Appellant Texas Association of Acupuncture and Oriental Medicine (“Acupuncture Association”) files this response to Appellees Texas Board of

Chiropractic Examiners and Yvette Yarbrough, in her Official Capacity as

Executive Director of the Chiropractic Board’s (“Chiropractic Board”) motion to

strike. The Acupuncture Association requests for the Court to deny the motion.

The Chiropractic Board asks the Court to strike a laundry list of footnotes in the Acupuncture Association’s brief: specifically, footnotes 29, 32-36, and 38-39.

These footnotes simply reference websites that are readily available to the public

on the internet. But the Chiropractic Board claims that because the cited websites

are not in the clerk’s or reporter’s records, the Acupuncture Association may not

cite them in its brief.

Links to these websites were included in the Acupuncture Association’s brief for the Court’s reference, if the Court wishes to consult them. The question

before this Court is one of law, not one of fact that is dependent on evidence. The

Acupuncture Association is not attempting to put new evidence into the record by

attaching copies of documents to its appendix. ^[1] Referencing internet websites in *3 appellate briefs—even if hard copies of the linked documents were not put into

evidence in the trial court—is a common practice, one that the Office of the

Attorney General routinely follows. ^[2] Further, a court may take judicial notice of a fact that is not subject to reasonable dispute because it “can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” T EX . R. VID . 201(b).

A court may take judicial notice at any state in a proceeding. Id. 201(d); see also

Pub. Util. Counsel v. Pub. Util. Comm’n of Tex. , 878 S.W.2d 598, 600 (Tex.

1994). Here, it cannot reasonably be questioned that these internet websites say

what they say. Indeed, the Chiropractic Board does not even attempt to question

these websites’ accuracy. The cited websites are mostly those of accrediting bodies

that are expressly referenced in Acupuncture Board and Chiropractic Board rules.

Thus, the Court may take judicial notice of these websites.

*4 PRAYER

Appellant Texas Association of Acupuncture and Oriental Medicine respectfully prays that this Court deny the Chiropractic Board’s motion to strike.

The Acupuncture Association further requests any other relief to which it may be

entitled.

Respectfully submitted, By: /s/ Craig T. Enoch Texas Bar No. 00000026 cenoch@enochkever.com Melissa A. Lorber Texas Bar No. 24032969 mlorber@enochkever.com Shelby O'Brien Texas Bar No. 24037203 sobrien@enochkever.com NOCH K EVER PLLC 600 Congress Avenue Suite 2800 Austin, Texas 78701 512.615.1200 Telephone 512.615.1198 Fax Attorneys for Texas Association of Acupuncture and Oriental Medicine *5 CERTIFICATE OF SERVICE I hereby certify that, on October 29, 2015, the Acupuncture Association’s Response to the Chiropractic Board’s Motion to Strike was served via electronic

service on the following:

Joe H. Thrash

Assistant Attorney General

Administrative Law Division

P.O. Box 12548

Austin, Texas 78711

Joe.Thrash@texasattorneygeneral.gov

/s/ Craig T. Enoch

[1] See Burke v. Ins. Auto Auctions Corp ., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (“an appellate court cannot consider documents or hearings that are cited in the brief and attached as appendices if they are not formally included in the record on appeal”) (emphasis added); In re Estate of Bendtsen , 230 S.W.3d 823, 830 (Tex. App.—Dallas 2007, pet. denied) (a court should not consider evidence attached to a brief that is not included in the appellate record—such as new affidavits).

[2] See Glenn Hegar, in his Official capacity as Texas Comptroller, and Ken Paxton, in his Official Capacity as Texas Attorney General v. Texas Small Tobacco Coalition , Petitioner’s Brief on the Merits, at 8, 10, 12, 18-19, 24-25, 59, available at: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=bc596889-bf61-4627- 9d27-aabddbfb9bb9&coa=cossup&DT=BRIEFS&MediaID=19589422-da99-407a-81c1- 61f33732e971.