The opinion
ACCEPTED
03-15-00262-CV
7892586
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/18/2015 4:14:22 PM
No. 03-15-00262-CV JEFFREY D. KYLE
CLERK
In the
Third Court of Appeals RECEIVED IN
3rd COURT OF APPEALS
Of Texas AUSTIN, TEXAS
11/18/2015 4:14:22 PM
TEXAS ASSOCIATION OF JEFFREY D. KYLE
Clerk
ACUPUNCTURE AND ORIENTAL MEDICINE
Appellants,
V.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS
AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR
IN HER OFFICIAL CAPACITY,
Appellees
st
On Appeal from the 261 Judicial District Court of Travis County, Texas
Cause No. D-1-GN 12-00107
TEXAS CHIROPRACTIC ASSOCIATION (TCA) AND
AMERICAN CHIROPRACTIC ASSOCIATION (ACA)
AMICUS CURIAE BRIEF IN SUPPORT OF APPELLEES
Respectfully submitted,
Jason Ray
Bar No. 24000511
RIGGS & RAY, P.C.
506 West 14th Street, Suite A
Austin, TX 78701
512 457-9806 Phone
512 457-9066 FAX
jray@r-alaw.com
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................. ii
TABLE OF AUTHORITIES ...................................................................... iii
DISCLOSURE OF INTEREST ...................................................................... iv
SUMMARY OF ARGUMENT .................................................................... 1
ARGUMENT AND AUTHORITIES .......................................................... 2
PRAYER .................................................................................................... 7
CERTIFICATE OF COMPLIANCE ......................................................... 8
CERTIFICATE OF SERVICE ................................................................... 8
Amicus in Support of Appellee TBCE
Page ii
TABLE OF AUTHORITIES
Cases
Entergy Gulf States, Inc. v. Summers,
282 S.W.3d 433, (Tex. 2009) .......................................................................... 3
RepublicBank Dallas, N.A. v. Interkal, Inc.,
691 S.W.2d 605 (Tex. 1985) ........................................................................... 4
St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997) .................. 4
Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920) ....................................... 4
Texas Bd. of Chiropractic Examiners v. Texas Med. Ass'n,
375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied) ................................ 3
Texas Orthopaedic Ass'n v. Texas State Bd. of Podiatric Med. Examiners,
254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) ............................... 2
STATUTES
TEX. OCC. CODE § 205.001(2) ................................................................................... 4
TEX. OCC. CODE ch. 155 ............................................................................................ 3
TEX. OCC. CODE § 165.003 ........................................................................................ 6
TEX. OCC. CODE § 165.152 ........................................................................................ 6
TEX. OCC. CODE § 165.153 ........................................................................................ 6
SECONDARY SOURCES
Chiropractic Board Rule 78.14(a) .............................................................................. 5
Amicus in Support of Appellee TBCE
Page iii
DISCLOSURE OF INTEREST
On behalf of Amicus Curiae, I certify that no persons other than the Texas
Chiropractic Association and the American Chiropractic Association have made
any monetary contribution to the preparation or submission of this Amicus brief.
Amicus in Support of Appellee TBCE
Page iv
SUMMARY OF ARGUMENT
This firm represents the Texas Chiropractic Association (TCA) and the
American Chiropractic Association (ACA) regarding their respective members’
interest in this appeal. TCA is the state’s largest chiropractic association,
representing Texas’ 5,300 licensed doctors of chiropractic. ACA is the nation’s
largest chiropractic association, representing licensed doctors of chiropractic and
students enrolled in chiropractic colleges, including over 1,000 Texas members.
Many of these doctors of chiropractic regularly utilize chiropractic acupuncture as
part of improving the biomechanics of the musculoskeletal system. Through this
amicus brief, TCA and ACA urge this Court to leave the scope of chiropractic in
Texas—a scope which has historically included limited acupuncture—unchanged,
by affirming the trial court.
Amicus in Support of Appellee TBCE
Page 1
ARGUMENT AND AUTHORITIES
All TAAOM-aligned arguments suffer from the same two errors:
1) they seek to define acupuncture and chiropractic as unique and non-
duplicative, when it is undisputed that the scope of chiropractic overlaps
with other medical disciplines, and
2) they refuse to acknowledge that acupuncture can fit within the
therapeutic methods permitted by chiropractic, so long as the acupuncture
is used to treat a condition that improves a subluxation or biomechanical
condition of the musculoskeletal system.
Neither the TAAOM’s brief nor the five previously-filed amicus briefs in
this appeal accurately recite the chiropractic scope defined by the Texas
Legislature. Specifically, all TAAOM-aligned briefs ignore the fact that the statute
defines the chiropractic scope to include any nonsurgical, nonincisive procedure
that improves a subluxation complex or the biomechanics of the musculoskeletal
system. The phrase “nonsurgical, nonincisive procedure” is quite broad. It
necessarily includes treatment that is immediately recognizable as a stereotypical
chiropractic adjustment, but the phrase also captures therapeutic approaches that
are ordinarily found in other disciplines of medicine.
The practice of medicine contains many disciplines whose scopes
necessarily overlap. Podiatrists and orthopedic surgeons often perform the exact
same surgeries, and this court has addressed that turf war. Texas Orthopaedic Ass'n
Amicus in Support of Appellee TBCE
Page 2
v. Texas State Bd. of Podiatric Med. Examiners, 254 S.W.3d 714, 717 (Tex.
App.—Austin 2008, pet. denied) (acknowledging overlap of the occupations in
treating feet). Chiropractors and medical doctors have a scope of practice that
allows both professions to diagnose and treat diseases that affect the
musculoskeletal system. Texas Bd. of Chiropractic Examiners v. Texas Med. Ass'n,
375 S.W.3d 464, 493 (Tex. App.—Austin 2012, pet. denied). Like chiropractors,
medical doctors and osteopathic physicians may practice acupuncture. TEX. OCC.
CODE ch. 155. It is simply wishful thinking for the TAAOM to claim that
acupuncture is a distinct specialty that can only be practiced by licensed
acupuncturists.
The TAAOM’s brief speaks to the nature of needles, whether acupuncture or
otherwise; all of its arguments on this issue are unnecessary. This court need not
question whether acupuncture needles violate the “nonsurgical, nonincisive”
constraints for chiropractic treatments. Simply put, acupuncture needles are
nonincisive because the Texas Legislature says so. “Ascertaining the meaning of a
statutory text (or any text for that matter) begins with the language used, and if that
language is plain enough, absent some obvious error or an absurd result, that is
where the task ends. It matters not what someone thinks the text may have meant
to say or now hopes or wishes it said. To look beyond the plain language risks
usurping authorship in the name of interpretation.” Entergy Gulf States, Inc. v.
Amicus in Support of Appellee TBCE
Page 3
Summers, 282 S.W.3d 433, 445 (Tex. 2009) (J. Hecht, concurring)1. It would be
contrary to statute for this Court to determine that regardless of the express
language of Acupuncture Act § 205.001(2), the use of acupuncture needles in the
hands of a chiropractor somehow renders the treatment “incisive.” It would be
equally imprudent for this Court to conclude that the use of a nonincisive
procedure administered by a chiropractor to address a biomechanical problem in
the musculoskeletal system of a chiropractic patient is somehow outside the scope
of practice simply because that procedure is typically administered by a separately
licensed occupation. Common sense tells us that all needles are, by their nature,
incisive, but the Texas Legislature has expressly carved out an exception for
acupuncture needles. That means “acupuncture needles” are not needles when used
to perform acupuncture. This redefinition of acupuncture needles essentially
removes the only impediment to their use by chiropractors; thus, acupuncture
needles are simply another tool that may be used in chiropractic.
1
Justice Hecht’s concurrence highlights the Texas Supreme Court’s storied hesitance to depart
from the plain language of a statute, as far back as the 1920 case of Simmons v. Arnim, 110 Tex.
309, 220 S.W. 66, 70 (1920): “Courts must take statutes as they find them. More than that, they
should be willing to take them as they find them. They should search out carefully the
intendment of a statute, giving full effect to all of its terms. But they must find its intent in its
language, and not elsewhere. They are not the law-making body. They are not responsible for
omissions in legislation. They are responsible for a true and fair interpretation of the written law.
It must be an interpretation which expresses only the will of the makers of the law, not forced
nor strained, but simply such as the words of the law in their plain sense fairly sanction and will
clearly sustain.” quoted in St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.
1997), RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985).
Amicus in Support of Appellee TBCE
Page 4
TCA and ACA disagree with TAAOM’s argument that “acupuncture cannot
be included within the statutory scope of chiropractic because [TAAOM believes]
acupuncture is not limited to treatment of the musculoskeletal system…” TAAOM
brief, at page 26. Chiropractic acupuncture is a subset of full-scope Acupuncture-
Board regulated acupuncture. Chiropractic Board Rule 78.14(a) recognizes that
any “therapeutic modalities” regarding acupuncture “must comply with the
chiropractic scope of practice.” Chiropractors constrain their advice and treatment,
much of which comes from related and overlapping health care professions, to
their scope of practice every day. Just because a chiropractor gives dietary advice
to a patient with muscular pain as a result of a neuropathy does not mean the
chiropractor is infringing on the area regulated by the Texas State Board of
Examiners of Dietitians. Advice and treatment to correct musculoskeletal
weaknesses do not implicate an athletic trainer license, a massage therapist license
or any license issued by the Executive Council of Physical Therapy Examiners.
And acupuncture to correct a musculoskeletal problem does not improperly
infringe on full-scope acupuncture, which can be used to address everything from
asthma, allergies and other immune disorders, to hormone imbalances, digestive
issues, and high blood pressure, all of which is outside chiropractic scope.
Finally, it bears mentioning that Texas chiropractors would face a disastrous
avalanche of tort cases if this Court accepted the TAAOM’s argument that
chiropractic acupuncture (e.g. to correct musculoskeletal condition) is outside the
Amicus in Support of Appellee TBCE
Page 5
scope of chiropractic. Thousands of chiropractors who have properly utilized
acupuncture for years, and who have done so pursuant to the State Board’s
direction and rules, would find themselves facing civil tort claims, administrative
claims, and criminal charges for the unlicensed practice of medicine. TEX. OCC.
CODE § 165.003 (administrative penalty of up to $5000 per violation for unlicensed
practice of medicine); § 165.152, .153 (unlicensed practice of medicine is a
felony).
The chiropractic amicus briefs ignore the statutory definition of chiropractic
and acupuncture.
The amicus brief from the Chiropractic Society of Texas argues that
acupuncture uses “needles to treat patients, with no regard for a vertebral
subluxation, thereby not qualifying under [the Chiropractic Society of Texas’]
definition of subluxation.” CST brief, page 2. That position ignores two important
facts. First, the statutory definition of chiropractic in Texas is not limited to just
subluxations, much less vertebral (that is, spinal) subluxation. Texas chiropractors
can treat any number of subluxations—more commonly known as dislocations,
fixations, and malpositions—anywhere in the body, as well as any condition that
affects the general biomechanics of the musculoskeletal system. Second, the
Chiropractic Society of Texas’ amicus brief ignores the reality that acupuncture is
a type of physical manipulation that can improve the biomechanics of the
musculoskeletal system. Simply put, the Chiropractic Society of Texas’ argument
Amicus in Support of Appellee TBCE
Page 6
is rooted in a characterization of chiropractic that is much narrower than the
statutory definition.
The International Federation of Chiropractors and Organizations’ amicus
brief is similarly postured, because that organization views the chiropractic scope
to be limited to “the detection and correction of vertebral subluxation.” IFCO brief,
page 1. That definition is simply much narrower than the scope of chiropractic in
Texas.
In closing, TCA and ACA believe the plain language of both Acupuncture
Act and the Chiropractic Act dictates an obvious and reasonable resolution of this
appeal. Given that acupuncture needles are not incisive, chiropractors may utilize
them to perform treatment that would otherwise be within the scope of
chiropractic.
PRAYER
For these reasons, the Texas Chiropractic Association and the American
Chiropractic Association, as Amicus Curiae, urge this Court to uphold the decision
of the trial court.
Respectfully submitted,
________________________
Jason Ray
on behalf of the Texas Chiropractic Association
and the American Chiropractic Association
Amicus in Support of Appellee TBCE
Page 7
CERTIFICATE OF COMPLIANCE
I certify on behalf of Amicus Curiae, that this Amicus contains 1466 words
according to the word count feature of the Microsoft Word software used to
prepare this Amicus brief.
_______________________
Jason Ray
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing Amicus brief has
been served to all attorneys of record as listed below via e-mail on November 18,
2015:
Joe H. Thrash Craig T. Enoch
Assistant Attorney General Enoch Kever, PLLC
Administrative Law Division 600 Congress Ave., Ste. 2800
P. O. Box 12548 Austin, Texas 78701
Austin, Texas 78711 cenoch@enochkever.com
Joe.Thrash@texasattorneygeneral.gov
________________________
Jason Ray
Amicus in Support of Appellee TBCE
Page 8