but before addressing the merits of like to make just a couple of points on the standing argument first is that we know that the fourth amendment stand it cannot be raised by curiously so that means without ownership or possession of the records there was no injury to dr berry here that's the distinction with his attic case right in terms of standing there with there was not a standing army in made in the zeta case unit that's correct because he was the owner of the had possession and ownership of those records in who would have the ability to to let the board make copies of them so the records were for patients treated by knocking down correct that's correct  subpoena listing his name even if it just listed his name ben if that were the case would you think he has an interest or do you still think it just turns on ownership your honor i would say that still turns on the ownership it just we at the minimum necessary requirement under scrutiny under under texas law does the patient have any ownership interest in the records no going to it if a patient requests their records a copy of those records will be sent to another for instance if you're transferring doctors a copy of your records will be made of but the original doctor of the river clinic holds on to those records unless they are transferred officially under law and it's just it's a different relationship when it comes to and if and whether there's a fourth amendment interest is a different question from whether there could be a privilege challenge to the use of the documents in a legal proceeding i mean you know the government you someone can se documents you can still say that i have privilege so you can't use those on privileged grounds yes i mean that that would be a separate issue and we went through that also in the briefing texas for how it treats the there is a comping records that don't belong to the doctor and the patients have no right under federal or state law to keep private from the board cannot be a for the violation it's the doctor other two points here to consider on the meri his is is a binding decision on us insofar as its interpretation of force concerned it so you're on a good leave it used for in its analysis of the qualified immunity piece  saying that because forte is sitting out there in the then the defendants here had a reasonable belief that they should have that what they were doing would be acceptable under under circuit law it did not address court under the the burger analysis and and so again as we've pointed out here the discretion of the inspecting officers is limited both by the statutory regulatory scheme and it's limited by the complaints that are filed with the board so the board doesn't choose which doctors it's going to be inspecting on its own it receives a complaint from either another doctor or  a patient a family member sometimes or or another agency that complaint is filed with the board the board then looks at it first to determine if it's the type of complaint that the board would have jurisdiction over and secondly the that to see if there is a factual predicate for the complaint and of it is there an actual a legitimate potential complaint at issue then following that they will make a determination on things that limits the discretion of the inspecting officers and it also the statutory scheme advises the owner that the search is being made pursuant to law and has a properly defined scope there is the the formal complaint served and then also identified the exact i don't is that that we're going to be at issue in this case so there were a couple of things stated in the response yesterday the twenty eight j letter that i wanted to address first is that the search for one of the searches were made of all the records that's not the case as the record shows that one fifty three and then confirmed later by the district court to sixty four of this was not all records this was the the inspectors gave the subpoena to the to the custodian of records patient records were then brought to the investigators so it was for a defined window was it that april first april thirtieth of that year and they only inspected the things that were brought to them and they w found that the complaint that clearly established right was longstanding so that's the reason people know about it on the statutory scheme it is she did not satisfy either two boards functions and found their privacy interests involved the same privacy interests were found by both case for saying that your client has a fourth amendment interest when he's not the owner of that business that searched because he's not the only reason not the owner right not the right  they're not his documents is the point when if a law firm is search say some big houston law firm asserts an associate who has no ownership interest in that law firm i don't think would have standing even if all her legal files were seized during that search i don't think she'd have standing  were in fact privacy hundred to two hundred a last week our court said back does provide qualified immunity it was close enough to provide to this question to provide qualified immunity so how do you get around the well there is a several questions your first and foremost is to direct the odds with the let's just go back to the basics here so that your your client is a doctor who did not have an ownership interest in the clinic or an ownership interest in the records doesn't own is a violation of the fourth amendment is that i just want to understand your your claim i don't quite see where what where your whole theory is going s s to this particular person previous discussion but if if we take this ada case on its face in other words if we assume for the purposes of this question to you that is that it doesn't violate the rule of orderliness taking that on  face is this a closely controlled industry as an end insofar as that term is significant here it could be under the feet opinion didn't fully go into that because it it said that we look at closely controlled substances and the kind of carpet out as a subset and they said it may be the case that this would be considered a closely controlled industry but we're not going to fully explore that here because we believe that it violates a burger factory and now mr de mar says that if it doesn't fit under controlled substances because there were no controlled substances crowned here  that's a distinction without a difference here beck dealt with both the texas controlled substances act as well as a comparable there were there were parallel statutes at issue in beck and the the court in beck was addressing whether the burger factors had been met or not they had already virtually they didn't it was an explicit holding they had assumed that the dental industry was a closely controlled  narcotics yes arm but again the question here is what are the doctors doing so whether or not i mean most doctors offices i would think have those around but even if we assume that there were none here  in the district or could supply of you that if you look at the record it to sixty seven the district court just said well of course he is standing because the records are being used against him but but as we discuss these cases are under submission