Case Information
*0 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/21/2015 10:53:30 AM JEFFREY D. KYLE Clerk No. 03-14-00774-CV THIRD COURT OF APPEALS 10/21/2015 10:53:30 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00774-CV *1 ACCEPTED [7470675] CLERK IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
T EXAS S TATE B OARD OF V ETERINARY M EDICAL E XAMINERS AND N ICOLE O RIA , IN HER O FFICIAL C APACITY AS E XECUTIVE D IRECTOR , Appellant , v.
E LLEN J EFFERSON , D.V.M, Appellee , O N A PPEAL FROM THE 250 TH J UDICIAL D ISTRICT OF T RAVIS C OUNTY , T EXAS B RIEF OF A MICUS C URAIE C ITY OF A USTIN
A NNE L. M ORGAN , Interim City Attorney M EGHAN L R ILEY , Division Chief, Litigation M ICHAEL S IEGEL , Assistant City Attorney State Bar No. 24093148 C HRISTOPHER C OPPOLA , Assistant City Attorney State Bar No. 24036401 City of Austin Law Department P. O. Box 1546
Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov COUNSEL FOR AMICUS CURAIE CITY OF AUSTIN
TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES .................................................................................... iii
INTEREST OF AMICUS CURAE ........................................................................... 1
SUMMARY OF ARGUMENT ................................................................................ 2
ARGUMENT. ............................................................................................................ 3
I. Without the Ownership Exemption, the City Would Face Financial Pressure to Sacrifice the Lives of Healthy Homeless Animals to Avoid Increased Taxes or Cuts to Essential Services . ................................................................................ 3 PRAYER ................................................................................................................... 7
CERTIFICATE OF SERVICE .................................................................................. 8
CERTIFICATE OF COMPLIANCE ........................................................................ 9
ii *3 INDEX OF AUTHORITIES Texas Constitution
Article VI, § 5 ........................................................................................................... 1
State Statutes
Texas Occupational Code § 800.004 ..................................................................... 1, 3
iii *4
I NTEREST OF A MICUS C URAIE The City of Austin (“City”) is a home-rule municipality and political subdivision of the State of Texas. As part of its police power authority, the City has
established a Department of Animal Services which takes responsibility for the
care and adoption of homeless animals. See T EX . C ONST . art. XI, § 5 (granting
home-rule cities broad discretionary powers, so long as no local ordinance
contradicts the Texas Constitution or laws enacted by the state Legislature).
Beginning in 1997, the City began its efforts to adopt and implement a “no kill” policy in regards to healthy homeless animals in the custody of the Animal
Services Department. In 2010, the City dedicated considerable financial and
political resources to the implementation of its “no kill” policy. Effectuation of this
policy—which has led to a near complete elimination of discretionary killing of
homeless animals within the City limits—is substantially dependent upon the
ability of shelter veterinarians to rely on the “ownership exemption” contained
within the Texas Occupations Code. See T EX . O CC . C ODE . § 800.004(1).
The City is paying all fees and expenses to prepare this brief. See T EX . R.
A PP . P. 11.
S UMMARY OF THE A RGUMENT The City of Austin has implemented a robust and humane animal services policy in order to provide the best possible care for its homeless animals. Whereas
prior to the adoption of its “no kill” policy the City would destroy thousands of
animals each year that were neither terminally ill nor unreasonably dangerous, the
City has now implemented a comprehensive regime including efforts to: limit the
population of homeless animals through sterilization programs; provide high
quality intake and care services; encourage fostering and adoption of homeless
animals; and generally reduce the number of “killed” animals to a tiny fraction of
what it was. The City dedicates over ten million dollars per year to its animal
services operations, employing dozens of staff including full-time and part-time
veterinarians, veterinary technicians, an animal behaviorist, public education
personnel, and others. The City also contracts with outside organizations to provide
spay/neuter, adoption, and care services, and the Animal Services Department
recruits numerous volunteers to assist with its intake, education, adoption, and
animal care operations.
Despite this substantial commitment by the City to provide for its most disadvantaged animal residents, however, the recent action by the Texas State
Board of Veterinary Medical Examiners threatens Austin’s ability to provide
affordable and comprehensive animal care. In particular, the decision to investigate
a shelter veterinarian for failure to establish a veterinarian-client-patient
relationship with a homeless animal threatens the financial model that the City
works from as it implements a comprehensive and “no kill” animal services policy.
The City of Austin submits this brief as amicus curiae to ask the Court to confirm that the “owner exemption” of the Veterinary Licensing Act applies to
veterinarians when they treat homeless animals owned by a public or private
animal shelter.
A RGUMENT I. Without the Ownership Exemption, the City Would Face Financial Pressure to Sacrifice the Lives of Healthy Homeless Animals to Avoid Increased Taxes or Cuts to Essential Services.
The Texas State Board of Veterinary Medical Examiners (TSBVME) has narrowly argued the issues on appeal, suggesting that the scope of the “ownership
exemption” is not at issue. [1] This framing ignores the fact that this proceeding
would not exist absent TSBVME’s decision to investigate Dr. Jefferson despite
both (a) the clearly established ownership exemption Texas Occupations Code,
Section 800.004(1), and (b) the TSBVME’s own guidance that a shelter becomes
*7 the owner of a homeless animal following a “stray hold” waiting period. [2]
Furthermore, the November 18, 2014, Order of the Travis County District Court
that provides the basis for this appeal rules that TSBVME violated the Texas
Occupations Code in its zeal to subject Dr. Ellen Jefferson to certain agency rules
that plainly contradict the ownership exemption. [3]
It is the City’s concern for the continued enforcement of the ownership exemption that motivates this submission as amicus curiae. As discussed above,
the City is firmly invested in a comprehensive, “no kill” approach to providing
care for homeless animals. Without the ability to rely on the ownership exemption,
the City would be forced to completely reformulate its approach to animal services.
Amici Alley Cat Allies provides an excellent summary of the policy and financial constraints imposed on shelter veterinary practices.
The owner exception is critical because shelters and rescue organizations face limitations that are not present in the private practice of veterinary medicine. These limitations include the volume of animals handled, the space in which animals are seen or housed, the well-being of animals presented, and a disparity in financial resources. Shelters and rescue organizations handle far more animals than most veterinary clinics, often without the ability to schedule admissions in advance. Animals are sheltered in relatively close quarters, as opposed to the private homes of most veterinary clients. Private practices can assume a basic level of care [and record of vaccination] for most patients; in most cases, shelters do not know the care or vaccination *8 histories of admitted animals. Finally, most shelters or rescue organizations do not have anywhere near the financial resources, especially when calculated on a per-animal basis, compared to private veterinary practices, which are usually paid by clients on a fee-for- service model. A shelter, of course, has no client to foot the bill. [4] In the City of Austin, it is the taxpayers who “foot the bill” for the care of homeless animals. In addition to the millions of dollars that the City spends on its
own staff and facilities, the Animal Services Department also relies on “in kind”
services and outside expenditures by its nonprofit partners. Austin Pets Alive!
(APA), among other organizations, has been an essential vendor of services and an
important collaborative partner in regards to the City’s ongoing efforts to meet its
“no kill” objectives.
Pursuant to a renewable contract with the City, APA operates the Town Lake Animal Center (TLAC), one of the core facilities within Austin’s public-
private safety net of animal clinics and adoption centers. As part of the City-APA
agreement, APA promises to treat at least 3,000 at-risk homeless animals each
year, or 12% of the total number animals taken in by the City’s Department of
Animal Services, whichever is greater. [5] APA also accepts several behaviorally
challenged large dogs each month, to further support the City’s “no kill”
objectives.
*9 APA has assumed these obligations for Austin-area animals at considerable cost. The City estimates that APA contributes over $1,000,000 annually to the
operation of TLAC, raised entirely from APA’s network of supporters. The City
pays approximately $12,000 per month for certain operating expenses, and the City
also funds electric, water, and wastewater utility charges, but otherwise, APA
assumes full responsibility for the maintenance and operation of TLAC.
In other words, APA has been an essential partner in the City’s work to create a “no kill” environment for homeless animals in the Austin area. This work
is premised in large part upon the “ownership exemption,” which permits shelter
veterinary organizations such as APA to provide cost-effective services on behalf
of the City and its residents.
Without its reliance on the “ownership exemption,” APA will not be able to provide the charitable shelter veterinary services that are essential to fulfillment of
the City’s “no kill” objections. The consequences that flow from reduced
charitable shelter veterinary services could be severe. If APA is forced to
substantially reduce, or even eliminate its services, the City would find itself faced
with the terrible choice of, on one hand, revoking its commitment to “no kill,” and
returning to the destruction of healthy homeless animals; or, on the other hand,
funding its commitment to these animals by raising taxes or cutting other necessary
public services.
P RAYER The City of Austin requests that the Court of Appeals affirm that nonprofit shelter veterinary organizations can rely on the “ownership exemption” when they
provide medical treatment to homeless animals.
RESPECTFULLY SUBMITTED, A NNE L. M ORGAN , Interim City Attorney M EGHAN L R ILEY , Division Chief, Litigation /s/ Michael Siegel
M ICHAEL S IEGEL , Assistant City Attorney State Bar No. 24093148 C HRISTOPHER C OPPOLA , Assistant City Attorney State Bar No. 24036401 City of Austin Law Department P. O. Box 1546
Austin, Texas 78767-1546 Telephone: (512) 974-2888 Facsimile: (512) 974-1311 michael.siegel@austintexas.gov christopher.coppola@austintexas.gov COUNSEL FOR AMICUS CURAIE CITY OF AUSTIN
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was sent on October 2 , 2015, via an electronic filing service provider. 1
V IA E- MAIL
Andrew Lutostanski
Ted Ross
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548
Austin, TX 78711
andrew.lutostanski@texasattorneygeneral.gov
ted.ross@texasattorneygeneral.gov
Ryan Clinton
Davis, Gerald & Cremer, P.C.
111 Congress Ave., Suite 2800
Austin, TX 78701
rdclinton@dgclaw.com
David Brown
Ewell, Brown & Blanke, LLP
111 Congress Ave., 28 th Floor
Austin, TX 78701
dbrown@ebblaw.com
/s/ Michael Siegel
M ICHAEL S IEGEL *12 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Tex. R. App. P.
9.4(i)(2)(B) because this brief contains 1,448 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Michael Siegel
MICHAEL SIEGEL
[1] See Brief of Cross-Appellees Texas State Board of Veterinary Medical Examiners and Nicole Oria, in her Official Capacity as Executive Director, at 18 (“Dr. Jefferson’s arguments on the merits are irrelevant to the issues to be decided in this appeal”) (filed Sept. 11, 2015).
[2] See Brief of Appellant Ellen Jefferson, D.V.M., at 8-10 (filed July 9, 2015); see also 3.RR.PX18:EJ000638.
[3] See “Final Judgment,” Brief of Appellee Ellen Jefferson, D.V.M., Tab C, at 1-2 (filed Sept. 8, 2015).
[4] Amicus Brief by Alley Cat Allies in Support of Dr. Jefferson , at 8-9.
[5] In practice, APA accepts animals far in excess of the contractual minimum. In the most recent year for which data is available, APA accepted over 3,800 homeless animals from the City of Austin.