The opinion
ACCEPTED
03-15-00262-CV
7824224
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/13/2015 2:40:08 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00262-CV
_______________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 11/13/2015 2:40:08 PM
AT AUSTIN JEFFREY D. KYLE
Clerk
_______________________________________________________________
TEXAS ASSOCIATION OF ACUPUNCTURE
AND ORIENTAL MEDICINE,
Appellant,
v.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND
YVETTE YARBROUGH, EXECUTIVE DIRECTOR
IN HER OFFICIAL CAPACITY,
Appellees.
________________________________________________________________
On Appeal from the 201st Judicial District Court
Of Travis County, Texas
Cause No. D-1-GN-14-000355
__________________________________________________________________
APPELLEES’ SECOND MOTION TO STRIKE
__________________________________________________________________
KEN PAXTON JOE H. THRASH
Attorney General of Texas Assistant Attorney General
State Bar No. 19995500
CHARLES E. ROY Administrative Law Division
First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF
TEXAS
JAMES E. DAVIS P.O. Box 12548, Capitol Station
Deputy Attorney General for Civil Austin, Texas 78711-2548
Litigation Telephone: (512) 475-4203
Facsimile: (512) 320-0167
DAVID A. TALBOT, JR. Joe.Thrash@texasattorneygeneral.gov
Chief, Administrative Law Division
ATTORNEYS FOR APPELLEES
APPELLEES’ SECOND MOTION TO STRIKE
The Texas Board of Chiropractic Examiners and Yvette Yarbrough,
Executive Director (collectively, “Board”) move to strike those portions of the briefs
of amici Chiropractic Society of Texas, International Federation of Chiropractors &
Organizations, American College of Acupuncture and Oriental Medicine, AOMA
Graduate School of Integrative Medicine, and the Student Associations of American
College of Acupuncture and Oriental Medicine and AOMA Graduate School of
Integrative Medicine that rely on documents outside the Clerk’s Record and the
documents themselves, because they were not presented to or relied upon by the trial
court in rendering its judgment, and the documents are not part of the Clerk’s Record
or otherwise made a part of the record on appeal. Now that Appellee has moved to
strike those portions of Appellant’s brief that improperly rely on material that
Appellant failed properly to introduce in evidence in this case, these amici have been
enlisted to apprise the Court of these facts. Because these amicus briefs are merely
a back-door attempt to expand the evidentiary record before this Court, those
portions of the amicus briefs that rely on or incorporate the same documents that
Appellant sought to introduce should be struck, as well as other parts of the amicus
briefs that cite factual material outside the record.
The objectionable portions of the amicus briefs include the following:
1. Chiropractic Society of Texas letter brief at page 2:
CST Bylaws, Article I stating the “Definition of Straight Chiropractic.”
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2. International Federation of Chiropractors & Organizations at page 3:
The Association of Chiropractic Colleges, 2.0 ACC Position on Chiropractic,
available at http://www.chirocolleges,org/paridigm_scope_practice.html.
3. American College of Acupuncture and Oriental Medicine:
a. Footnote 2. National Certification Commission for Acupuncture and
Oriental Medicine, NCCAOM Certification Handbook 2015, available at
http://www.nccaom.org/wp-
content/uploads/pdf/Certification%20Handbook.pdf.
b. Footnote 3. National Board of Chiropractic Examiners, Acupuncture
Brochure (page 3, Applicant Eligibility), available at
http://nbce.wpengine.com/wp-content/uploads/acu_brochure.pdf.
c. Footnote 4. Chiropractic Board hearing, July 11, 2012.
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
d. Footnote 5. Houston Chronicle article, available at
http://www.chron.com/news/health/article/Doctors-increasingly-are-
turning-to-acupuncture-4919724.php.
4. AOMA Graduate School of Integrative Medicine:
a. Footnote 1. CCAOM Clean Needle Technique Manual 7th Edition, Part I:
AOM Clinical Procedures, Safety, Adverse Events (AEs) and
Recommendations to Reduce AEs, available at
http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.
pdf.
b. Footnote 2. Chiropractic Board hearing, July 11, 2012.
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
c. Footnote 3. Chiropractic Board hearing, July 11, 2012.
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
5. Student Associations of American College of Acupuncture and Oriental
Medicine and AOMA Graduate School of Integrative Medicine:
a. Footnote 2. Frisco Spinal Rehabilitation, Infertility, available at
http://www.friscorehab.com/fertility-and-acupuncture.php. Frisco Spinal
Rehabilitation, Allergies and Acupuncture, available at
http://www.friscorehab.com/allergies-and-acupuncture.php.
b. Footnote 3. Ranger Chiropractic Clinic, Physicians, available at
http://www.ranger-chiropractic.com/#!physicians/cipy.
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Texas Rule of Appellate Procedure 34.1 states the following: “The appellate
record consists of the clerk’s record and, if necessary to the appeal, the reporter’s
record.” The documents listed above do not appear in, nor are they referenced in
any pleading that is a part of the clerk’s record. Amici are subject to the same rules
as the parties when filing briefs with the Court. Tex. R. App. P. 11(a). When these
documents are referenced in the amici’s briefs, the documents do not contain a
reference to the Clerk’s Record. Tex. R. App. P. 38.1(g). This Court may only
review the record as filed and may not consider documents neither in the record nor
considered by the trial court. Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771,
775 (Tex. App.—Dallas 2005, pet. denied). There is significant overlap between the
documents cited in the amicus briefs and the Appellant’s Brief. Just as the documents
and argument based upon them were improper in TAAOM’s Brief, they are
improper in the amicus briefs. Accordingly, this Motion to Strike should be granted
and the Court should not review the above documents cited by amici or the
arguments supported by these documents.
Further, the Court should not take judicial notice of any of the documents.
Judicial notice is neither requested nor appropriate in this case. These documents
are matters of evidence that should have been introduced at the trial court to be
considered. For instance, two of the amici cite to a recording of a hearing before a
committee of the Board. This was objected to in TAAOM’s Brief and is still outside
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the record and inappropriate for judicial notice. Another amicus cites a newspaper
article. Clearly, this is not a source whose “accuracy may not reasonably be
questioned.” Tex. R. Evid. 201. Another cites advertisements from chiropractors
allegedly using acupuncture for treatment outside their scope of practice. Apart from
being irrelevant to the case before this Court, it appears intended only to incite
animosity toward the Board. Certainly it is not something of which the Court may
take judicial notice.
PRAYER
The Board asks the Court to grant this Appellees’ Second Motion to Strike
and delete from the consideration of this case all documents pertaining to factual
matters outside the Clerk’s Record and all arguments based upon those documents.
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.
Chief, Administrative Law Division
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/s/ Joe H. Thrash
JOE H. THRASH
Bar No. 19995500
Assistant Attorney General
Administrative Law Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4203
Facsimile: (512) 320-0167
Joe.thrash@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEES
CERTIFICATE OF CONFERENCE
I hereby certify that I have conferred with opposing counsel concerning the
Second Motion to Strike and they are not in agreement with the Motion.
/s/ Joe H. Thrash
JOE H. THRASH
Assistant Attorney General
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3) and relying
on the word count function in the word processing software used to produce this
document, I certify that the number of words in this document is 812.
/s/ Joe H. Thrash
JOE H. THRASH
Assistant Attorney General
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CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Second Motion to Strike was served
via e-serve and/or e-mail on this the 13th day of November, 2015 to the following:
Craig T. Enoch Via electronic service and/or email
ENOCH KEVER PLLC
600 Congress Avenue
Suite 2800
Austin, Texas 78701
cenoch@enochkever.com
Melissa A. Lorber
mlorber@enochkever.com
Shelby O’Brien
sobrien@enochkever.com
Telephone: (512) 615-1200
Facsimile: (512) 615-1198
Attorneys for Appellant Texas Association of
Acupuncture and Oriental Medicine
Matthew M. Mix D.C.
Chiropractic Society of Texas
312 E. Church St.
Livingston, TX 77351
info@texaschiropractic.org
Dr. Peter J. Kevorkian
International Federation of Chiropractors and Organizations
2276 Wassergass Road
Hellertown, PA 18055
www.IFCOchiro.org
John Paul Liang
American College of Acupuncture and Oriental Medicine
9100 Westpark Dr.
Houston, TX 77063
jpliang@acaom.edu
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William R. Morris
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
wmorris@aoma.edu
Linda Henderson
9100 Westpark Dr.
Houston, TX 77603
lhenderson@acaom.edu
Gene Kuntz II
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
gkuntz@student.aoma.edu
/s/ Joe H. Thrash
JOE H. THRASH
Assistant Attorney General
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