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
03-14-00774-CV
| Tex. App. | Nov 5, 2015Background
- Appeal by Texas State Board of Veterinary Medical Examiners and its Executive Director (the Board) from district-court invalidation of two Board rules: 22 Tex. Admin. Code §573.72 and §573.80(2).
- Central statutory provision: Ownership exemption in Tex. Occ. Code §801.004(1) (the Act exempts treatment by an owner, employee, or designated caretaker unless the status was established to evade the Act).
- Rule 573.72 addresses veterinarians employed/contracted by nonprofit or municipal corporations and originally imposed liability for violations occurring in that context.
- The Board amended Rule 573.72 to clarify it does not override the statutory exemption; the amendment was filed Nov. 2, 2015 and effective Nov. 22, 2015, and no public comments were submitted.
- Rule 573.80(2) defines "designated caretaker" and contains conditions (following veterinarian instructions and supervision) intended to prevent unlicensed practice via subterfuge.
- The Board argues Rule 573.72 is now moot because of the amendment and defends Rule 573.80(2) as a reasonable, entitled-to-deference interpretation of an ambiguous statutory term aimed at protecting the public.
Issues
| Issue | Plaintiff's Argument (Jefferson) | Defendant's Argument (Board) | Held |
|---|---|---|---|
| Validity of Rule 573.72 (employment by nonprofits/municipalities) | Rule improperly extends liability to veterinarians for acts of persons who are themselves exempt (owners/employees/designees) | Rule was amended to acknowledge statutory exemption; appeal of that rule is moot as of amendment's effective date | Board concedes mootness of appeal as to §573.72 effective Nov. 22, 2015 |
| Meaning and scope of "designated caretaker" in §801.004(1) and validity of Rule 573.80(2) | Term has clear/common meaning (requires substitute authority/agency or dominion) so rule is unnecessary or invalid if it expands regulation beyond statute | Term is ambiguous; Board's definition reasonably construes ambiguity to prevent evasion of licensing law and thus is entitled to deference | Court should reverse district court invalidation of §573.80(2); deference applies because ambiguity/room for policy interpretation exists |
| Applicability of deference to agency interpretation | Jefferson contends term is unambiguous so deference not required | Board points out Jefferson's later arguments acknowledge unique statutory context and ambiguity, so deference is appropriate | Deference standard applies when a statutory term is ambiguous or allows policy interpretation |
| Mootness / jurisdictional posture | Jefferson pursues cross-appeal on subject-matter jurisdiction and exhaustion issues | Board notes administrative complaint/contested case dismissed with prejudice and argues certain jurisdictional issues are moot; Board denies conceding trial-court errors | Board indicates jurisdictional cross-appeal may be moot; trial-court jurisdiction issues remain contested |
Key Cases Cited
- Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126 (Tex. App.—Austin 2007, no pet.) (describes when a case becomes moot)
- TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (deference standard applied when statute is vague, ambiguous, or allows policy interpretation)
- Tex. Ass'n of Psychological Assoc. v. Tex. State Bd. of Examn'rs of Psychologists, 439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) (defines "ambiguity" as multiple reasonable interpretations)