TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Aрpellant v. TEXAS BOARD OF CHIROPRACTIC EXAMINERS; and Patricia Gilbert, Executive Director, in her Official Capacity, Appellees
NO. 03-15-00262-CV
Court of Appeals of Texas, Austin.
Filed: February 17, 2017
Scott K. Field, Justice
Before Chief Justice Rose, Justices Pemberton and Field
CONCLUSION
I would reverse our prior severance order, dismiss the civil forfeiture appeals, and address the forfeiture issues in the criminal appeals. Further, for any of the various reasons discussed above, I would reverse the criminal convictions of Tafel for Unlawful Carrying of Handgun by License Holder and enter judgments of acquittal. Likewise, I would reverse the forfeiture orders and order Tafel‘s handguns returned to him. Because the Court affirms the convictions and forfeitures, I respectfully dissent.
erred in judicially noticing the record from the criminal trial before the same trial court judge; “in order for testimony at a prior hearing or trial to be considered at a subsequent proceeding, the transcript of such testimony must be properly authenticated and entered into evidence.“). We should not do so now. Further, the record from the previous forfeiture hearing after the first trial which the State now wants the Court to use did not result in the forfeiture and was from a trial and forfeiture hearing before a different judge. Further, if we were to supplement the record in the fashion suggested by the State, we would also have to revisit the double jeopardy issue to then determine if double jeopardy was apparent on the face of the record.
Mr. Jason D. Ray, Riggs & Ray, P.C., 506 W. 14th St., Suite A, Austin, TX 78701, Mr. Joe H. Thrash, Ms. Karen L. Watkins, Assistant Attorney General, Administrative Law Division, P. O. Box 12548, Austin, TX 78711, Mr. Don R. Sampen, 10 South LaSalle St., Suite 1600, Chicagо, IL 60603, Mr. Donald P. Wilcox, Texas Medical Association, 401 West 15th Street, Austin, TX 78701, for Appellee.
ON MOTION FOR REHEARING
OPINION
Scott K. Field, Justice
We grant, in part, appellant Texas Association of Acupuncture and Oriental Medi
The Texas Association of Acupuncture and Oriental Medicine (the Acupuncture Association) sued the Texas Board of Chiropractic Examiners (the Chiropractic Board) and Patricia Gilbert, in her official capacity as the Executive Director of the Chiropractic Board, seeking declarations that certain provisions in two of the Chiropractic Board‘s administrative rules are invalid.1 See
On cross-motions for summary judgment, the trial court granted the Chiropractic Board‘s motion for summary judgment, deniеd the Acupuncture Association‘s motion for summary judgment, and dismissed the Acupuncture Association‘s claims. The Acupuncture Association filed this appeal. We will reverse that portion of the trial court‘s judgment dismissing the Acupuncture Association‘s challenge to the Chiropractic Board‘s rule expressly authorizing acupuncture and remand for further proceedings. In all other respects, we will affirm the judgment of the trial court.
BACKGROUND
The practice of medicine in Texas is governed by the Texas Medical Practice Act and regulated by the Texas Medical Board. See
(b) A person practices chiropractic under this chapter if the person:
(1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body; [or]
(2) performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musсuloskeletal system[.]
...
(c) The practice of chiropractic does not include:
(1) incisive or surgical procedures[.]
“Incisive or surgical procedure” includes making an incision into any tissue, cavity, or organ by any person or implement. The term does not include the use of a needle for the purpose of drawing blood for diagnostic testing.
In the years that followed the Legislature‘s promulgation of the current scope of practice for chiropractors, the Chiropractic Board “informally advised” its chiropractic licensees that the Chiropractic Act permitted chiropractors in Texas to perform a variety of procedures, including acupuncture.2 See TMA I, 375 S.W.3d at 470 & n.8. In 2005, the Texas Legislature mandated that the Chiropractic Board “adopt [formal] rules clarifying what аctivities are included within the scope of the practice of chiropractic and what activities are outside that scope,” including “clearly specify[ing] the procedures that chiropractors may perform” and “any equipment and the use of that equipment that is prohibited.” See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8, 2005 Tex. Gen. Laws 3464, 3466 (codified at
The Texas Medical Association subsequently sued the Chiropractic Board seeking, in part, declarations that those provisions in the scope-of-practice rules that permitted chiropractors to perform needle EMG and MUA were invalid because they exceeded the statutory scope of chiropractic practice and, therefore, constituted the unlawful practice of medicine. See TMA I, 375 S.W.3d at 472-73. The district court agreed, granted summary judgment in favor of the TMA on these claims, and declared that the rule provisions authorizing needle EMG and MUA were invalid. Id. at 473. In TMA I, this Court affirmed that portion of the trial court‘s judgment. Id. at 482, 488. Although the Chiropractic Board‘s scope-of-practice rules also authorized acupuncture at the time that the TMA filed their suit against the Board, the TMA did not challenge those portions of the rules.
The Acupuncture Association moved for traditional summary judgment on its claims that the Chiropractic Board‘s rules and, alternatively, the Chiropractic Act are invalid; conversely, thе Chiropractic Board moved for summary judgment seeking a take-nothing judgment on the Acupuncture Association‘s claims.3 The trial court granted the Chiropractic Board‘s motion and denied the Acupuncture Association‘s motion. The Acupuncture Association filed a notice of appeal and, in three issues, challenges the trial court‘s summary-judgment rulings.
STANDARD OF REVIEW
Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is proper when the summary-judgment evidence shows that there are no disputed issues of material fact and that the movant is entitled to judgment as a matter of law.
The Chiropractic Board, as a state administrative agency, has only those powers that the Legislature expressly con
To establish a rule‘s facial invalidity, a challenger must show that the rule (1) contravenes specific statutory language, (2) is counter to the statute‘s general objectives, or (3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions. See Harlingen Family Dentistry, P.C. v. Texas Health & Human Servs. Comm‘n, 452 S.W.3d 479, 482 (Tex. App.—Austin 2014, pet. dism‘d). An agency rule is presumed valid, and the challеnging party bears the burden to demonstrate its invalidity. Office of Pub. Util. Counsel v. Public Util. Comm‘n, 131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied).
The parties’ arguments on appeal primarily concern the proper construction of the Occupations Code. We review questions of statutory construction de novo. First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008). When construing a statute, our primary objective is to ascertain and give effect to the Legislature‘s intent. Id. at 631-32. In determining legislative intent, we begin with the statute‘s words. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We use any definitions provided by the statute and assign undefined terms their ordinary meaning, unless a different, more precise definition is apparent from the term‘s use in the context of the statute. Id. Where the statutory text is clear, it is determinative of legislative intent, unless enforcing the plain meaning of the stаtute‘s words would lead to absurd results. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2014). If a statute is ambiguous—i.e., there is more than one reasonable interpretation—we give “serious consideration” to the construction of the statute by the administrative agency charged with its enforcement, “so long as the construction is reasonable and does not conflict with the statute‘s language.” Railroad Comm‘n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628-30 (Tex. 2011).
ANALYSIS
In its first issue on appeal, the Acupuncture Association argues that the trial court erred in failing to conclude that the Chiropractic Board exceeded its statutory rulemaking authority in promulgating Rule 78.13(a)(4), (b)(2), (e)(2)(C), and Rule 78.14.
As previously discussed, the Chiropractic Act authorizes chiropractors to “use[] objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body” and to “perform[] nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system[.]”
In its scope-of-practice rule, Rule 78.13, the Chiropractic Board construed and defined the term “incision” as “[a] cut or a surgical wound; also, a division of the soft parts made with a knife or hot laser.”
According to the Acupuncture Association, the challenged rule provisions are invalid because they purport to authorize chiropractors to рractice procedures that are outside of the statutory scope of chiropractic practice. Specifically, the Acupuncture Association argues that the rule provisions at issue impermissibly attempt to narrowly define “incisive” under section 201.002 of the Chiropractic Act in a manner that generally permits the use of needles, including acupuncture needles. The Acupuncture Association contends that the statutory scope of practice more broadly prohibits the use of any needles in the practice of chiropractic, except for diagnostic blood draws, and that any penetration of the skin by a needle is “incisive.” See
In response, the Chiropractic Board argues that the trial court did not err in granting summary judgment in its favor because the unambiguous language of Chapter 205 of the Occupations Code (or “the Acupuncture Act“) creates an express exemption fоr chiropractors that allows them to perform acupuncture, to the extent it is otherwise performed within the scope of chiropractic practice, without being subject to the requirements of the Acupuncture Act. See
the nonsurgical, nonincisive insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition, including evaluation and assessment of the condition[.]
Our analysis of the parties’ positions must begin against the backdrop of our decision in TMA I. This Court‘s determination in TMA I that the Chiropractic Board‘s rules authorizing needle EMG were invalid turned on whether the needle-EMG procedure was “incisive” under the Chiropractic Act. See TMA I, 375 S.W.3d at 475-76. Like the Acupuncture Association does in the instant case, the Texas Medical Association in TMA I took the position that all needle use is “incisive” when the needle is inserted into “any tissue, cаvity, or organ” and that this interpretation was the negative implication of the Legislature‘s exception for blood draws from “incisive or surgical.” Id. at 476. When TMA I was decided, the Chiropractic Board‘s rules provided that the use of a needle was incisive “if the procedure result[ed] in the removal of tissue other than for the purpose of drawing blood.” See former
In analyzing the Legislature‘s intent in its use of the term “incisive” in the Chiropractic Act, we started our analysis in TMA I by recognizing that the term holds both an ordinary meaning and a “somewhat narrower technical meaning.” Id. at 479. “Especially in the context of health care, ‘incisive’ is used to refer to the act of cutting, usually tissue.” Id. (citations omitted). “By contrast, the ordinary meaning of ‘incisive’ embraces not only the concept of cutting, but also ‘piercing’ and ‘penetrating.‘” Id. (citations omitted). In addition, we explained that the Chiropractic Board‘s own rule defined the term “incision” to mean, in relevant part, “a cut or surgical wound,” see
This Court focused its analysis on whether the challenged rules were premised on a construction and application of “cut” that was inconsistent with the rule‘s text and underlying statutes. Id. The summary-judgment evidence established that at least some of the types of needles used in needle EMG had a beveled, blade-like edge designed to “cut” into tissue, under any “conceivable definition of that term.” Id. Accordingly, we concluded that the rule provisions authorizing chiropractors to perform needle EMG exceeded the stat
As in TMA I, our resolution of whether the Chiropractic Board‘s rules in this case are valid, to the extent they authorize the practice of acupuncture, turns on the Legislature‘s intended use of the word “incisive” in the Chiropractic Act. See
The Acupuncture Association and the Chiropractic Board each moved for summary judgment on the Association‘s claims that certain portions of Rule 78.13 are invalid, including subsection (a)(4) defining “incision.” Because Rule 78.13(a)(4) is not unreasonable or inconsistent with the Chiropractic Act, the trial court did not err in denying the Acupuncture Association‘s motion for summary judgment and granting summary judgment in favor of the Chiropractic Board with respect to the Acupuncture Association‘s challenge to Rule 78.13(a)(4).
In addition, the Acupuncture Association and the Chiropractic Board each moved for summary judgment on the Association‘s claim that subsection (b)(2) of Rule 78.13 is invalid. Rule 78.13(b)(2) states that “needles may be used in the practice of chiropractic under standards set forth by
Finally, the Acupuncture Association moved for summary judgment on its claims that Rule 78.14 and subsection (e)(2)(C) of Rule 78.13 exceed the Chiropractic Board‘s rulemaking authority. Rule 78.14 and Rule 78.13(e)(2)(C) expressly purport to allow chiropractors to practice acupuncture, subject to certain conditions. See
The Chiropractic Board also moved for traditional summary judgment on the Association‘s challenges to Rule 78.14 and Rule 78.13(e)(2)(C). To prevail on its motion with respect to these claims, the Chiropractic Board was required to establish that acupuncture needles are “nonincisive” as a matter of law. The Chiropractic Board, however, does not contend that it presented summary-judgment evidence conclusively establishing that acupuncture needles are not capable of “cutting” and thus are “nonincisive.” Instead, the Chiropractic Board asserted in its motion for summary judgment, and now on aрpeal, that the practice of acupuncture is “nonincisive,” as a matter of law, because the Acupuncture Act, in its view, defines acupuncture as “nonincisive.” The Chiropractic Board claims that regardless of what properties acupuncture needles possess or what the practice of acupuncture entails, the Acupuncture Act has effectively exempted chiropractors from the Acupuncture Act as a matter of statutory construction.
The crux of the Chiropractic Board‘s argument is that the Legislature intended for the definition of acupuncture in the Acupuncture Act to specifically address whether acupuncture is “nonincisive” for purposes of the Chiropractic Act. In essence, the Chiropraсtic Board would have us construe the Chiropractic Act as if it includes the definition of “acupuncture” found in the Acupuncture Act and, consequently, excepts acupuncture from the Chiropractic Act‘s general prohibition on “incisive” procedures.4 The Chiropractic
The doctrine of in pari materia is a principle of statutory interpretation, a means of giving full effect to legislative intent. State v. Wiseman, 269 S.W.3d 769, 774 (Tex. App.—Austin 2008, no pet.) (citing Mills v. State, 722 S.W.2d 411, 413 (Tex. Crim. App. 1986)); see
Here, the Chiropractic Act regulates the practice of chiropractic, defines the scope of chiropractic practice, and prohibits chiropractors from performing “incisive” pro
There is no textual indication that the Legislature intended to incorporate the Acupuncture Act‘s definition of “acupuncture” into the Chiropractic Act. See DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 410 (Tex. App.—Dallas 2010, pet. denied) (noting that there was “no indication that the legislature intended to incorporate the occupations code‘s definition of ‘architect’ into chapter 150 of the civil practice and remedies code” and rejecting in pari materia argument); see also Wiseman, 269 S.W.3d 769 (“Although two statutes need not have been adopted as part of a single legislative act to be considered in pari materia, the fact that they were may serve as some indication that the statutes were intended to have a common object or purpose.“). And because each statute serves the purpose of defining and regulating a separate health-care field, we cannot conclude that the acts were clearly written tо achieve the same objective, despite the fact that they utilize similar terminology.6 See DLB Architects, 305 S.W.3d at 410. Consequently, we cannot conclude that the Legislature necessarily intended for the respective regulatory authorities over these two, separate health-care fields to apply the same meaning to the term “incisive,” and accordingly, we will not construe the Chiropractic Act as if it includes the Acupuncture Act‘s definition of “acupuncture.”
To prevail on their motion for summary judgment on the Acupuncture Association‘s claims that Rule 78.14 and Rule 78.13(e)(2)(C) are invalid, the Chiropractic Board was required to present summary-judgment evidence supporting its contention that acupuncture needles are nonincisive as a matter of law. Because they failed to meet their burden, the trial court erred to the extent it granted summary judgment in favor of the Chiropractic Board on these claims.
Constitutional Claims
In its second and third issues on appeal, the Acupuncture Association asserts, in the alternative, that the trial court erred in granting summary judgment in favor of the Chiropractic Board on its claim that the statutory scheme violates the Texas Constitution to the extent it permits chiropractors to practice acupuncture. Specifically, the Acupuncture Association argues that the statutory scheme (1) impermissibly grants a “preference” to chiropractors over acupuncturists, see
CONCLUSION
Cases construing the scope of chiropractic vis-à-vis other healthcare fields has been a recurring theme of litigation and decisions in this Court. See generally TMA I, 375 S.W.3d at 464-97; Texas Bd. of Chiropractic Exam‘rs v. Texas Med. Assoc., No. 03-14-00396-CV, 2014 WL 7014530 (Tex. App.—Austin Dec. 8, 2014, pet. denied) (mem. op.). What this history underscores is that the scope of chiropractic vis-à-vis other healthcare fields is a puzzle best solved by the Legislature in a clear and precise manner, rather than leaving these policy-laden issues to the Judiciary for a determination of legislative intent from statutory language that is, to say the least, not the model of clarity. We respectfully request that the Legislature solve this problem.
For the reasons set forth in the analysis above, we conclude that the trial court did not err in denying the Acupuncture Association‘s motion for summary judgment and in granting the Chiropractic Board‘s motion for summary judgment with respect to the Acupuncture Association‘s challenges to Rule 78.13(a)(4) and (b)(2). The trial court did err, however, in granting summary judgment in favor of the Chiropractic Board with respect to the Acupuncture Association‘s challenges to the validity of Rule 78.14 and to the validity of Rule 78.13(e)(2)(C). Because both the Chiropractic Board and Acupuncture Association have failed to establish entitlement to judgment as a matter of law on these claims, we reverse that portion of the trial сourt‘s judgment and remand the cause for further proceedings on this issue. We affirm the remainder of the trial court‘s judgment in favor of the Chiropractic Board on the Acupuncture Association‘s claims.
Scott K. Field
Justice