Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity
524 S.W.3d 734
| Tex. App. | 2017Background
- The Texas Association of Acupuncture and Oriental Medicine (Acupuncture Association) sued the Texas Board of Chiropractic Examiners (Chiropractic Board) challenging administrative rules that authorize chiropractors to perform acupuncture, arguing those rules exceed the statutory chiropractic scope of practice or otherwise are unconstitutional.
- The Chiropractic Act permits chiropractors to evaluate the spine/musculoskeletal system and perform nonsurgical, nonincisive procedures, and it defines "incisive or surgical procedure" to include making an incision; it excepts needle use only when drawing blood for diagnostic testing.
- The Chiropractic Board adopted rules (22 Tex. Admin. Code §§ 78.13, 78.14) defining "incision" as a cut or surgical wound, permitting needle use unless the procedure is incisive, and expressly authorizing acupuncture subject to training and scope limits.
- The Acupuncture Association argued any needle penetration (except blood draws) is "incisive," so acupuncture by chiropractors exceeds statutory scope and conflicts with the Acupuncture Act; the Board argued acupuncture is defined as nonincisive in the Acupuncture Act and the statutes can be harmonized (in pari materia).
- The trial court granted summary judgment to the Chiropractic Board and denied the Association’s summary judgment; on appeal this Court affirmed as to the Board’s definitions of "incision" and needle-use rule but reversed and remanded as to the Board’s rules expressly authorizing acupuncture (78.13(e)(2)(C) and 78.14) because the Board failed to prove acupuncture is nonincisive as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board exceeded rulemaking authority by defining "incision" narrowly and permitting needle use (22 Tex. Admin. Code § 78.13(a)(4), (b)(2)) | Any needle penetration (except diagnostic blood draws) is "incisive," so the Board's narrow definition unlawfully expands scope | The Board's definition is reasonable; some needles/procedures are nonincisive and fit within chiropractic scope | Court: Board's definition of "incision" as a cut/surgical wound and rule allowing needle use unless "incisive" is reasonable and valid; summary judgment for Board affirmed on these points |
| Whether rules expressly authorizing acupuncture (78.13(e)(2)(C) and 78.14) exceed statutory authority | Acupuncture involves needle insertion and therefore is "incisive," so rules authorizing acupuncture exceed the chiropractic scope and are invalid | The Acupuncture Act defines acupuncture as nonsurgical/nonincisive; statutes can be harmonized so chiropractors may perform acupuncture within chiropractic scope | Court: Plaintiff failed to prove acupuncture is "incisive" as a matter of law; but Board failed to prove acupuncture is nonincisive as a matter of law—trial court erred by granting summary judgment to Board on these rules; that portion reversed and remanded |
| Whether the Acupuncture Act's definition of acupuncture should be read in pari materia into the Chiropractic Act (i.e., acupuncture categorically nonincisive) | The Acupuncture Act’s express definition shows needle insertion is nonincisive and should govern | Board: statutes can be read together; Acupuncture Act’s definition effectively exempts chiropractors from Acupuncture Act requirements | Court: statutes are separate, serve different regulatory purposes, and lack textual indication of incorporation; in pari materia not applied here; AG opinion persuasive but not binding |
| Whether constitutional objections (preference to chiropractors; single-subject violation) require invalidating rules or statutes | The statutory scheme gives unfair preference to chiropractors and was enacted through legislation amending the wrong act | Board: constitutional challenges unnecessary if rules/statutes can be construed validly | Court: Because it could not conclude as a matter of law that chiropractors are authorized to practice acupuncture, Court did not decide constitutional claims (left for further proceedings if needed) |
Key Cases Cited
- Texas Bd. of Chiropractic Exam'rs v. Texas Med. Ass'n, 375 S.W.3d 464 (Tex. App.—Austin 2012) (analyzing whether needle EMG and other procedures are "incisive" and thus outside chiropractic scope)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard for de novo review of summary judgment where both parties move)
- Public Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310 (Tex. 2001) (agency only has powers granted by statute; agency rules invalid absent statutory authority)
- Harlingen Family Dentistry, P.C. v. Texas Health & Human Servs. Comm'n, 452 S.W.3d 479 (Tex. App.—Austin 2014) (standards for facial invalidity of administrative rules)
- TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (statutory construction principles; deference to agency where statute ambiguous)
- La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558 (Tex. 1984) (statutes should be construed to harmonize with other laws where possible)