Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/1/2015 10:04:10 AM JEFFREY D. KYLE Clerk No. 03-15-00262-CV THIRD COURT OF APPEALS 12/1/2015 10:04:10 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00262-CV *1 ACCEPTED ^[8026365] CLERK _______________________________________________________________

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN _______________________________________________________________

TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant , v.

TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees . ________________________________________________________________

On Appeal from the 201st Judicial District Court Of Travis County, Texas Cause No. D-1-GN-14-000355 __________________________________________________________________

APPELLEES’ THIRD MOTION TO STRIKE __________________________________________________________________

KEN PAXTON

Attorney General of Texas

State Bar No. 19995500 CHARLES E. ROY Administrative Law Division

First Assistant Attorney General O FFICE OF THE A TTORNEY G ENERAL OF

T EXAS JAMES E. DAVIS P.O. Box 12548, Capitol Station

Deputy Attorney General for Civil Austin, Texas 78711-2548

Litigation Telephone: (512) 475-4203

Facsimile: (512) 320-0167 DAVID A. TALBOT, JR. Joe.Thrash@texasattorneygeneral.gov

Chief, Administrative Law Division

ATTORNEYS FOR APPELLEES *2 APPELLEES’ THIRD MOTION TO STRIKE

The Texas Board of Chiropractic Examiners and Yvette Yarbrough,

Executive Director (collectively, “Board”) move to strike those portions of the briefs

of amicus Council of Colleges of Acupuncture and Oriental Medicine (CCAOM),

and the Reply Brief of Appellant Texas Association of Acupuncture and Oriental

Medicine, that rely on documents outside the Clerk’s Record and the documents

themselves, because they were not presented to or relied upon by the trial court in

rendering its judgment, and the documents are not part of the Clerk’s Record or

otherwise made a part of the record on appeal. Now that Appellee has moved to

strike those portions of Appellant’s brief that improperly rely on material that

Appellant failed properly to introduce in evidence in this case, this amicus has been

enlisted to attempt to expand the record in this case. Because this amicus brief is

merely a back-door attempt to expand the evidentiary record before this Court, those

portions of the amicus brief that rely on or incorporate the same documents that

Appellant sought to introduce should be struck, as well as other parts of the amicus

brief that cite factual material outside the record. Further, in its Reply Brief,

TAAOM again attempts to enlarge the record with reference to a recording of a

hearing that was not introduced into the record at the trial court.

The objectionable portions of the CCAOM amicus brief include the

following:

1. Footnote 1. These are the American College of Acupuncture and Oriental

Medicine (Houston), AOMA Graduate School of Integrated Medicine

(Austin), and Texas Health and Science University (Austin). For a complete

list of all member schools of the Council, see

http://www.ccaom.org/members.asp?sort=state. Concerning the Council

generally, see www.ccaom.org.

2. Footnote 2. See

http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf

[hereinafter cited as CNT Manual ].

3. Footnote 3. See

file:///C:/Users/CCAOM/Downloads/CNT%20Requirements.pdf

4. Footnote 4 . See http://www.nccaom.org/regulatory-affairs/state-licensure-

map. Most recently, North Dakota authorized recognition of the national

certification exams of NCCAOM. See N.D. Cent. Code § 43-6105(1)(b),

added by Sen. Bill No. 2191 (2015) https://legiscan.com/ND/text/2191/2015.

5. Footnote 8. ACAOM, Accreditation Manual—Structure, Scope, Process,

Eligibility Requirements, and Standards 26 (July 2012), Standard 8.1a. See

http://www.acaom.org/documents/accreditation_manual_712.pdf. The

minimum length of an Oriental Medicine curriculum, which includes the

study of Chinese herbology in addition to acupuncture, is at least four

academic years and consists of at least 2,625 hours of which there are 705

hours in Oriental medical theory, diagnosis, and treatment techniques in

acupuncture and related studies; 450 hours in didactic Oriental herbal studies;

and 870 hours in integrated acupuncture and herbal clinical training. Id.

6. Footnote 9. CNT Manual at 3-23,

http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf

7. Footnote 10. Id. at 4

The objectionable portion of the Appellant’s Reply Brief includes the following:

Footnote 15. See also Chiropractic Board July 11, 2012 ad hoc meeting, at

1:46:00, available at

https://www/tbce/state/tx/us/Hearings/Acupuncture20120711.MP3, at which

Yvette Yarbrough admitted that “while [acupuncture] is in practice an incisive

procedure, it’s defined as non-incisive.”

Texas Rule of Appellate Procedure 34.1 states the following: “The appellate

record consists of the clerk’s record and, if necessary to the appeal, the reporter’s

record.” The documents listed above do not appear in, nor are they referenced in

any pleading that is a part of the clerk’s record. Amici are subject to the same rules

as the parties when filing briefs with the Court. Tex. R. App. P. 11(a). When these

documents are referenced in the amicus; brief, the documents do not contain a

reference to the Clerk’s Record. Tex. R. App. P. 38.1(g). This Court may only

review the record as filed and may not consider documents neither in the record nor

considered by the trial court. Burke v. Ins. Auto Auctions Corp ., 169 S.W.3d 771,

775 (Tex. App.—Dallas 2005, pet. denied). There is significant overlap between the

documents cited in the amicus brief and the Appellant’s Brief. Just as the documents

and argument based upon them were improper in TAAOM’s Brief, they are

improper in the amicus brief and the Reply Brief. Accordingly, this Motion to Strike

should be granted and the Court should not review the above documents cited by

amicus or the arguments supported by these documents in the Reply Brief.

Further, the Court should not take judicial notice of any of the documents.

Judicial notice is neither requested nor appropriate in this case. These documents

are matters of evidence that should have been introduced at the trial court to be

considered. For the reasons stated in the Board’s Second Motion to Strike, these

documents should not be considered by the Court.

PRAYER The Board asks the Court to grant this Appellees’ Third Motion to Strike and

delete from the consideration of this case all documents pertaining to factual matters

outside the Clerk’s Record and all arguments based upon those documents.

Respectfully submitted, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division /s/ Joe H. Thrash Bar No. 19995500 Administrative Law Division P. O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4203 Facsimile: (512) 320-0167 Joe.thrash@texasattorneygeneral.gov ATTORNEYS FOR APPELLEES *6 CERTIFICATE OF CONFERENCE I hereby certify that I have conferred with opposing counsel concerning the

Second Motion to Strike and they are not in agreement with the Motion.

/s/ Joe H. Thrash Assistant Attorney General CERTIFICATE OF COMPLIANCE In compliance with Texas Rule of Appellate Procedure 9.4(i)(3) and relying

on the word count function in the word processing software used to produce this

document, I certify that the number of words in this document is 788.

/s/ Joe H. Thrash JOE H. THRASH *7 CERTIFICATE OF SERVICE A true and correct copy of the foregoing Second Motion to Strike was served

via e-serve and/or e-mail on this the 1st day of December, 2015 to the following:

Craig T. Enoch Via electronic service and/or email

ENOCH KEVER PLLC

600 Congress Avenue

Suite 2800

Austin, Texas 78701

cenoch@enochkever.com

Melissa A. Lorber

mlorber@enochkever.com

Shelby O’Brien

sobrien@enochkever.com

Telephone: (512) 615-1200

Facsimile: (512) 615-1198

Attorneys for Appellant Texas Association of

Acupuncture and Oriental Medicine

Jason Wright

President, Council of Colleges of Acupuncture and Oriental Medicine

2360 State Rte. 89

Seneca Falls, NY 13148

Telephone: 315 568-3268

jwright@nycc.edu

/s/ Joe H. Thrash