Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/4/2015 9:40:58 AM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 3/4/2015 9:40:58 AM JEFFREY D. KYLE 03-13-00077-CV AUSTIN, TEXAS *1 ACCEPTED [4362192] CLERK
NO. 03-13-00077-CV __________________________________________________________________
IN THE COURT OF APPEALS, THIRD DISTRICT __________________________________________________________________
TEXAS STATE BOARD OF EXAMINERS OF MARRIAGE AND FAMILY THERAPISTS, Charles Horton as Executive Director, and Sandra Desobe, as Presiding Officer, and TEXAS ASSOCIATION OF MARRIAGE AND FAMILY THERAPY, Appellants/ Cross Appellees Vs.
TEXAS MEDICAL ASSOCIATION Appellee/ Cross-Appellant __________________________________________________________________
APPELLEE TEXAS MEDICAL ASSOCIATION’S OPPOSED MOTION TO
REJECT AND RETURN AMICUS BRIEF FILED BY THE ASSOCIATION
OF MARITAL AND FAMILY REGULATORY BOARDS __________________________________________________________________
David F. Bragg Law Office of David F. Bragg, P.C. Bastrop, Texas 78602 Telephone: (512) 581-0061 Telecopier: (512) 581-0247 Email: dfbragg@sbcglobal.net Counsel for TMA *2 TO THE HONORABLE COURT OF APPEALS:
Texas Medical Association, Appellee, respectfully requests that the Court not consider the Amicus Brief filed by the Association of Marital and Family
Regulatory Boards (hereinafter “AMFTRB”) and order that it be returned.
1. Authority for Request
This request is made pursuant to Tex. R. App. P. 11 which provides that “for good cause” the Court may refuse to consider an amicus brief and order that it be
returned.
2. Objections to Amicus Brief Appellee objects to two parts of the Amicus Brief. First, the brief contains what can only be described as an incredibly unfair attack on the character of
Priscilla Ray, M.D., an expert witness. The brief not only challenges Dr. Ray’s
ethics, see Amicus Brief, pp. 25-27, it also attaches as appendices documents
purportedly from the Texas Medical Board, see Appendices B, C. None of this
“evidence” is in the appellate record. Had this attack been made in the district
court, Dr. Ray would have been in a position to defend herself, and the district
court would have had the opportunity to weigh the merits, if any, of the allegations
concerning Dr. Ray’s expertise and her opinions.
Appellee also objects to those parts of the amicus brief which inject evidence into the case that was not presented to the district court and which is not
in the record. Specifically, the Amicus Brief discusses the alleged economic
impact of preventing a therapist from performing diagnostic assessments, see
Amicus Brief, p. 5; and (2) describes in detail AMFTRB’s Test Policy and testing
requirements. See Amicus Brief, pp. 9-11. In addition, the Amicus Brief includes
an affidavit which contains the same information. See Amicus Brief, Appendix A.
Again, none of this evidence is in the appellate record.
3. Good Cause for Refusal to Consider Appellee reluctantly makes this request that the amicus brief not be considered and that it be returned because Appellee is fully aware of the important
function that an amicus brief can serve, so much so that appellate courts sometimes
solicit such briefs. See e.g. Brown v. De La Cruz , 156 S.W.3d 560, 566 (Tex.
2004); City of San Antonio v. City of Boerne , 111 S.W.3d 22, 30 (Tex. 2003).
Even so, an amicus brief must comply with the same briefing rules that apply to
the parties. Tex. R. App. P. 11(a). The Amicus Brief violates the fundamental
briefing rule that facts stated in a brief must be supported by record references.
Tex. R. App. 38.1(g). Of course it is not possible for AMFTRB to give record
references concerning the alleged economic impact on therapists, its Test Policy
and testing requirements, or its attack on Dr. Ray’s character because there is
nothing in the record about any of it. The Appendix for the Amicus Brief also
violates the rule that documents cannot be attached as an appendix if the
documents are not formally included in the record on appeal. Cantu v. Horany ,
195 S.W.3d 867, 870 (Tex. App. – Dallas 2006, no pet.) (“An appellate court
cannot consider documents cited in a brief and attached as appendices if they are
not formally included in the record on appeal.”). For all of these reasons, Appellee
believes that there is good cause to grant the relief requested.
4. Certificate of Conference The undersigned has conferred with opposing counsel and this motion is opposed by the Texas State Board of Marriage and Family Therapists and the
Texas Association of Marriage and Family Therapy.
5. Request for Relief
Appellee requests that the Court give no consideration to the Amicus Brief filed by AMFTRB and that the brief be returned. Appellee requests such other
relief to which it may be entitled.
Respectfully submitted, LAW OFFICES OF DAVID F. BRAGG David F. Bragg, P.C.
Bastrop, Texas 78602 Telephone: 512-581-0061 Telecopier: 512-581-0245 Email: dfbragg@sbcglobal.net By /s/ David F. Bragg David F. Bragg *5 Of Counsel :
Donald P. Wilcox
General Counsel, TMA
State Bar No. 21449000
Kelly Walla
Deputy General Counsel, TMA
Texas Medical Association
401 West 15 th Street
Austin, Texas 78701
(512) 370-1300
FAX: (512) 370-1636
CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing Appellee’s Motion was served electronically on all counsel of record through the Tex.gov portal using
eFile.TXcourts.gov, an Electronic Filing Service Provider, on this 4 th day of
March, 2015.
Attorneys served :
Mr. Dustin M. Howell
Assistant Solicitor General
Austin, Texas 78711-2548
Mr. David T. Arlington
Mr. Matt Wood
Baker Botts LLP
98 San Jacinto Blvd., Suite 1600
Austin, Texas 78701-4039
Steven T. Peluso
The Law Office of Steven T. Peluso, Esq.
1133 Broadway, Suite 304
New York, New York 10010
/s/ David F. Bragg _________________ DAVID F. BRAGG