No. 03-14-00774-CV

IN THE THIRD CO URT 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, A

ppellee , 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 ACCEPTED 03-14-00774-CV 7470675 THIRD COURT OF APPEALS

AUSTIN, TEXAS 10/21/2015 10:53:30 AM JEFFREY D. KYLE

CLERKii TABLE OF CONTENTS TABLE OF CO NTENTS .......................................................................................... ii
INDEX OF AUT HORITIES .................................................................................... iii
INTEREST OF AM ICUS CU RAE ........................................................................... 1 SUMMARY OF AR GUMENT ................................................................................ 2 ARGUMENT . ............................................................................................................ 3
I. Without the Ownership Exemption, the City Would Face Financial Pressure to Sacrif ice the Lives of Healthy Homeless Animals to Avoid Increased Taxes or Cuts to Essential Serv ices . ................................................................................ 3
PRAYER ................................................................................................................... 7 CERTIFICATE OF SERVIC E .................................................................................. 8 CERTIFICATE OF COMPLIANC E ........................................................................ 9iii INDEX OF AUTHORITIES Texas Constitution Article VI, § 5 ........................................................................................................... 1 State Statutes Texas Occupational C ode § 800.004

..................................................................... 1, 31 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 Serv ices which takes responsibility for the care and adoption of homeless animals. See T EX
. C ONST . art. XI, § 5 (granting home-rule cities broad disc retionary 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 discre tionary 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. 11.2 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 possibl e care for its homeless animals. Whereas prior to the adoption of its “no kill” poli cy the City would destroy thousands of animals each year that were neither te rminally 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; encour age 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 contr acts with outside organizations to provide spay/neuter, adoption, and care services, and the Anim al Services Department recruits numerous volunteers to assist w ith 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 investigate3 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 comprehensiv e 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 homele ss animals owned by a public or private animal shelter. A RGUMENT I. W ithout 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 Veterina ry Medical Examiners (TSBVME) has narrowly argued the issues on appeal, sugge sting 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 decisi on to investigate Dr. Jefferson despite both (a) the clearly established owners hip 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 St ate 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 fo llowing 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 c ontinued enforcement of the ownership exemption that motivates this submission as amicus curiae. As discussed above, the City is firmly invested in a compre hensive, “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 re formulate its approach to animal services. Amici Alley Cat Allies provides an excellent su mmary 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. Th ese limitations include the volume of animals handled, the space in whic h animals are seen or housed, the well-being of animals presented, and a disparity in financial resources. Shelters and rescue or ganizations 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 veteri nary 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 E llen 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. Fi nally, m ost shelters or rescue organizations do not have anywhe re near the financial resources, especially when calculated on a per-a nimal basis, compared to private veterinary practices, which are us ually 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 taxpa yers 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 Servi ces Department also relies on “in kind” services and outside expenditures by its nonprofit partners. Austin Pets Alive! (APA), among other organizati ons, 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 Alli es in Support of Dr. Jefferson , at 8-9. 5 In practice, APA accepts an imals far in excess of the contractual minimum. In the most recent year for which data is av ailable, APA accepted over 3,800 homeless animals from the City of Austin.6 APA has assumed these obligations for Austin-area ani mals 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 cer tain operating expenses, and the City also funds electric, water, and wastewater utility char ges, but otherwise, APA assumes full responsibility for the maintenance and operation of TLAC. In other words, APA has been an es sential 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 “own ership 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 ve terinary services that are essential to fulfillment of the City’s “no kill” objections. The c onsequences 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 cu tting other necessary public services.7 P RAYER The City of Austin requests that the Court of Appeals affirm that nonprofit shelter veterinary organizations can rely on the “ownersh ip 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 AUSTIN8 CERTIFICATE OF SERVICE I hereby certify that a true and corr ect copy of the foregoing was sent on October 2 , 2015, via an electr onic filing service provider.
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@texasatto rneygeneral.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 19 CERTIFICATE OF COMPLIANCE This brief complies with the type-volum e 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