NO. 03-14-00774-CV I N THE C OURT OF A PPEALS FOR THE T HIRD D ISTRICT OF T EXAS AT A USTIN

________________________________ _______________________________ ___ T EXAS S TATE B OARD OF V ETERINARY M EDICAL E XAMINERS AND N ICOLE O RIA , I N H ER O FFICIAL C APACITY AS E XECUTIVE D IRECTOR Appellant , V
. E LLEN J EFFERSON , D.V.M. Appellees

.

________________________________ _______________________________ __ O N A PPEAL FROM THE 250 TH J UDICIAL D ISTRICT C OURT OF T RAVIS C OUNTY , T EXAS

________________________________ _______________________________ ___ B RIEF OF A PPELLEE E LLEN J EFFERSON , D.V.M.

D AVID F. B ROWN State Bar No. 03108700 dbrown@ebblaw.com D AVID P. B LANKE State Bar No. 02453600 dblanke@ebblaw.com E WELL , B ROWN & B LANKE , LLP 111 Congress Ave., 28 th Floor Austin, TX 78701 Ph: (512) 457-0233 R YAN C LINTON State Bar No. 24027934 rdclinton@dgclaw.com D AVIS , G ERALD & C REMER , P.C. 111 Congress Ave., Suite 1660 Austin, Texas 78701 Ph: (512) 537-9938 Fax: (432) 687-1735
Counsel for Appellee Ellen Jefferson, D.V.M. Oral Argument Requested ACCEPTED 03-14-00774-CV 6829376 THIRD COURT OF APPEALS

AUSTIN, TEXAS 9/8/2015 3:05:55 PM JEFFREY D. KYLE

CLERKi I DENTITY OF P ARTIES Appellants/Defendants: Texas State Board of Veterinary M edical Examiners (“TBVME”) and Nicole Oria, In Her Official Capacity as Executive Director Counsel for Defendants: Andrew Lutostanski State Bar No. 24072217 andrew.lutostanski@tex asattorneygeneral.gov Ted A. Ross State Bar No. 24008890 ted.ross@texasattorneygeneral.gov Office of the Attorney General of Texas Administrative Law Division P. O. Box 12548 Austin, TX 78711 (512) 475-4200ii Appellee/Plaintiff: Ellen Jefferson, D.V.M. (“Dr. Jefferson”) Counsel for Dr. Jefferson: Trial & Appellate Counsel: David F. Brown State Bar No. 03108700 dbrown@ebblaw.com David P. Blanke State Bar No. 02453600 dblanke@ebblaw.com Ewell, Brown & Blanke, LLP 111 Congress Ave., 28th Floor Austin, TX 78701 Ph: (512) 457-0233 Appellate Counsel: Ryan Clinton State Bar No. 24027934 rdclinton@dgclaw.com Davis, Gerald & Cremer, P.C. 111 Congress Ave., Suite 1660 Austin, Texas 78701 Ph: (512) 537-9938 Fax: (432) 687-1735iii T ABLE OF C ONTENTS I DENTITY OF P ARTIES

.............................................................. .................................... i A PPENDIX
.............................................................. .................................................... iv T ABLE OF A UTHORITIES

.............................................................. ................................ v S TATEMENT OF THE C ASE

.............................................................. ......................... viii S TATEMENT R EGARDING O RAL A RGUMENT

.............................................................. . x I SSUES P RESENTED

.............................................................. ...................................... xi I NTRODUCTION

.............................................................. .............................................. 1 S TATEMENT OF F ACTS

.............................................................. ................................... 3 S UMMARY OF THE A RGUMENT

.............................................................. ...................... 3 A RGUMENT

.............................................................. ................................................... 8 I. Board Rules Inconsistent W ith the Owner Exemption Are Facially Invalid and May Not Be Applied to Dr. Jefferson. ..... ............ 8 A. The Analytical Framewo rk for Determining the Invalidity of the B oard’s Rules ............................... ................... 8 B. The Purposes of Chapter 801 and the “Owner Exemption” .................................................... .......................... 11 C. Each of the Challenge d Rules Is Invalid ....................... ........... 14 1. Board Rule § 573.72, Emp loyment by Nonprofit or Municipal Corpora tions, Is Invalid. ........................... ..... 17 2. Board Rule § 573.80(2), Defining the Statutory Term “Designated Caretaker,” Is Invalid. ...................... 22 P RAYER

.............................................................. ....................................................... 29 C ERTIFICATE OF S ERVICE

.............................................................. ............................ 31 C ERTIFICATE OF C OMPLIANCE

.............................................................. .................... 32iv A PPENDIX 22 T EX
. ADMIN

. C ODE § 573.72 ..................................................... .................... T AB A
22 T EX
. ADMIN

. C ODE § 573.80(2) .................................................. .................. T AB B Trial Court Judgment .......................................... .............................................. T AB Cv T ABLE OF A UTHORITIES Page(s) Cases Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson , 209 S.W.3d 644, 651- 52 (Tex. 2006) ............................ ....................................... 9 City of Corpus Christi v. Public Util. Comm’n , 51 S.W.3d 231 (Tex. 2001)...................................... ........................................... 22 City of Rockwall v Hughes, 246 S.W.3d 621, 625- 26 (Tex. 2008) ............................ ..................................... 10 Employees Ret. Sys. of Tex. v. Jones , 58 S.W.3d 148, 154 (Tex. App. —Austin 2001, no pet.) ........... ........................... 9 Gulf Coast Coalition of Cities v. PUC , 161 S.W.3d 706 (Tex. App.—Aus tin 2005, no pet.) ............... ....................... 9, 10 Harlingen Family Dentistry, P.C., v. Tex. HHS Comm’n , 452 S.W.3d 479 (Tex. App.—Austin 2014, pet. filed) ............

................... passim Physician Assistants Business Alli ance of Texas, LLC v. Texas Medical Board , 2015 Tex. App. LEXIS 1492 (February 13, 2015) ................. ........ 8, 9, 22, 25, 26 PUC of Texas v. City Public Service Board of San Antonio , 53 S.W.3d 310 (Tex. 2000)...................................... ............................................. 9 Railroad Comm’n of Tex. v. Lone Star Gas Co. , 844 S.W.2d 679, 685 (Tex. 1992) ............................... ....................................... 10 State v. Shumake , 99 S.W.3d 279, 284 (Tex. 2006) ................................ .......................................... 8 In re State Bd. for Educator Certification , 452 S.W.3d 802, 808- 09 (Tex. 2014) ............................ ..................................... 17 Teladoc, Inc. v. Tex. Med. Bd ., 453 S.W.3d 606 (Tex. App.—Austin 2014, pet. filed) ............ ................ 8, 16, 17vi Texas Bd. of Chiropractic Exam iners v. Tex. Med. Ass’n , 375 S.W.3d 464 (Tex. App.—Austin 2012, pet. filed) ............ .......... 9, 10, 20, 28 Texas Office of Public Utility Couns el v. Public Util. Comm’n of Texas 131 S.W.3d 314, 321 (Tex. App.—A ustin 004, pet. denied) ....... ........................ 9 Texas Orthopaedic Ass’n v. Tex. State Bd. of Med. Exam’rs , 254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) ........... ........................ 10 Statutes Act of March 16, 1911, § 13 (Cha pter 76, General Laws) (“Act of March 16, 1911”) .............................................. ............................................ 12, 13 T EX
. G OV ’ T C ODE § 311.011 .................................................... ................................ 28 T EX
. G OV ’ T C ODE § 2001.038 ................................................... ........................ix, 2, 8 T EX
. O CC

. C ODE § 801.002(5) ................................................. ................................ 13 T EX
. O CC

. C ODE § 801.002(7) ................................................. ................................ 13 T EX
. O CC

. C ODE § 801.004 ....................................................

........................... passim T EX
. O CC

. C ODE § 801.151 .................................................... ...................... 11, 14, 16 T EX
. O CC

. C ODE § 801.251 .................................................... .................................. 11 T EX
. R EV
. C IV
. S TAT

. A NN . art. 7465a (1953) ........................................... .............. 13 T EX
. R EV
. C IV
. S TAT

. A NN . art. 7465a § 3 (1987) ....................................... ............ 13 T EX
. R EV
. C IV
. S TAT

. A NN . art. 8890 § 3 (1993) ........................................ ............. 13 Other Authorities 22 T EX
. A DMIN
. C ODE § 571.61 ..................................................... .......................... 23 22 T EX
. A DMIN
. C ODE § 573.72 .....................................................

................... passim 22 T EX
. A DMIN
. C ODE § 573.80(2) ..................................................

................. passim 20 T EX
. R EG . 6580 (August 25, 1995) ...................................... ......................... 18, 23vii 20 T EX
. R EG . 8905 (October 27, 1995) ..................................... ......................... 18, 23 31 T EX
. R EG . 5538 (July 14, 2006) ........................................ .................................. 18 31 T EX
. R EG . 9033 (November 3, 2006) ..................................... ............................. 18 http://www.merriam-webster.c om/dictionary/designate; http://www.merriam-webster.com/d ictionary/caretaker (last visit ed September 1, 2015) ............................................ ........................................... 27. 28 http://www.veterinary.te xas.gov/agency.php .................... ...................................... 14viii S TATEMENT OF THE C ASE Nature of the Case : This is a challenge to certain rules promulgated by the Texas Board of Veterinary Medical Examiners that interfere with an express, legislative exception to TBVME’s regulatory authority. 22 T EX
. A DMIN
. C ODE § 573.72, entitled “Employment by Nonprofit or Municipal Corporations,” and § 573.80(2), the definition of “designated caretaker,” expressly interfere with the right the Texas Legislature bestowed under T EX
. O CC

. C ODE § 801.004(1) that permits owners, their employees, or their designees to treat or care for the owner’s animals in any manner without regulation.
Trial Court : The Honorable Gisela D. Tr iana, sitting in the 250th Judicial District Court of Travis County, Texas Trial Court Disposition : Pursuant to the agreement of the parties, the trial court held a combined plea-to-the-jurisdiction hearing and trial on the merits on August 4, 2014. 2.RR.7-226. Following the trial, the trial court issued a letter ruling, 1.CR.852- 54, followed by a judgment, 1.CR.855-57. The trial court also issued findings of fact and conclusions of law. 2.CR.36-38. 1 In relevant part, the t rial court’s judgment: • denies TBVME’s plea to the jurisdiction with respect to Dr. Jefferson’s challenges to TBVME rules under T EX
. G OV ’ T C ODE § 2001.038, 1.CR.855-56; and • declares that 22 T EX
. A DMIN
. C ODE §§ 573.72 and 573.80(2) are “contrary to Section 801.004(1) of the Veterinary Practice Act and therefore invalid,” 1.CR.856-57.

1 The trial court clerk issued two volumes of the Clerk’s Recor d but mistakenly labeled both “Volume 1 of 1.” This brief will refer to the volume file d on December 17, 2014 as Volume 1, and the volume filed on January 13, 2015 as Volume 2. Citations to the Clerk’s Record herein will be in the form [Volume].CR.[Page]. Likewise , citations to the Reporter’s Record will be in the form [Volume].RR.[Page] or, if the citati on is to a page of an exhibit, [Volume].RR.[Exhibit:Page].ix Defendants and Dr. Jeffers on timely filed notices of appeal. 1.CR.866-67 (Defenda nts’ Notice); 1.CR.871-72 (Dr. Jefferson’s Notice).x S TATEMENT R EGARDING O RAL A RGUMENT Because those parts of the trial court’s judgment in favor of D r. Jefferson are consistent with the unambiguous terms of the Occupations Code a nd binding precedent from this Court and the Texas Supreme Court, this Cou rt may deem it unnecessary to hear oral argument before affirming the trial co urt’s judgment with respect to Dr. Jefferson’s rules challenges. Nonetheless, the Court may consider oral argument beneficial given the number of issues involved in this appeal. Accordingly, Dr. Jefferson respectfully requests the opportunit y to participate in oral argument.xi I SSUES P RESENTED Did the trial court err in finding that 22 T EX
. A DMIN
. C ODE §§ 573.72 and 573.80(2) are inconsistent with S ection 801.004(1) of the Texas Occupations Code, the “Owner Exemption” to the Veterinary Licensing Act?1 I NTRODUCTION For decades, the Texas Board of V eterinary Medical Examiners ha s had no authority to regulate “the treatment or care of an animal in an y manner by the owner of the animal, an employee of the owner, or a designated caretaker of the animal, unless the ownership, e mployment, or designation is est ablished with the intent to violate this chapter.” T EX
. O CC

. C ODE § 801.004(1) (the “Owner Exemption”). Despite this un ambiguous limitation on the TBVME’ s authority, the agency has attempted ove r the years to chip away at the express statutory limitation of the Owner Exemption through the adoption of rules that contr avene specific terms of the Veterinary Licensing Act (the “Act”), run counter to the general objectives of the statute, and impose burdens, conditions, or r estrictions in excess of or inconsistent with the relevant statutory provisions, incl uding the Owner Exemption. The Board Rules challenged in this case are instrume nts by which the TBVME neuters the Owner Exemption. Notwithstanding its recognition in its official publication in 2012 that animal shelters like San Antonio Pets A live! (“SAPA”), one of Ellen Je fferson, D.V.M.’s (“Dr. Jefferson’s”) organizations, may provide treatment and ca re to animals owned by the shelters without regard to the agency’s rules and regulations because shelters are “exempt” from the TB VME’s jurisdiction as a matter of law, the TBVME brought charges against Dr. Jefferson contending that her treatment or2 care of the animals SAPA owned, a nd the treatment or care provi ded by other employees or designated caretakers of SAPA, was subject to disc ipline under the Act and its rules. Dr. Jeffers on challenged both the TBVME’s ultra vires prosecution and certain rules und er which that action was prose cuted. After a combined plea hearing and trial on the merits, which in cluded a hearing on the validity of the TBVME’s rules, the trial court a greed that certain TBVME administrative rules cont radicted or unduly burdened the legislative Owner Exemption and found those rules to be invalid. For each of the reasons presented in this brief, this Court should affirm the trial cou rt’s judgment under Section 2001.038 of the Texas Gove rnment Code invalidating 22 T EX
. A DMIN
. C ODE §§ 573.72 and 573.80(2) and hold, pursuant to Texas law, that the TBVME’s rules that conflict with the Owne r Exemption are invalid and ma y not be enforced.3 S TATEMENT OF F ACTS This appeal arises out of the TBVME’s use of certain administra tive rules in its ultra vires prosecution of Dr. Jefferson for activities excepted from the TBVME’s jurisdiction by the Owner Exemption. The statement of facts set forth in Dr. Jefferson’s appellant’s brief is useful to an understand ing of the extent to which the TBVME’s adoption, application, and enforcement of the rules challenged herein inte rfere with or impair, or threaten to inte rfere with or impair, Dr. Jefferson’s legal rights or p rivileges. Dr. Jefferson will not, however, burden the record with a redundant explication of the facts that give rise to this case, but respectfully refers the Court to her appellant’s brief.
S UMMARY OF THE A RGUMENT At the trial court, Dr. Jeffers on challenged several TBVME rule s, contending that they were facia lly invalid because they squarel y contradict the terms and policy of Section 801.00 4(1) of the Texas Occupations Code, the “Owner Exemption” to the Veterinary Licensing Act. After a tri al on the merits, the trial court found two TBVME rules, 22 T EX
. A DMIN
. C ODE §§ 573.72 and 573.80(2) to be invalid. The TBVME appeals that determination. The challenged rules are invalid b ecause they contravene specif ic statutory language, run counter to the general objectives of the statute from which they arise, or impose burdens, conditions, or restrictions in excess of or inconsistent with the4 relevant statutory provisions. W here, as here, the words of th e statutory provisions in issue are not defined by the Legislature and have no technic al or acquired meaning, this Court must construe the words according to their plain and common meaning unless a contrary intent is apparent from the context. Because the Owner Exemption is unambiguous, the TBV ME is owed no deference in its interpretation. The TBVME has shown through the adoption of the challenged rule s its disdain for the Legislature’s recognition of the property right s of animal owners through the repeated enactment o f the Owner Exemption. That th e Board has a concern that the Owner Exemption may be abused if its rules are not upheld does not excuse the Board’s adoption of provisions intended to give the Board itself authority the Legislature reserved to animal owners under the O wner Exemption. The Legislature did not grant the agency authority to restrict the exemption, and it may not grant itself new aut hority it thinks expedient. Board Rules §§ 573.72 and 573.80(2) are facially invalid and vo id for the following reasons:
1. Board Rule § 573.72, “Employme nt by Nonprofit or Municipal Corporation.” a. Board Rule § 573.72(b) and (c) each make persons to whom the Act “does not apply” subject to it. In contrast to the terms o f the Owner Exemption, under Board Rule § 573.72, owners, employees of owners, and desi gnated caretake rs are “not5 exempt” but “shall be liable” for any violation of the Act or TBVME rules. This rule, therefore, directly contradicts the Owner Exemption whenever a vet erinarian is employed by or designated to care for the animals of a nonprofit or municipal corporation. b. Board Rule § 573.72(c) improperly extends liability to veterinarians employed by nonpro fit or municipal corporations for the actions of others, even though those persons are themselves exempt from the Act as employees or designees. This rule places a burden upon the Owner Exemption by making an exempt veterinarian lia ble for violations of the Act or Board rules resulting from the otherwise exempt activities o f anyone, including an employee or volunteer of a nonprofit or municipal corporation, in treating or caring for an animal the nonprofit or municipal corporation owns. Board Rule § 573.72, therefore, contradicts the express terms o f the Act and extends TBVME authority where the Legislature has determined th at people should be free from agency regul ation. Board Rule § 573.72 is invalid.6 2. Board Rule § 573.80, Definition of “Designated Caretaker.” a. Abandoning the plain meaning of the term “designated caretaker” in the Owner Exemption, the TBVME contradicts the Legislature’s recognition of the property rights of animal owners in lieu of a scheme of regulation that usurps the Owner Exemption for caretakers an o wner lawfully designates. b. In contrast to the position of the TBMVE, it is the Legislat ure that has the power to decide the scope of its authorizing statutes, not the agency. Yet t he TBVME definition negates the exemption where the designated caretaker “engag[es] in any aspect of the practice of veterinary medicine (including alternate therapies),” regardle ss of capacity, circumstances, o r intent. As this Court has held on numerous occasions, a rule i s void where it conflicts with the plain language of a statute. A rule may not narrow the scope of a legislatively mandated exemption. c. Further, the TBVME definition of “designated caretaker” improperly burdens the right of an owner, or a caretaker the owner designates, to the express statutory benefits of the Owne r Exemption. Board Rule § 573.80(2) establishes a presumption7 that a designated caretaker of an animal intends to violate the Act if she “treats an animal for a condition that the animal wa s known or suspected of having pri or to the person being named a designated caretaker . . .,” unless she obtains veterinary supervision. Through the challenged rules, the TBVME transparently imposes b urdens, conditions, or restrictions upon the Owner Exemption that contr avene the unambiguous terms of the Act. The TBVME’s enforcement of Chapt er 801 and its rules where the Owner Exempti on is applicable is an illegitimat e exercise of a power contradictory to its enabling Act, interfering with or im pairing the legal rights of owners, employees of owners, or the owners’ designees to be free of regulation. The challe nged rules contravene specific statutory language, run counter to the general objectives of the statute, and impose ad ditional burdens, conditions, or restrictions in ex cess of or inconsistent with t he relevant statutory provision. The Court should affirm the trial court’s finding t hat the challenged rules are invalid.8 A RGUMENT I. B OARD R ULES I NCONSISTENT W ITH THE O WNER E XEMPTION A RE F ACIALLY I NVALID AND M AY N OT B E A PPLIED TO D R . J EFFERSON . A. The Analytical Framework for Determining the Invalidity of the Board’s Rules Section 2001.038(a) of the Admini strative Procedure Act, Chapte r 2001, Texas Government Code, provides a court with the jurisdiction t o hear a challenge to the validity or applicability of an administrative rule when it is alleged that “the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.” 2 The Administrative Procedure Act authorizes Texas courts to “render a declaratory judgment without regard to whether the [plaintiff first] requests the state agen cy to rule on the validity or applicability of the rule in question.” 3 The challenged Board Rules §§ 573.72 and 573.80(2) interfere with the right of animal owne rs to treat or care for the animals they own under the Owner Exemption. The issues in this case involve the construction of TBVME’s aut horizing statute and its rules; accordingly, this Court reviews the tria l court’s conclusions de

novo. 4 A rules-validity challenge unde r Section 2001.038 of the Texa s

2 T EX
. G OV ’ T C ODE § 2001.038(a).
3 See T EX
. G OV ’ T C ODE § 2001.038(d).
4 Physician Assistants Business Alliance of Texas, LLC v. Texas Medical Board , 2015 Tex. App. LEXIS 1492 at *5 (February 13, 2015) ( citing State v. Shumake , 199 S.W.3d 279, 284 (Tex. 2006)); Teladoc, Inc. v. Tex. Med. Bd ., 453 S.W.3d 606, 614 (Tex. App.—Austin 2014, pet. filed).9 Government Code tests a rule on procedural and constitutional g rounds, and specifically, on the question of whether the agency “acted cont rary to statute.” 5 A rule is presumed valid, and Dr . Jefferson has the burden of dem onstrating its invalidity. 6 “To establish the rule’s facial invalidity,” Dr. Jefferson “m ust show that the rule: (a) contravenes specific statutory language; (b) runs counter to the general objectives of the statute; or (c) imposes burdens, cond itions, or restrictions in excess of or inconsistent with the relevant statutory provis ions.” 7 Looking first to the plain language of the statute to ascertain and give effect to legislative intent, the cour t looks no further than the lite ral text if the language is unambiguous. 8 Where the words of the statute in issue are not defined by th e Legislature and have no techni cal or acquired meaning, the Cour t must “construe the words according to their plain and common meaning unless a contrary intent is apparent from the context.” 9

5 Gulf Coast Coalition of Cities v. PUC , 161 S.W.3d 706, 712 (Tex. App.—Austin 2005, no pet.) ( citing State of Texas Office of Public Utility Counsel v. Public Util. Comm’n of Texas , 131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied)); see also PUC of Texas v. City Public Service Board of San Antonio , 53 S.W.3d 310, 315 (Tex. 2000).
6 Gulf Coast Coalition , 161 S.W.3d at 712.
7 Id

. See also Texas Bd. of Chiropractic Examiners v. Tex. Med. Ass’n , 375 S.W.3d 464, 474 (Tex. App.—Austin 2012, pet. filed).
8 Physicians Assistants , 2015 Tex. App. LEXIS at *5 ( citing Employees Ret. Sys. of Tex. v. Jones , 58 S.W.3d 148, 154 (Tex. App.—Austin 2001, no pet.); Alex Sheshunoff Mgmt. Servs., L.P., v. Johnson , 209 S.W.3d 644, 651-52 (Tex. 2006)).
9 Texas Bd. of Chiropractic Examiners , 375 S.W.3d at 474 ( citing City of Rockwall v. Hughes , 246 S.W.3d 621, 625-26 (Tex. 2008)).10 If a statute is ambiguous, an agency is given some deference in interpreting its enabling statute where the ag ency’s interpretation is both reasonable and does not contradict the plain language of the statute, 10 but no deference is given to the agency’s interpretation where the statute is unambiguous. 11 In this context, “[t]he determining factor in deciding whether an administrative agency has exceeded its rule-making authority is whether the rules are ‘in harmony’ wit h the general objectives of the legislation involved.” 12 An administrative rule may be “in harmony” with legislative objectives only if it does not impose additional burdens, conditions, or restrictions in excess of or inconsistent with r elevant statutory provisions. 13 At bottom, the law prohibits a n agency from exercising what i s effectively a new power or a power contradictory to its enablin g statute based on the claim that the power is expe dient for administrative purpos es. 14 Instead, an agency’s rules must comport with the agency’s authorizing statu te. Unless an

10 Texas Orthopaedic Ass’n v. T ex. State Bd. of Med. Exam’rs , 254 S.W.3d 714, 719 (Tex. App.—Austin 2008, pet. denied).
11 Texas Bd. of Chiropractic Examiners , 375 S.W.3d at 475.
12 Harlingen Family Dentistry, P.C., v. Tex. HHS Comm’n , 452 S.W.3d 479, 486 (Tex. App.—Austin 2014, pet. filed) ( citing Railroad Comm’n of Tex. v. Lone Star Gas Co ., 844 S.W.2d 679, 685 (Tex. 1992); Gulf Coast Coal. of Cities , 161 S.W.3d at 711).
13 Id . ( citing Gulf Coast Coal ., 161 S.W.3d at 712).
14 Id . at 482.11 agency rule is adopted pursuant to specific or implied statutor y authority, it is void. 15
B. The Purposes of Chapter 801 and the “Owner Exemption” Chapter 801 of the Texas Occupations Code provides the TBVME wi th authority to regulate veterinary medicine. 16 Within the bounds of Chapter 801, the TBVME may regulate the licensure and practice of veterinary med icine, adopt rules consistent with its legisla tive grant of authority, and e nforce both the Act and its rules. 17 The TBVME is subject, however, to the restrictions to its aut hority set out in Chapter 801 and in iterations of the law over the more t han 100 years in which a version of the Veterinary Licensing Act has been in for ce. Particularly relevant here are the exceptions to the TBVME’s authority set f orth in Section 801.004(1), the “Owner Exemption.” Section 801.004(1), like th e remainder of Section 801.004, is an express ex emption to the TBVME’s authori ty to regulate an individual’s right to prac tice veterinary medicine. 18

15 Id

. 16 See, e.g ., T EX
. O CC

. C ODE § 801.151. Chapter 801 of the Texas Occupations Code, the Veterinary Licensing Act, will be referenced herein as “the Act .” 17 See id. 18 T EX
. O CC

. C ODE § 801.251 provides: LICENSE REQUIRED FOR PRACTICE OF VETERINARY MEDICINE. Except as provided in Section 801.004 , a person may not practice, or offer or attempt to practice, veterinary medicine unl ess the person holds a license to practice veterinary medicine issued under this chapter. Id . (emphasis added).12 From its inception in 1911, the Act has always included exemptions from regulation for livestock practices and care by owners, among ot her enumerated exemptions. What has evolved in to a panoply of exemptions—circ umstances in which the Act “does not apply”—w as founded in the principle tha t those who were in the business of veterinary medicine, treating or caring for animals “for compensation, either directly or indirectly,” should be regulat ed; others providing such care, should not. 19 “Persons gratuitously treati ng animals” were exempted from the Act. 20 Likewise, the Act exempted pe rsons performing a variety of common livestock practices that otherwise would constitute the practice of veterinary medicine, 21 such as “‘dehorning,’ ‘castra ting,’ and ‘spaying’” cattle—

19 Act of March 16, 1911, § 13 (Chapter 76, General Laws) (“Act of March 16, 1911”).
20 Id

. 21 Section 801.002 of the Act contains the following relevant de finitions pertaining to the practice of veterinary medicine: (5) "Practice of veteri nary medicine" means: (A) the diagnosis, treatment, c orrection, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or oth er physical condition, including the prescripti on or administration of a dr ug, biologic, anesthetic, apparatu s, or other therapeu tic or diagnostic subst ance or technique; (B) the representation of an ability and willingness to perform an act listed in Paragraph (A); (C) the use of a title, a word, or letters to induce the belief that a person is legally authorized and qualified to perfor m an act listed in Paragraph (A); or (D) the receipt of compensati on for performing an act listed in Paragraph (A). * * * (7) "Veterinary medicine" incl udes veterinary surgery, reproduc tion and obstetrics, dentistry, ophthalmology, dermatology, cardiology, and any othe r discipline or specialty of veterinary medicine.13 practices generally undertaken by the owners of livestock, thei r employees, and their neighbors. 22 Over the years, the Owner Exemption has evolved:

 In 1953, the Legislature exempted the “[t]reatment or caring f or animals in any manner personally by the owner thereof, or by an y employee of the owner thereof.” 23

 In 1987, the Legislature added a proviso for circumstances whe re “the ownership or employment ha[ d] been established with the intent of circumventing this Act.” 24

 In 1993, the Legislature added any “designated caretaker” to t he classes of persons eligibl e for the Owner Exemption. 25

 In 1999, the Act was re-codified as Chapter 801 of the Occupat ions Code without any substantive revisions to the Owner Exemption, retaining it in its entirety. 26 The Act’s history underscores i ssues pertinent to the TBVME’s a ppeal. Specifically, the concern of the Act has always been traditiona l clinical veterinarian practice. The TBVME ’s enforcement powers have, th erefore, been in

T EX
. O CC

. C ODE §§ 801.002(5), (7).
22 Act of March 16, 1911, § 13.
23 T EX
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. C IV
. S TAT

. A NN . art. 7465a (1953); see also id ., § 3(2)-(7)(“male castration on domestic animals, or docking or earmarking of domestic animals, ” “dehorning cattle, or the spaying of large animals, or operation in aid of the birth proc ess in large animals,” “drenching and spraying of domestic animals for internal or external paras ites, or vaccinati on for black-leg, shipping fever, or sore mouth,” “[r]ecommendation by a retail d istributor of a medicine, remedy or insecticide which is adequately labeled and has been duly re gistered with the Texas State Department of Health as required by the Texas Livestock Remedy Act when the retail distributor is advised by the customer of the type of ailment which he wish es to treat,” “[t]reatment and caring for poultry and rabbits,” and “[b]randing animals in any manner”).
24 T EX
. R EV
. C IV
. S TAT

. A NN . art. 7465a § 3 (1987).
25 T EX
. R EV
. C IV
. S TAT

. A NN . art. 8890 § 3 (1993).
26 See T EX
. O CC

. C ODE § 801.004, enacted in H.B. 3155, 76th Leg. R.S. (1999).14 the nature of consumer protection. Indeed, the TBVME has recog nized as much in reporting to the Sunset Advisory Committee in its last Sunset R eview: “The protection of Texas consumers who are animal owners is the prim ary focus of the [TBVME’s] enforcement program.” 27 On its website, the TBVME reiterates that its mission “is to establish and enforce policies to ensure the best possible quality of veterinary and equine dental provider services for the people of Texas .” 28 The Legislature has not empowered TBVME to interfere with the right of animal owners, their employees, or their designees to treat or care fo r their animals in any manner, unless they undertake th eir capacity with the intent to violate the Act.
C. Each of the Challenged Rules Is Invalid Section 801.151 of the Act permits the TBVME to adopt rules “as necessary to administer [the Act],” including rules to “protect the publi c.” 29 These rules must

27 Self-Evaluation Report Submitted to the Sunset Advisory Commi ssion, Texas State Board of Veterinary Medical Examiners at 22 (August 18, 2003) ( “Self-Evaluation Report); see also id . at 28 (“Through regulation, the public is assured that those who are entrusted with the care of their animals follow guidelines that protect the patien t and protect the health and welfare of the public. Regulation also provides consumers with an aven ue that allows their concerns to be addressed. The Board, through its Enforcement Division, pro vides these services to the public.”).
28 Texas State Board of Veterinary Medical Examiners, Home Page (emphasis added), http://www.veterinary.texas.gov/agency.php (emphasis added)(last vi sited September 3, 2015); see also id . (TBVME’s home page also recites that “[t]he purpose of the Bo ard is to protect the public by ensuring that persons entering the profession meet minimum academic and examination requirements,” and “[t]he Board also establishes an d enforces policies to ensure the best possible quality of vete rinary services for the citizens of Texas ”) (emphasis added).
29 T EX
. O CC

. C ODE § 801.151. See also §§ 801.151(f) (restrictions on rules unreasonably restricting owner or caretaker’s selection of equine dental pro vider); 801.153 (prohibiting rules restricting truthful advertising or competitive bidding).15 be evaluated, however, in the cont ext of the statute on which t hey are based and with which they may not conflict. 30 The TBVME simply may not regulate where the Legislature has unambiguously stated that Chapter 801 “does not apply.” 31 Specifically, the Act provide s in pertinent part that: This chapter does not apply to: (1) the treatment or care of an animal in any manner by the own er of the animal, an employee of the owner , or a designated caretaker of the animal, unless the ownership, employmen t, or designation is established with the intent to violate this chapter . . . . 32 The Owner Exemption to the appli cability of the Act—the entire Act—is clear, and the Legislature has limited it in only one way: the ownership, employment, or designation may not be undertaken “with the intent to violate [ the Act].” 33 Accordingly, where certain conditions exist—in this instance, w here the activities in issue are the treatment or care of an animal by its owner, a n employee of the owner, or the owner’s designee—th e Legislature has denied the T BVME authority to regulate. Whether the agency thinks that adopting new rules or interpreting old

30 Harlingen Family Dentistry, P.C., 452 S.W.3d at 481-82.
31 T EX
. O CC

. C ODE § 801.004. Dr. Jefferson does not contend that she is exempt, as a TBVME licensee, from regulations pertaining to her activities a s a licensee, such as registration and fee-payment requirements; c ontinuing education obligations; or the practice of veterinary medicine, should it occur, for a nimals that are not owned by th e organizations for which she is an officer, employee, or designated caretaker. However, Occupatio ns Code Chapter 801 and the TBVME’s rules “do not apply” to her activities appurtenant to t he treatment or care of animals her organizations own.
32 T EX
. O CC

. C ODE § 801.004(1).
33 Id

.16 ones in ways that invade the Owner Exemption is a good idea or expedient, it may not do so. 34 And, because the TBVME’s rulemaking authority arises solely b y means of Section 801.151, which “ does not apply” where these co nditions exist, the TBVME’s rules do not a pply to these activities. The agency attempts to justify its contradiction of the Act by contending that without the challenged rules, it cannot “protect the public fro m the unsafe practice of veterinary medicine.” 35 But as this court recently wrote in Teladoc, Inc. v.
Texas Medical Board : [W]here, as here, an agency’s le gal or policy pronouncements se ek to control the conduct of a free pe ople through the assertion or t hreatened assertion of State power, agency “impotence” is hardly the rele vant concern under our Constitution and laws. Rather, it is the risk that a gencies—whose legitimate authority and very existence must derive from law an d not merely perceived “expediency”—will stray from their legal limitations (perhaps with the best of individual intentions, but exceeding them neve rtheless) through what federal courts hav e aptly termed a “tyranny of sma ll decisions” that substantively assert Execu tive or Legislative power over t he citizenry through forms calculated to avoi d the meaningful checks and bal ances the Framers intended the Judiciary to provide. 36 The tyranny the TBVME visits upon animal owners, their employee s, and their designees, particularly in the li fe-saving, animal shelter cont ext, arises from rules contradicting the relevant statu tory language. The TBVME trans parently imposes burdens, conditions, or restrictions upon the Owner Exemption t hat are

34 Harlingen Family Dentistry, P.C. , 452 S.W.3d at 482.
35 Pet. Br. at 6. 36 453 S.W.3d at 622 ( citing In re State Bd. for Educator Certification , 452 S.W.3d 802,17 inconsistent with the unambiguous terms of the Act. Further, t he TBVME’s enforcement of Chapter 801 and its rules where the Owner Exempt ion is applicable is an illegitimate exercise of a power contradictory to its ena bling Act, interfering with or impairing the legal righ ts of owners, employees of owne rs, or the owners’ designees to be free of regula tion. The challenged rules contr avene specific statutory language; run counter to the general objectives of th e statute; or impose additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provision. T hese rules contravene the legis lative language and intent and are invalid. 37 1. Board Rule § 573.72, Employment by Nonprofit or Municipal Corporations, Is Invalid. Board Rule § 573.72 38 was originally adopted in 1995 in response to an opinion of the Attorney General determining that statutory corp orate practice of

808-09 (Tex. 2014)).
37 Harlingen Family Dentistry, P.C. , 452 S.W.3d at 481-82.
38 Board Rule § 573.72 states: §573.72 EMPLOYMENT BY NONPROFIT OR MUNICIPAL CORPORATIONS (a) A nonprofit or municipal corporation may employ or contract with a veterinarian to provide veterinary services in connection with sheltering, ster ilization, vaccination, or other medical care and treatment of animals. (b) Employment by or contractua l service to a nonprofit or muni cipal corporation does not exempt the veterinarian from any of the provisions of the V eterinary Licensing Act or the Board's rules. (c) Veterinarians employed by, or contracted to, nonprofit or m unicipal corporations shall be liable for any violations of the Act or rules occurring as a result of the practice of veterinary medicine or any veteri nary services provided by the nonprofit or municipal18 veterinary medicine prohibitions do not apply to a veterinarian ’s employment by a non-profit or municipal corporation. 39 The plain language of subsection (a) of the Board Rule § 573.72 resolves th e conflict between TBMVE policy and the Act that the Attorney General identified. Nothing more is needed to cor rect the TBVME’s previous interference with the operations of nonprofit or munic ipal corporations in employing veterinarians but to recognize, as Board Rule § 573.7 2(a) does, that there is no risk of the corporat e practice of veterinary medici ne in the context of a nonprofit or municipal corporation. Petitioner claims that Board Rule § 573.72 is merely a mechanis m for “prevent[ing] a licensed vet from hiding behind the veil of a n on-profit or municipal corporation in establishing one of the [Owner E]xempt ion criteria . . ..” 40 The Board further claims that “t he rule would obviously not app ly” to veterinarians who fall under the Owner Exemption, as long as they “d[o] not i ntend to

corporation, including those occu rring due to the acts or omiss ions of non-licensed employees of, or volunteers for, t he nonprofit or municipal cor poration. 22 T EX
. A DMIN
. C ODE § 573.72. Board Rule § 573.72 was numbered Board Rule § 573.7 1 at the time of its original adoption. As it was or iginally adopted (th en Board Rule § 573.71) , and as it is now expressed, Rule § 573.72(c) “stipulates that [doctors of ve terinary medicine] employed by [nonprofit or municipal] corporations are liable for violations of the Act or [TBVME] rules, as well as acts or omissions of non-licensed employees and volunte ers.” 20 T EX
. R EG . 6580, 6581 (August 25, 1995); see also 20 T EX
. R EG . 8908 (October 27, 1995) (adopting t he original rule).
39 See Tex. Att’y Gen. LO-95-003 (1995); see also 20 T EX
. R EG . 6581, 6581-82 (August 25, 1995)(Proposed Rules); 20 T EX
. R EG . 8908 (October 27, 1995) (Order Adopting Rules); 31 T EX
. R EG . 5538 (July 14, 2006)(Proposed Rules); 31 T EX
. R EG . 9033 (November 3, 2006) (Order Adopting Rules)(nonsubstantive r evisions from the 1995 version)

. 40 Pet. Br. at 8.19 circumvent the provisions of the Act.” 41 The TBVME’s post-hoc justifications do not pass muster. Instead, the remaining subsections of the rul e unambiguously and unlawfully reject and restrict t he terms of the Owner Exemption

. Specifically, Board Rule § 573.72(b) and (c) each make persons to whom the Act “does not apply” subject to it—under the rule, they are “not exempt” and “shall be liable.” Still worse, Board Rule § 573.72(c) extends liability to veterinarians employed by nonprof it or municipal corporations f or the actions of others who are themselves exempt from the Act as employees or d esignees. Board Rule § 573.72, therefore, contradi cts the express terms of the Act and extends TBVME authority where the Legisla ture has determined that peopl e should be free from agency regulation. 42 Each of these rules exceeds the TBVME’s authority under the Act. Contrary to the speculative claims of the TBVME, there is no ri sk in upholding the trial court’s invalidation of the rule. First, t he TBVME’s concern that a veterinarian would use employment by a nonprofit or muni cipal corporation as a “veil” fails to recognize that the Legislature has already dealt with this issue: the Owner Exemption is not applicable where the ownership, empl oyment, or designation has been undertaken w ith intent to violate the Act. The rule’s blanket

41 Pet. Br. at 8.
42 See, e.g., Harlingen Family Dentistry, P.C. , 452 S.W.3d at 481-82.20 disqualification of veterinaria ns employed in the nonprofit or municipal corporate context from eligibility under the Owner Exemption simply contr adicts the intent of the Legislature, which put no other limitations on the Owner Exemption; and further, it imposes burdens, conditions, or restrictions that t he Legislature did not expressly authorize or necessarily imply. 43 In all instances, the statutory right of a veterinarian or any ot her person to treat or care for an animal she owns, her employer owns, or for whom she has been designated a caretaker, is negated if the capacity of ownership, employment, or designation is undertaken with the purpose of violating the Act. Second, the TBVME’s contention th at the Court should ignore Boa rd Rule § 573.72’s restrictions because t hey “obviously” do not apply t o a veterinarian in the Owner Exemption context is nonsense—and contradicts the ter ms of the rule itself. Nothing in the rule suggests, much less states, that t he statutory Owner Exemption trumps the rule’s requirements, whether in the contex t of a nonprofit or municipal corporation or otherwi se. To the contrary, the expre ss terms of the rule state unambiguously that the Act and the Board’s rules apply to veterinarians employed by a nonprofit or municipal corporation for all their activities— necessarily including the treat ment or care of the corporation’ s animals. 44

43 Id. at 485-86.
44 See Texas Bd. of Chiropractic Examiners , 375 S.W.3d at 474-75.21 Finally, while the Board eviden tly concedes now that Dr. Jeffer son is not affected by the restrictions of Board Rule § 573.72(b) or (c) i n the context of her work for SAPA or other nonprofit or municipal corporations, 45 the actions of the TBMVE in conducting its prosecution are telling. In the amende d notice of hearing that precipitated this case, the TBVME used Board Rule § 573.72 as an express ground for enforcement against Dr. Jefferson or her non profit work with SAPA, including the alleged acts of employees or volunteers of SAPA. 46 In citing Board Rule § 573.72 in its allega tions against Dr. Jefferson, t he TBVME used its rule as a “sword” to create jurisdiction, rather than as a “shi eld” to protect its statutory authority. The TBVME may not, however, confer jurisd iction upon itself where the Legislature has expressly denied it. In summary, Board Rule § 573.72 interferes with the Legislature ’s statement of the Owner Exemption in two ways. First, subsection (b) dire ctly contradicts Section 801.004(1) whenever a vete rinarian is employed by or de signated to care for the animals of a nonprofit or municipal corporation. Rathe r than being exempt from the Act for the treatment or care of animals the nonprofit or municipal corporation owns, under Board Ru le § 573.72 employees and desig nees who are

45 “The rule is not intended to a pply to veterinarians who fall under the Owner . . . Exception . . ..” Pet. Br. at 8.
46 See, e.g ., 1.CR.256-57 (Amended Notice of Hearing, SOAH Docket No. 578- 14-1546, at 7-8)(“Board Rule 573.72 makes it clear that veterinarians who w ork for a non-profit or municipal corporation are subjec t to the Act and the Board Rule s and are also responsible for the22 veterinarians are “not exempt” from the Act or Board Rules but “shall be liable” for such violations. Id . Second, subsection (c) places a burden upon the Owner Exemption by making an exempt veterinarian liable for violation s of the Act or Board rules resulting from the otherwise exempt activities of a nyone, including an employee or volunteer of a nonprofit or municipal corporation, in treating or caring for an animal the nonprofit or municipal corporation owns. Boa rd Rule § 573.72 is invalid. 47 2. Board Rule § 573.80(2), Defining the Statutory Term “Designated Caretaker,” Is Invalid. Nowhere in the Act is the term “ designated caretaker” used, exc ept in the Legislature’s statement of the Owner Exemption. The express te rms of the Owner Exemption permit animal owners and those they hire or designate to treat or care for those animals without regard to the restrictions on the pra ctice of veterinary medicine that the Act ordinarily imposes on others. The Legisl ative grant of this freedom is subject only to the condition that the ownership, em ployment, or designation not be undertaken with intent to violate the Act. 48

actions of any non-veterinarians w ho practice veterinary medici ne in those cor porations.”).
47 See City of Corpus Christi v. Public Util. Comm’n , 51 S.W.3d 231, 236 (Tex. 2001); see also Physicians Assistants Bus. Alliance of Texas, LLC , 2015 Tex. App. LEXIS 1492, *6-*7.
48 T EX
. O CC

. C ODE § 801.004(1).23 In attempting to justify its proviso-filled rule defining the t erms for which there is no specialized or technical meaning, 49 the Board contends t hat, in contrast to the express terms of the Owner Exemption itself, “[t]he inte nt of [Board Rule § 573.80(2)] is to ensure that non-veterinarians practicing vet erinary medicine without a license cannot be exempt from the Act.” 50 The Board justifies this position by asserting that “[i]f t he rule is invalidated, then anyone caught practicing veterinary medicine without a license could evade responsibilit y by simply claiming that he or she is a ‘designated caretaker.’” 51 Patently hostile to the

49 § 573.80(2) DEFINITIONS (2) Designated caretaker--a person to whom the owner of an anim al has given specific authority to care for the animal and who has not been designate d, by using the pretext of being a designated caretaker, to circumvent the Veterinary Lice nsing Act (Chapter 801, Texas Occupations Code) by engaging in any aspect of the practi ce of veterinary medicine (including alternate therapies). A designated caretak er who treats an animal for a condition that the animal was known or suspected of having pr ior to the person being named a designated caretaker, is presumed to be attempting to c ircumvent the Veterinary Licensing Act unless the designat ed caretaker is following the instruction of a veterinarian and is under the app ropriate level of supervision per board rules. In this situation, the designated caretak er may present evidence to reb ut the presumption. 22 T EX
. A DMIN
. C ODE § 573.72. 50 Pet. Br. at 9. 51 Id . Ironically, in other contexts, the TBVME has recognized that the Owner Exemption permits the practice of veterinary medicine without a license. Specifically, Board Rule § 571.61(b)(1) restricts veterinari ans “whose licenses are on ina ctive status” from engaging “in the practice of veterinary medicine o r otherwise provid[ing] treatm ent” to animals in the State

“ [e]xcept as provided in § 801.004, Texas Occupations Code .” Id . (emphasis added). See also 20 T EX
. R EG . 6580, 6580-81 (August 25, 1995)(Proposed Rules); 20 T EX
. R EG . 8905, 8905-06 (October 27, 1995) (Order Adopting Rules) (explaining adoption of both Board Rule §§ 573.61 and 573.71 (now 573.72), under the pre-Occupations Code codific ation of the Owner Exemption, § 3(a)(1) of the Act). Board Rule § 571.61, therefore, express ly acknowledges the Owner Exemption trumps the general prohibition of an inactively licen sed veterinarian “engag[ing] in the practice of veterinary medici ne or otherwise provid[ing] tr eatment to any animal in the State of Texas.” In contrast to Board Rule § 573.72, Board Rule § 57 1.61 expressly recognizes the24 statutory Owner Exemption, the TBVME simply exalts its own sche me in place of the judgment of the Legislature. Contrary to the TBVME’s ratio nalization, the definition in Board Rule § 573.80(2) contravenes the plain lang uage of the Owner Exemption, fails to harmonize with the objectives of the Act, a nd adds burdens, conditions, and restrictions inc onsistent with the Owner Exempt ion. The rule is invalid. 52 First, the plain terms of Board Rule § 573.80(2) are unlimited. In contrast to the Owner Exemption, the rule expressly presumes “persons” are circumventing the Act by being designated a ca retaker if they “engag[e] in an y aspect of the practice of veterinary medicine.” Id . As such, the rule applies to veterinarians and lay persons alike, all persons who might at the insistence of a n animal’s owner provide treatment or care to the animals, including actions tha t otherwise would constitute the practice of veter inary medicine. By acknowledgi ng in its brief that Board Rule § 573.80(2) deprives any owner, her employee, or her designee the right to treat or care for an animal free of TBVME regulation, the TBVME effectively admits that its intent in adopting the rule is to a brogate the Legislature’s judgment that an owner’s rights in property are reserved to her . In contrast to the position of the TBMVE, it is the L egislature, not the agency, t hat has the power to

Owner Exemption for inactive veterinarian-owners, employees, an d designated caretakers.
52 Harlingen Family Dentistry, P.C. , 452 S.W.3d at 481-82.25 decide the scope of its authorizing statutes. In this case, th e Legislature has decided that owners, employees, and designees are categorically exempt from the Act, provided only that they are not undertaking their capacity with the intent to violate the Act. Th e TBVME may not overrule the Legislature. Second, beyond the TBVME’s clear intent to promote its regulato ry authority over the Legislature’s century of preserving animal o wners’ property rights, there are several reasons why Board Rule § 573.80(2) is invalid. Specifically, the terms of Board Rule § 573.80(2) conflict with the Owner Exemption. The Owner Exemption is an express exemption to the Act’s general prohibition on the unlicensed practice of veterinary medicine. The Owner Exemption expressly permits owne rs, employees of owners, and de signated caretakers who do not undertake that capacity with the intent t o violate the Act to treat or care for their animals in any manner. In contrast, th e TBVME definition negates the exemption where the designated caretaker “engag[es] in any aspect of the practice of veterinary medicine (including alternate therap ies),” regardless of capacity, circumstances, or intent. As this Court has held on numerous occasions, “A rule is void where it conflicts with the plain language of a statute, and a rule may not narrow the scope of a le gislatively mandated exception. ” 53 The TBVME

53 See Physicians Assistants Bus. , 2015 Tex. App. LEXIS 1492, *6-*7.26 definition improperly narrows the Owner Exemption for designate d caretakers and is, therefore, invalid. In addition, the TBVME definition of “designated caretaker” imp roperly burdens the right of an owner, or a caretaker the owner designa tes, to the express statutory benefits of the Owner Exemption. Board Rule § 573.80 (2) establishes a presumption that a designated caretaker of an animal intends to violate the Act if she “treats an animal for a condition that the animal was known or suspected of having prior to the person being named a designated caretaker . . .,” unless she obtains veterinary supervision. Id . This rules-based limitation on the Owner Exemption for ill animals constitutes a substantive limitation on the scope of the exemption that the Legislature did not authorize and is contrar y to expressed legislative intent. Moreover, i n an enforcement action, Board Rule § 573.80(2) shifts the burden of proving the designated caretaker’s intent in undertaking her capacity from the prosecuting agen cy to the owner or the design ated caretaker herself, again placing a burden upon the Legislature’s express exception. Nothing in the Act authorizes either the imposition of the TBVME’s cond ition or the shift in the burden of proof. 54 Third, despite the inescapable a nd unlawful consequences of app lying the TBVME’s rule defining “designate d caretaker,” the agency simply abandons the

54 See id. at *6-*7.27 common meaning of the term, complaining that to use the words o f the Legislature would lead to “absurd” results. 55 When it actually addresses the words used in the Owner Exemption, however, the agency relies upon a simplistic, unsourced, and out-of-context deconstruction of t he terms “designated” and “ca re” to excuse its definition. 56 The agency’s deconstruction, how ever, fails to acknowledge that the term has a unique context in the Act. Again, the statutory term “de signated caretaker” is used solely in the Owner Exemption and derives its essence by r eference to the property rights of an animal’s own er. As the TBVME inadvertent ly acknowledges, an owner of personal property, i ncluding an animal, is entitled to appoint any person she desires as a “careta ker” of her property. But by re fusing to recognize the designee’s relationship to the owner, the TBVME’s analysis abandons the substance of the term. A “desi gnated” “caretaker” is, indeed, a person “officially cho[sen] . . . to do or be someth ing,” with that “something” in this context being to “give[] physical . . . care and support” to the animal or anima ls in issue. 57 But in extension of the common definition of “care,” the common dictio nary meaning of “caretaker” also carries an element of substitute authority. S pecifically, the

55 Pet. Br. at 9-10. 56 Pet. Br. at 10.
57 See http://www.merriam-webster.c om/dictionary/designate ; http://www.merriamwebster.com/dictionary/caretaker (last visited September 1, 2015).28 common definition of designated caretaker implies more than the casual handing off of an animal for the performance of services (even veterina ry services), but requires something akin to agency or dominion—being or acting o n behalf of the owner herself. 58 Finally, while an owner has th e right to designate anyone, incl uding a veterinarian, to be a “designated caretaker” for her animals un der the Owner Exemption, the TBVME’s claim t hat such a construction “would vi tiate the entire Act and would create an absurd result which [sic] the legislatu re never intended” is

a non sequitur . It simply does not follow that use of the plain meaning of t he undefined term “designated caretak er” in the context of the cle ar terms of the Owner Exemption will lead to regulatory chaos. To the contrary , where, as here, the statute is unambiguous, ascertaining the “ordinary or commo n meaning” or “plain meaning” is the first resource for determining the draft ers’ intent, and should guide this Court. The TBMVE definition conflicts with b oth the express terms of the Owner Exemption a nd the overall purpo ses of the Ac t and is invalid. 59

58 E.g ., “one that takes care of the house or land of an owner who ma y be absent” or “one temporarily fulfilling the function of an office.” http://www.merriamwebster.com/dictionary/caretaker

. 59 See T EX
. G OV ’ T C ODE § 311.011; see also Texas Bd. of Chiropractic Examiners , 375 S.W.3d at 474-75. In reality, it is the application of the Board Rule § 573.80(2) definition of “designated caretaker” that would lead to an “absurd result” that “vitiates the entire Act.” Pet. Br. at 10. In real life, the agency’s definition provides that the daughter o f a dairy farmer whose cattle need medicine each day is “presumed to be attempting to circumvent t he [Act],” unless the farmer hires a vet to supervise her daughter according to Board rules. Just for doing her chores, the29 This Board Rule is, therefore, inconsistent with the conception that an owner and his or her employees or designees are entitled to perform a cts of veterinary medicine free from the restrictions of the Act or the Board Rul es. Because Board Rule § 573.80(2), the Board’s c ontrived definition of “designat ed caretaker,” contravenes the specific statutory language of the Owner Exempt ion, runs counter to the general objectives of the statute, and imposes burdens, conditions, or restrictions in excess of or in consistent with the Owner Exempt ion, it is invalid.
P RAYER For these reasons, Dr. Jefferson respectfully requests that thi s Court affirm that part of the trial court’s judgment invalidating the TBVME’ s rules.

daughter is subjected to TBVME prosecution and must prove that she did not take the job in order to circumvent the Act.30 Respectfully submitted,

/ s / David F. Brown Ryan Clinton State Bar No. 24027934 rdclinton@dgclaw.com D AVIS , G ERALD & C REMER , P.C. 111 Congress Ave., Suite 2800 Austin, Texas 78701 Ph: (512) 537-9938 Fax: (432) 687-1735 David F. Brown State Bar No. 03108700 dbrown@ebblaw.com David P. Blanke State Bar No. 02453600 dblanke@ebblaw.com E WELL , B ROWN & B LANKE , LLP 111 Congress Ave., 28 th Floor Austin, TX 78701 Ph: (512) 457-023331 C ERTIFICATE OF S ERVICE I hereby certify that a true and correct copy of the foregoing was sent this 8th day of September, 2015 as follows:

V IA EFSP & EM AIL Mr. Andrew Lutostanski andrew.lutostanski@tex asattorneygeneral.gov Mr. Ted A. Ross tex.ross@texasatto rneygeneral.gov Office of the Attorney General of Texas Administrative Law Division P. O. Box 12548 Austin, TX 78711
/s/ David F. Brown David F. Brown32 C ERTIFICATE OF C OMPLIANCE Relying on the word count functi on in the word processing softw are used to produce this document (Microsoft Word), I certify that the numb er of words in this brief (excluding the identity of parties and counsel, statement regarding oral argument, table of contents, inde x of authorities, statement of the case, statement of issues presented, signature, proof of service, certification , certificate of compliance, and appendix) is 5,222 and that the text of the doc ument is in 14-pt. font. The text of all footnotes is 12-pt.font.

/s/ David F. Brown David F. Brown

# T AB 

# A22 TAC § 573.72 This document reflects all regulations in effect as of August 31, 2015
Texas Administrative Code > TITLE 22. EXAMINING BOARDS > PART 24. TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS > CHAPTER 573. RULES OF PROFESSIONAL CONDUCT > SUBCHAPTER G. OTHER PROVISIONS § 573.72. Employment by Nonprofit or Municipal Corporations (a) A nonprofit or municipal corporation may employ or contract with a veterinarian to provide veterinary services in connection with sheltering, sterilization, vaccination, or other medical care and treatment of animals. (b) Employment by or contractual service to a nonprofit or municipal corporation does not exempt the veterinarian from any of the provisions of the Veterinary Licensing Act or the Board’s rules. (c) Veterinarians employed by, or contracted to, nonprofit or municipal corporations shall be liable for any violations of the Act or rules occurring as a result of the practice of veterinary medicine or any veterinary services provided by the nonprofit or municipal corporation, including those occurring due to the acts or omissions of non-licensed employees of, or volunteers for, the nonprofit or municipal corporation. History
SOURCE: The provisions of this § 573.72 adopted to be effective June 14, 2012, 37 TexReg 4229

TEXAS ADMINISTRATIVE CODE

# T AB 

# B22 TAC § 573.80 This document reflects all regulations in effect as of August 31, 2015
Texas Administrative Code > TITLE 22. EXAMINING BOARDS > PART 24. TEXAS BOARD OF VETERINARY MEDICAL EXAMINERS > CHAPTER 573. RULES OF PROFESSIONAL CONDUCT > SUBCHAPTER G. OTHER PROVISIONS § 573.80. Definitions The following words and terms, when used in the Veterinary Licensing Act (Chapter 801, Texas Occupations Code) or the Rules of the Board (Texas Administrative Code, Title 22, Part 24, Chapters 571, 573, 575, and 577) shall have the following meanings, unless the context clearly indicates otherwise: (1) Accepted livestock management practices--those practices involving animals raised or produced primarily for food, fiber, or other products for human consumption, and may include the following: (A) branding, tattooing, ear tags or identifying marks of any kind; (B) tail docking, except cosmetic tail docking that is performed for appearance purposes only; (C) earmarking; (D) routine dehorning, except cosmetic dehorning that reshapes or alters the poll area for appearance purposes; (E) castration; (F) non-surgical assistance with birthing; (G) implantation with approved implant products; (H) administration of a biologic, except where restricted by law to administration by a veterinarian, and not including deworming by use of stomach tubing; (I) artificial insemination; (J) shoeing and trimming hooves; and (K) application or administration of parasiticides, except where restricted by law. (2) Designated caretaker--a person to whom the owner of an animal has given specific authority to care for the animal and who has not been designated, by using the pretext of being a designated caretaker, to circumvent the Veterinary Licensing Act (Chapter 801, Texas Occupations Code) by engaging in any aspect of the practice of veterinary medicine (including alternate therapies). A designated caretaker who treats an animal for a condition that the animal was known or suspected of having prior to the person being named a designated caretaker, is presumed to be attempting to circumvent the Veterinary Licensing Act unless the designated caretaker is following the instruction of a veterinarian and is under the appropriate level of supervision per board rules. In this situation, the designated caretaker may present evidence to rebut the presumption.(3) Food production animals--any mammalians, poultry, fowl, fish or other animals that are

raised primarily for human food consumption. (4) Biologic--any serum, vaccine, antitoxin, or antigen used in the prevention or treatment of disease. (5) Pregnancy testing--the diagnosis of the physical condition of pregnancy by any method other than the gross visual observation of the animal. (6) Invasive dentistry or invasive dental procedures--exposing of the dental pulp, or performing extractions. (7) Consultation--the act of rendering professional advice (diagnosis and prognosis) about a specific veterinary medical case, but does not include treatment or surgery. (8) General Supervision--a veterinarian required to generally supervise a non-veterinarian must be readily available to communicate with the person under supervision. (9) Direct Supervision--a veterinarian required to directly supervise a non-veterinarian must be physically present on the same premises as the person under supervision. (10) Immediate Supervision--a veterinarian required to immedi ately supervise a non-veterinarian must be within audible and visual range of both the animal patient and the person under supervision. (11) Official Health Documents--any certificate attesting to the health, vaccination status, physical condition and/or soundness of an animal. (12) Specialist--a veterinarian that is a Board Certified Diplomate of a specialty organization recognized by the American Veterinary Medical Association. (13) Non-veterinarian employee--an individual paid directly by a veterinarian for work involving the practice of veterinary medicine, as defined in the Veterinary Licensing Act, Texas Occupations Code, § 801.002(5) , regardless of the defined status of the employment relationship between the individual and the veterinarian under Internal Revenue Service regulations. (14) Herd--a group of animals of the same species, managed as a group and confined to a specific geographic location. A herd may not include dogs, cats, any animal in individual training, or any animal that competes as an individual. History
SOURCE: The provisions of this § 573.80 adopted to be effective June 14, 2012, 37 TexReg 4229 ; amended to be effective December 25, 2012, 37 TexReg 9937 ; amended to be effective August 29, 2013, 38 TexReg 5490 22 TAC § 573.80

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Research References & Practice Aids
CROSS-REFERENCES: This Section cited in 22 TAC § 573.19 , (relating to Dentistry).

TEXAS ADMINISTRATIVE CODE 22 TAC § 573.80

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