No. 03-14-00774-CV 

IN THE THIRD COURT OF APPEALS 

AUSTIN, TEXAS 

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS

AND NICOLE ORIA, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR, 

Appellant, 

v. 

ELLEN JEFFERSON, D.V.M, 

Appellee, 

ON APPEAL FROM THE 250TH JUDICIAL DISTRICT

OF TRAVIS COUNTY, TEXAS

BRIEF OF AMICUS CURAIE

CITY OF AUSTIN

ANNE L. MORGAN, Interim City Attorney 

MEGHAN L RILEY, Division Chief, Litigation 

MICHAEL SIEGEL, Assistant City Attorney 

State Bar No. 24093148 

CHRISTOPHER COPPOLA, 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

ACCEPTED

03-14-00774-CV

7470675

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/21/2015 10:53:30 AM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/21/2015 10:53:30 AM JEFFREY D. KYLE Clerk
ii 

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 
iii 

INDEX OF AUTHORITIES 

Texas Constitution 

Article VI, § 5 ........................................................................................................... 1 

State Statutes 

Texas Occupational Code § 800.004 ..................................................................... 1, 3
1 

INTEREST OF AMICUS CURAIE

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 TEX. CONST. 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 TEX. OCC. CODE. § 800.004(1). 

The City is paying all fees and expenses to prepare this brief. See TEX. R.

APP. P. 11. 
2 

SUMMARY OF THE ARGUMENT

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 
3 

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. 

ARGUMENT

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 

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). 
4 

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 

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). 
5 

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-forservice 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 publicprivate 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. 

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.
6 

 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. 
7 

PRAYER

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, 

ANNE L. MORGAN, Interim City Attorney 

MEGHAN L RILEY, Division Chief, Litigation 

/s/ Michael Siegel 

MICHAEL SIEGEL, Assistant City Attorney 

State Bar No. 24093148 

CHRISTOPHER COPPOLA, 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
8 

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. 

VIA 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., 28th Floor 

Austin, TX 78701 

dbrown@ebblaw.com 

/s/ Michael Siegel 

MICHAEL SIEGEL

1
9 

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