jefferson, founded, directs, operates, and carries out the

mission of SAPA. There is no separate client who has hired a veterinarian in an arm's-length

transaction and whose interests must be protected by the Board through the VLA. If

Dr. Jefferson were regarded as distinct from SAPA for purposes of this analysis, a valid

veterinarian-client-patient relationship would require that, as to each animal, the client, which

Jt

Tr. at58-9, 199.

32

Pet. Exz. 13, 15; Resp. Ex. 4.

33

Resp. Ex. 8_

34

Resp. Ex. 21 at 1,

• Latch v. Gra•yo ln c., 107 S.W.3d 543, 545 (Tex, 2003).

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 11

would likely be SAPA's sole executive staffer (Dr. Jefferson) or possibly the SAPA board of

directors (Dr. Jefferson and two others) would agree to follow the instructions of the veterinarian

(Dr. Jefferson). 36 The application of this idea to the context of this case is nonsensical because

there is only SAPA, caring for its own animats though its chief agent, Dr. Jefferson.

Finally, Staff's argument that Dr. Jefferson's conduct is not subject to the owner

exemption because § 801.004(1) does not specify "owner's agent" is not persuasive. First, there

was no need because, as discussed above, the law recognizes that a corporation can only act

through humans. Second, the term "designated caretaker" (discussed below) is synonymous in

this context with "agent," for what is a designated caretaker of animals but an agent for the care

and treatment of animals?

E. Dr, Jefferson Was a Designated Caretaker of SAPA's Animals

As noted above, VLA § 801.004(1) also exempts the care and treatment of animals, not

just by the owner, but by "a designated caretaker." This term is not defined, and the statute

establishes no process for the designation of a caretaker. Staff argues that the phrase cannot refer

to Dr. Jefferson because, if it did, it would extend to all veterinarians caring for animals in any

capacity other than as direct employees of owners. Part of the difficulty with Staff's argument is

that it only asserts Dr. Jeffei•on was not a designated caretaker of SAPA' s animals, and it fails to

advance a theory about what the phrase was intended to encompass.

The only logical interpretation for "designated caretaker" is that it means an agent ofthe

owner selected 1o provide care or treatment of the owner's animal. An agent in this context

would not include a veterinarian hired by an owner as an independent contractor in an arm's

length transaction. Staff correctly points out that including such fee-for-service veterinarians in

the meaning of"designated caretaker" would swallow most of the Board's regulatory authority;

that result cannot have been intended by the Legislature. But Dr. Jefferson's care and treatment

•6

Tex. Health & Safety Code § 801.351 ('°A veterinarian-client-patient relationship exists if the veterinarian:

(1) assumes responsibility for medica! judgments regarding the health of an animal and a client, wlae is the owner er

other caretaker of the animal, agrees to fo!low the veterinarian's instructions ")

....

SOAH DOCKET NO. 578-i4-1546 ORDER NO. 9 PAGE 12

of SAPA's animals was not as a fee-for-service independent contractor, but rather was an

integral part of the inner workings of SAPA. It therefore makes sense to include Dr. Jefferson's

SAPA work as falling within the

owner exemption. That other individuals (such as SAPA

volunteers and fosters actively involved m the care ofthe animals 37) might, arguably, also have

been caretakers for SAPA's animals does not mean that Dr. Jefferson's actions did not come

within the exemption. The statute refers to "a designated caretaker, "'3s not "the designated

caretaker," implying that there could be more than one such caretaker for an animal. 39 Finally,

Staff's suggestion that a caretaker designation must occur through a written document is

unsupported by any statutory language. 4°

F. Dr. Jefferson's Employee Status Was Not Established

Dr. Jefferson asserts that she was SAPA's employee. "Employee" is not defined in this

context, but Staff persuasively argues that the ordinary meaning of the word is a person working

for someone else for pay. 41 Dr. Jefferson has not established by a preponderance of the evidence

that SAPA paid her for her work.

The evidence about Dr. Jefferson's remuneration is conflicting. On the one hand, she

testified that, during the time at issue, she was paid for her work as the SAPA executive director

by APA at SAPA's request because APA (the older and more established institution) had the

administrative machinery to handle the funds. 42 The record includes an undated, handwritten

document, signed by Dr. Jefferson and Mr. Albright for SAPA and by a representative of APA,

37

The ALJ is not suggesting that, in the words of Staff, "any person who helps out at SAPA" is exempt from the

Act. Petitioner's Closing Brief at 9-10. Rather, the exemption might extend to any person at SAPA who acts as part

of the organization's system of triage and animal care_

32

Emphasis added.

39

TEn 2014, SAPA's Board issued a formal, ostensibly retroactive designation of Dr. Jefferson as a caretaker of

SAPA's animals, apparently to settle the question of the organization's intent. Resp. Ex. 43. Because the document

was issued well after the events at issue in this case, the ALJ gives it little weight.

40

Staff also argues that Dr. Jefferson did not care for the animals at issue and therefore could not have been their

caretaker_ But this argument contradicts Staff's contention that Dr. Jefferson treated the animals.

41

See Pet. Ex, 12.

42

Tr. at 98-99, 144+

SOAH DOCKET NO. 578-I4-1546 ORDER NOt 9 PAGE 13

stating that SAPA agreed to pay $200,000 to APA for various kinds of administrative support in

2012.43 Although the agreement reflects a "start date" of January 1, 2012, Mr. Albright testified

that the agreement was actually signed in September 2012. 44 The agreement makes no mention

of Dr. Jefferson's salary. Dr. Jefferson testified that a $35°000 portion of the $200,000 from

SAPA to APA was for her work as the SAPA executive director and that APA then paid that

$35,000 to her. 4• Mr. Albright also implied that a portion of the $200,000 went toward

Dr. Jefferson's salary. 46 The record further includes an undated invoice from APA to SAPA for

a total of $200,000, with $35,000 designated for Executive Director services. 47

However, there is no corresponding check or other evidence of payment of the $200,000

from SAPA to APA. Nor is there any check or W-2 form reflecting payment to Dr. Jefferson of

a salat-y from SAPA; she testified that the amounts for her SAPA work were included in her W-2

form from APA. 4s Further, SAPA's lax return for 2012 states that SAPA paid no compensation

to Dr. Jefferson. 49 Dr. Jefferson testified that this was a mistake: °

The evidence on the question of whether Dr. Jefferson was a paid employee of SAPA in

2012 is too contradictory for the ALJ to fred that Dr. Jefferson has met her burden of proof on

this issue.

4•

Resp. Ex, 54 (front),

44

Resp. E×. 71 at 40-42.

4•

Tr. at 98.

a6

Resp. Ex. 71 at 8-11.

47

tLesp, Ex. 54 (back). It is tmdear whether the two (front and back) pages of Respondent's Exhibit 54 were

created as parts of the same document.

4s

Tr. at 199-200.

4•

Pet, Ex, 13,

•° Tr,

at 99-100.

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 14

G. Ownership or Caretaker Status Was Not Established With Intent to Circumvent

VLA

Staff argues that SAPA's ownership of the dogs and cats at issue, and Dr, Jefferson's

agency and caretaker status (if they exist), were established with intent to circumvent the VLA,

and the exemption therefore does not apply. 5• Staff suggests that SAPA's triage system is a

scheme to circumvent the VLA.

The evidence establishes that the purpose of SAPA's ownership of the animals is to

prevent their being euthanized, and the purpose of Dr. Jefferson's designation as a caretaker of

the animals is to afford them, through SAPA's triage system, the level of veterinary care SAPA

can afford. The owner exemption gives SAPA the freedom to determine what level of veterinary

care it wil! provide to its own animals (subject to state animal cruelty prohibitions, chapter 823

of the Texas Health and Safety Code, municipal ordinances, and SAPA's contractual obligations

to the City of San Antonio). Staff's apparently circular argument that anyone operating under

the owner exemption is trying to circumvent the VLA would eliminate the exemption. SAPA

and Dr. Jefferson took custody of the animals and provided them with care in order to prevent

euthanasia, and the fact that SAPA seeks to take advantage of the owner exemption does not

change their goal.

Making Staff" s position on the circumvention question even more puzzling is a newsletter

issued by the Board's Executive Director in 2012 actually stating that animal shelters, once they

own the animals in their care, can rely on the owner exemption. The Fall 2012 BoardNotes

states that, after an animal shelter takes ownership, the owner exemption applies:

After the time period for holding the animal has elapsed, usually three days and

set by local ordinance, then the shelter may claim the animal is abandoned and the

shelter is the owner. Under Texas law, an animal's owner or a caretaker

designated by the owner can perform acts of veterinary medicine on the animal

n Again, the exemption covers "the treatment or care of an

animal in any mariner by the owner of the animal, an

employee of the owner, or a designated caretaker of the animal, unless the ownership, employment, or designation is

established with the intent to violate this chapter[.]" Tex. Occ. Code § 801.004(1) (emphasis added).

SOA.I-I DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 15

without involving a veterinarian and without concern for establishing a

veterinarian, client-patient relationship, because the owners and caretakers are

s2

exempt from the Veterinary Licensing Act.

This statement, made roughly contemporaneously with the events at issue in this case,

jibes with Dr. Jefferson's view of the owner exemption and its applicability to shelters.

Dr. Jefferson testified that this statement, which she read when it was issued, confirmed her

understanding that SAPA's procedures complied with the VLA. 53

Hg "Care or Treatment of an Animal"--Alleged Failure to. Cooperate with Board

Investigation and DDA Violations Not Exempt

In order for the owner exemption to apply, the conduct at issue must have constituted

"the treatment or care of an animal. "54 One of Staff's allegations is completely unrelated to

Dr. Jefferson's treatment of care of an animal: the allegation that Dr. Jefferson failed to

cooperate fully with a Board investigation. There is no question that the owner exemption does

not apply to this assertion.

Further, a Travis Coumy District Court, in litigation related to this contested case hearing

process, determined that the owner exemption does not prohibit the Board from taking

enforcement action against Dr. Jefferson based on alleged violations of the DDA in connection

with her handling and/or labeling of prescription medicationsf 5 In making this determination,

the Court must have concluded that any alleged failure to hmadle medications in compliance with

the DDA is distinct from the "treatment or care of an animal"; otherwise, the actions would be

exempt from the Board's enforcement (provided that the other elements of the exemption are

present). Accordingly, litigation of these allegations is necessary.

s2

Resp. Ex. 18.

53

Tr. at 114-16.

54

Te×. Occ. Code § 801,004(1).

55

Pet. Ex. 25.

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 9 PAGE 16

The remainder of the allegations in this case concern conduct by Dr. Jefferson in the

context of SAPA's treatment and care of its animals.

I. Summary

All of Staff's allegations in this case relate to alleged conduct by Dr. Jefferson that is

exempt from the VLA under § 801.004(1), the owner exemption, except for the following

allegations that:

Dr. Jefferson dispensed prescription medications for Starlight (Amoxicillin and

Tramadol) and other prescription medications (including Baytril and Clavanox) to

SAPA volunteers for other animals without proper labeling, in violation of DDA

§ 483.042; 56 and

Dr. Jefferson informed the Board that she could not comply with its request for

certain information (contact information for several persons) because she did not

have it, but she later produced the responsive information, in violation of Board

Rule 573.75. 57

VI, REQUIRING THE PARTIES TO CONFER

The parties shall confer and, no later than March I1, 2015, submit to the ALJ at least

two agreed dates for the resumption ofthe hearing onthe merits.

SIGNED February 25, 2015.

SHANNON KILGORE

ADMINISTRATIVE LAW JUDGE

STATE OFFICE OF ADMINISTRATIVE HEARINGS

5n

DDA § 483.042 establishes the circumstances under which dangerous (prescription, non-controlled) drugs may

be properly delivered, including labeling requirements.

•7

22 Tex. Admin. Code § 573.75 (providing that a veterinary licensee shall "cooperate fully with any Board

inspection or investigation").

EXHIBIT B

SOAH DOCKET NO. XXX-XX-XXXX

TEXAS BOARD OF VETERINARY § BEFORE THE STATE OFFICE

MEDICAL EXAMINERS §

§ OF

V. §

§

ELLEN JEFFERSON, D.V.M. § ADMINISTRATIVE HEARINGS

ORDER NO. 14

REFERRING CASE FOR MEDIATION EVALUATION

The hearing on the merits is set to resume on August 12-13, 2015. It a recent motion, the

staff of the Texas Board of Veterinary Medical Examiners indicated that the parties will attempt

to seek a mutually agreed outcome to this contested case. In light of the parties' plan to explore

settlement, the Administrative Law Judge (ALJ) is referring this matter to the Alternative

Dispute Resolution Team of the State Office of Administrative Hearings (SOAH) for a

mediation evaluation. No party to this case is compelled to participate in mediation. Pursuant

to this referral,a SOAH mediator will contact the parties, assess the case to determine whether

mediation would be helpfull and ascertain ifthe parties are interested in pursuing mediation. Ifa

party declines to participate in mediation or the mediator determines that mediation would not be

appropriate or helpful, the case will be returned to the undersigned ALJ. This order does not

affect the hearing setting.

IT IS, THEREFORE, ORDERED:

,

This case is referred to SOAH's Alternative Dispute Resolution Team Leader,

Howard S. Seitzman, for appointment of a mediator and a period of evaluation

and/or mediation. With the issuance of this Order, the official file in this case is

transferred to Judge Seitzman. The mediator/evaluator will be eontaeting the

parties directly.

1 If the mediator/evaluator determines that mediation is appropriate, the mediator

will schedule a mediation in consultation with the parties.

SOAH DOCKET NO. XXX-XX-XXXX ORDER NO. 14 PAGE 2

,

Ifthe mediator/evaluator schedules a mediation, the parties are ordered to appear

at the mediation with a party representative (in addition to the attorney) who has

full settlement authority for this matter.

,

The ease shall be returned to the presiding Aid by August 7, 2015, unless the

deadline is extended by order ofthe presiding ALL

SIGNED June 17, 2015.

SHANNON KILGORE

ADMINISTRATIVE LAW JUDGE

STATE OFFICE OF ADMINISTRATIVE HEARINGS

EXHIBIT C

2015/10/20 15:20:14 2 /3

SOAH DOCKET NO. XXX-XX-XXXX

TEXAS BOARD OF VETERINARY § BEFORE THE STATE OFFICE

MEDICAL EXAMINERS §

§ OF

Vo §

§

ELLEN JEFFERSON, D.V.M. § ADMINISTRATIVE HEARINGS

ORDER NO. 16

DISMISSING CASE

There is no pending hearing setting in this case, which was previously refen'ed for

mediation. The mediators have reported that the dispute has been resolved. Further, the staff of

the Texas State Board of Veterinaly Medical Examiners has filed a motion to dismiss this case

with prejudice from the docket of the State Office of Administrative Hearings. The motion is

granted.

SIGNED October 20, 2015.

SHANNON KILGORE

ADMINISTRATIVE LAW JUDGE

STATE OFFICE OF ADMINISTRATIVE ItEARINGS

EXHIBIT D

TEXAS BOARD OF

VETERINARY MEDICAL EXAMINERS

October 20, 2015

David F Brown

111 Congress Ave 28• Floor

Austin TX 78701

Re: Case No: 578CP14000520

Ellen •efferson. D•4

Dear Dr Jefferson:

This letter is to inform you that case 578CP14000520 has been closed due to insufficient evidence.

After review of all documentation and statements, it was determined that there is insufficient

evidence to prove a violation of the Veterinary Licensing Act or the Rules of Professional Conduct.

This case will be closed and no further action will be taken. Please do not hesitate to contact me

with any questions.

Sincerely, ...

Karen Phillips

Director of Enforcement

KP/pg

RECEIVED

OCT 2 6 2015

OFFICE OF THE ATTORNEY GENERAl.

•tST•TP•E LAW DMSION

333 GUADALLrPE, SUITE 3-B 10-&USTIN, TEXAS 78701-3942

TELEPHONE: (512) 305-7555 Eirmil: vet,board(•tbvme,state.tx,us

Main FAX: {512) 305-7556 Enforcement F.•f: (512} 936.0837 Legal FAX: 15121305-7574

@ TEXAS BOARD OF

VETERINARY MEDICAL EXAMINERS

October 20, 2015

David F Brown

111 Congress Ave 28 th Floor

Austin TX 78701

Re: Case No: 578CP14000523

Ellen Jefferson, DVM

Dear Dr Jefferson:

This letter is to inform you that case 578CP14000523 has been closed due to insufficient evidence.

After review of all documentation and statements, it was determined that there is insufficient

evidence to prove a violation of the Veterinary Licensing Act or the Rules of Professional Conduct.

This case will be closed and no further action will be taken. Please do not hesitate to contact me

with any questions.

Sincerely,

Karen Phillips

Director of Enforcement

KP/pg

333 GUADALUPE, SUITE 3-• 10-AUSTIN. TEXAS 7g70t-39#2

TELEPHONE: (512) 305-3555 Fanail: va•.board•tbvme,smte.•.us

Maia FAX: (512} 305-7556 Enforcement FAX: (512) 936-0837 l•gal FAX: (512) 305-7574