No. 03-14-00396-CV



# In the Third Court of Appeals Austin, Texas

T EXAS B OARD OF C HIROPRACTIC E XAMINERS AND Y VETTE Y

ARBROUGH , E XECUTIVE D IRECTOR ,

Appellants ,

v. T EXAS M EDICAL A SSOCIATION ,

Appellee.
On Appeal from the 353rd Judicial District, Travis County, Texas No. D-1-GN-11-000326

M OTION FOR P ANEL R EHEARING AND / OR E N B ANC R EHEARING

K EN P AXTON Attorney General of Texas
C HARLES E. R OY First Assistant Attorney General J AMES E. D AVIS Deputy Attorney General for Civil Litigation J ONATHAN F. M ITCHELL Solicitor General A PRIL L. F ARRIS Assistant Solicitor General State Bar No. 24069702
O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2923 Fax: (512) 474-2697 april.farris@texasattorneygeneral.gov
C OUNSEL FOR A PPELLANTS ACCEPTED 03-14-00396-CV 3671274 THIRD COURT OF APPEALS

AUSTIN, TEXAS 1/6/2015 4:26:35 PM JEFFREY D. KYLE

CLERKI NDEX OF A UTHORITIES

Cases Browning v. Prostok , 165 S.W.3d 336 (Tex. 2005) ........................

................................................... ........ 3, 9 Heckman v. Williamson County , 369 S.W.3d 137 (Tex. 2012) ........................

................................................... ............ 5 Nat’l Am. Ins. Co. v. Texas Prop. & Cas. Ins. Guar. Ass’n for Paula Ins. Co ., No. 03-09-00680-CV, 2013 WL 4817637 (Tex. App.—Aus tin Aug. 28, 2013, no pet.) ................................

................................................... ...................... 9 Tex. Bd. of Chiropractic Exam’rs v. Texas Med. Ass’ n , 375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied)

................................ passim Tex. Gen. Indem. Co. v. Tex. Workers’ Comp. Comm’n , 36 S.W.3d 635 (Tex. App.—Austin 2000, no pet.) .... ......................................... 4, 6 Thomas v. Long

, 207 S.W.3d 334 (Tex. 2006) ........................

................................................... ............ 5
Statutes
22 T EX
. A DMIN
. C ODE § 71.17 ..........................................

................................................... 6
22 T EX
. A DMIN
. C ODE § 75.17 .......................................... ............................................... 2, 7
22 T EX
. A DMIN
. C ODE § 75.17(b)(5) .................................... ................................................ 7 22 T EX
. A DMIN
. C ODE § 75.17(b)(9) .................................... ............................................... 7 22 T EX
. A DMIN
. C ODE § 75.17(c)(3)(C) .................................. ............................................. 7 22 T EX
. A DMIN
. C ODE § 75.17(d) ....................................... ......................................... 7, 8, 9
22 T EX
. A DMIN
. C ODE § 75.17(d)(1) ....................................

........................................ passim 22 T EX
. A DMIN
. C ODE § 75.17(d)(1)(A) .................................. ........................................ 8, 9
22 T EX
. A DMIN
. C ODE § 75.17(d)(1)(B) .................................. ............................................ 8ii

T EX
. G OV ’

T C ODE § 2001.038 .......................................

................................................... ... 3
T EX
. O CC
. C ODE § 201.002 ........................................

................................................... ........ 2 T EX
. O CC
. C ODE § 201.002(b)(1) ..................................

................................................... .... 9No. 03-14-00396-CV In the Third Court of Appeals Austin, Texas

T EXAS B OARD OF C HIROPRACTIC E XAMINERS AND Y VETTE Y

ARBROUGH , E XECUTIVE D IRECTOR ,

Appellants ,

v. T EXAS M EDICAL A SSOCIATION ,

Appellee.
On Appeal from the 353rd Judicial District, Travis County, Texas No. D-1-GN-11-000326

M OTION FOR P ANEL R EHEARING AND / OR E N B ANC R EHEARING
The Court’s memorandum opinion—issued mere hours af ter this complex case
was submitted for decision without the benefit of t he requested oral argument—suffers from three fundamental errors that require rehearin g: (1) the opinion misstates the appellate issues at the outset, and so resolves app ellate issues that the Texas Board of Chiropractic Examiners and its Executive Director ( TBCE) did not assert; (2) the opinion resolved the subject-matter jurisdiction in quiry using a method that the Texas Supreme Court prohibits; (3) the opinion misstates which administrative rule is at issue with respect to a key component of TBCE’s jurisdict ional challenge, and consequently
reaches an erroneous conclusion.2

Appellants, therefore, respectfully request panel r ehearing and an opportunity to present oral argument on TBCE’s issues, which are o f great consequence to the practice of chiropractic in Texas. A RGUMENT Rehearing should be granted for three reasons. Firs t, the Court’s opinion errs from the outset by purporting to address and resolv e a challenge to the trial court’s jurisdiction over the entire lawsuit . Slip Op. at *1 (misstating TBCE’s position, at th e outset of the opinion, as “assert[ing] . . . that t he district court lacked subject-matter jurisdiction over the TMA’s suit because it is an impermissible collateral attack” (emphasis added)). But TBCE has never challenged th e trial court’s jurisdiction over Texas Medical Association’s (TMA) entire suit, whic h consists of distinct declaratoryrelief claims seeking invalidation of four differen t provisions of the chiropractic Scope of Practice Rule, 22 Tex. Admin. Code § 75.17. See Slip. Op. at *3 (listing the four provisions of the Scope of Practice Rule challenged in TMA’s suit). The opinion’s premise that TBCE has challenged the district court ’s jurisdiction over “TMA’s suit” cannot be reconciled with TBCE’s stated appellate i ssues, its requested relief, or its thorough briefing in this matter. 1

1 Compare Slip Op. at *1 (misstating TBCE’s position as “asse rt[ing] . .

. that the district court lacked subject-matter jurisdiction over the TMA’s suit because it is an impermissible collateral attack . . .” (emphasis added)) with

TBCE Br. at x (Statement of the Issues) (challengi ng jurisdiction over only “TMA’s request for a declaration that ‘the use of t he term ‘diagnosis’ in the Board’s Scope of Practic e Rule ‘violate[s] Tex. Occ. Code § 201.002’”); id . at 37 (Prayer for Relief) (requesting relief only as to3

Rather, TBCE’s plea to the jurisdiction and this ap peal challenged only the trial court’s subject-matter jurisdiction over one of the se four claims—TMA’s request to invalidate the provision of the Scope of Practice R ule “authorizing chiropractors to ‘diagnose’ diseases,” Slip Op. at *3, which is at § 75.17(d)(1). TBCE Br. 3-9, 25. Specifically, TBCE argues that TMA, in prior litiga tion, filed a declaratory-relief claim attempting to invalidate § 75.17(d)(1) on the very same grounds. TMA lost that challenge, and a final judgment was entered rejecti ng TMA’s attempt to invalidate that provision. 2 Tex. Bd. of Chiropractic Exam’rs v. Texas Med. Ass’ n , 375 S.W.3d 464, 492 (Tex. App.—Austin 2012, pet. denied) ( TMA I)). Consequently, the court has no subjectmatter jurisdiction to hear TMA’s second and succes sive claim for a declaration invalidating § 75.17(d)(1), because that claim is a collateral attack on the prior judgment. TBCE Br. 16-17, 21, 26 (citing Browning v. Prostok , 165 S.W.3d 336, 346 (Tex. 2005) (holding that a collateral attack attempts to “avoi d the binding force of a judgment in a proceeding not instituted for the purpose of correc ting, modifying, or vacating the judgment, but in order to obtain some specific reli ef which the judgment currently stands as a bar against.”)). TMA’s claim is also barred by collateral estoppel, which typically is an affirmative defense, but operates j urisdictionally as to a declaratory-relief

“TMA’s request for declaratory relief on the issue of the use of the term ‘diagnosis’ in the Scope of Practice Rule”); id

. at 4-5, 7-8, 9, 25.

2 TBCE Br. 3-9, 25. Section 2001.038 of the Texas Go vernment Code allows TMA to bring “an action” challenging the validity of a rule provisio n. It does not authorize TMA to bring a second action challenging the same provision on the same grounds because it disagreed with the prior judgment.4

claim that simply relitigates the validity of an ad ministrative rule. TBCE Br. 19, 28-29, 33, 39 (citing

Tex. Gen. Indem. Co. v. Tex. Workers’ Comp. Comm’n , 36 S.W.3d 635, 639 (Tex. App.—Austin 2000, no pet.)). By contrast, TBCE has never disputed that subject-matter jurisdiction exists over the remaining three claims seeking invalidation of three other provisions of the Rule, which the parties have not litigated previously. No r has TBCE ever argued that the case—or TMA’s diagnosis-provision claim—is moot. Ac cordingly, the Court’s holdings
that “this proceeding

is not a collateral attack on the prior judgment,” and “this case is not moot,” are not responsive to the issues on appeal t hat were actually raised and briefed by TBCE. Slip. Op. *8, 6 (emphasis added). These ho ldings display a fundamental misunderstanding of the issues presented and, there fore, warrant rehearing. Second, rehearing is necessary because the opinion resolved the question of subject-matter jurisdiction in a manner that is con trary to settled Texas law: by finding subject-matter jurisdiction over the case as a whol e simply because there is jurisdiction

over some of TMA’s claims. See Slip Op. at *6 (“This case is not moot.”); id. at *5 (“Even if one of the arguments the TMA now advances in sup port of its claim has been decided against it (which we do not decide), that would not deprive the district court of subject matter jurisdiction over a challenge to provisions of the scope-of-practice rule that were not at issue in the previous litigation.”). This reasoning contravenes the Texas Supreme Court’ s holding that subjectmatter jurisdiction must be decided on a claim-by-c laim basis, not as to the case as a5

whole. Thomas v. Long

, 207 S.W.3d 334, 338 (Tex. 2006) (“Long argues [that] if the trial court lacks jurisdiction over some claims but not o thers, it must deny the plea. We disagree. . . . [I]t is proper for a trial court to dismiss claims over which it does not have subject matter jurisdiction but retain claims in th e same case over which it has jurisdiction.”); Heckman v. Williamson County , 369 S.W.3d 137, 152-53 (Tex. 2012) (“First, a plaintiff must demonstrate that the court has jur isdiction over (and the plaintiff has standing to bring) each of his claims; the court mu st dismiss those claims (and only those claims) over which it lacks jurisdiction”). Requests to invalidate different provisions of the Scope of Practice Rule are distinct claims, and each claim prevails, falls, or is waived independently of the others.
See TMA I , 375 S.W.3d at 472-73, 490-94, 497 (analyzing requ ests to invalidate different provisions of the Scope of Practice Rule as distinc t claims). Thus, the trial court’s undisputed jurisdiction over TMA’s requests to inva lidate three other Rule provisions has no bearing

on whether the court has subject-matter jurisdicti on to hear TBCE’s challenge to the provision “authorizing chiropracto rs to ‘diagnose’ diseases.” Slip. Op. at *3. TMA has not argued otherwise, and for good r eason. Texas law is clear that claims for which subject-matter jurisdiction is lacking ca nnot piggyback into court on separate claims for which subject-matter jurisdiction exists

. Thomas , 207 S.W.3d at 338. This erroneous approach yielded an erroneous decis ion. Relying on the trial court’s jurisdiction over the three other claims, t he opinion explicitly reserved judgment on the question that is dispositive of whether juri sdiction exists over TMA’s claim6

requesting the invalidation of § 75.17(d)(1): wheth er TMA has previously litigated and lost the same challenge to this provision of the Sc ope of Practice Rule that authorizes chiropractors to make a “diagnosis.” Slip. Op. at * 5 (“Even if one of the arguments the TMA now advances in support of its claim has been decid ed against it (which we do not decide) , that would not deprive the district court of subject matter ju risdiction over a challenge to provisions of the scope-of-practice rule that were not at issue in the previous litigation.” (emphasis added)). Until this question is answered, the Court cannot resolve whether TMA’s new “diagnosis”-provision claim is a collater al attack on the prior final judgment. Nor can the Court determine whether this Court’s controlling decision in Texas General Indemnity

defeats jurisdiction over TMA’s request to supplan t the prior court’s declaration of § 75.17(d)(1)’s validity wit h a declaration of its invalidity. See Tex.
Gen. Indem. Co ., 36 S.W.3d at 639 (affirming grant of a plea to t he jurisdiction where the parties had already proceeded to judgment in anothe r court on the issue of the rule’s validity, and thus were “barred from relitigating” the issue). Finally, rehearing is necessary to correct another crucial factual error that led to an erroneous legal conclusion. The opinion again mi sstates TBCE’s briefing in reasoning that “[o]n appeal the Board argues that i n TMA I the TMA litigated the issue of whether use of the term ‘diagnosis’ rendered rule 71.17(d) invalid . . . . The trial court’s judgment in TMA I

dealt solely with the validity of certain provisio ns of the scope-ofpractice rule that are not at issue in the present litigation.” Slip. Op. at *6 (emphasis added). But TBCE has never made any argument whatso ever regarding Rule § 71.17,7

entitled “Temporary Faculty License.” It was not at issue in TMA I

. On the contrary, TBCE’s argument has always been that, in the TMA I litigation, TMA litigated the issue of whether the use of the term “diagnosis” rendered 22 Tex. Admin. Code § 75.17(d) and (d)(1) (portions of the Scope of Practice Rule) invalid. See TBCE Br. 6-8, 10-11, 21, 25, 36 (comparing TMA’s “diagnosis” pleadings on § 75.17(d) and (d)(1) in TMA I to TMA’s “diagnosis” provision pleadings in this case)

. Alternatively, assuming that this error was a typo and that the Court intended to refer to § 75.17, the statement that “[t]he trial c ourt’s judgment in TMA I dealt solely with the validity of certain provisions of the [Rul e] that are not at issue in the present litigation” is still incorrect. Slip. Op. at *6. T he opinion acknowledges that TMA here requests a declaration invalidating the Scope of Pr actice Rule provision “authorizing chiropractors to ‘diagnose’ diseases.” 3 Slip. Op. at *3. But there is only one such provision in the Rule that vests chiropractors with the authority to “diagnos[e]”: 22 Tex. Admin. Code § 75.17(d)(1) (under title provision § 75.17(d) (“Analysis, Diagnosis, and Other Opinions”)). See

§ 75.17(d)(1) (“In the practice of chiropractic, l icensees may render an analysis, diagnosis, or other opinion reg arding the findings of examinations

3 TMA’s complaint challenges the “validity of specif ic provisions of 22 Tex. Admin. Code § 75.17” that “authorize[] chiropractors to diagnose diseases ,” but the complaint never gives a citation

for those “specific provisions,” which are found only in § 75 .17(d) and (d)(1). R.4. The complaint’s vagueness and omission of any citation to § 75.17(d) and (d)( 1) is likely to blame for the opinion’s erroneous conclusion that TMA here challenges only §§ 75.17(b )(5), 75.17(b)(9), and 75.17(c)(3)(C). Slip. Op. at *5-6. That particular holding also errs in another respect: as TBCE explained in its brief, § 75.17(c)(3)(C) “no longer existed at the time [TM A’s] First Amended Complaint was filed,” and that former provision’s substance now appears elsewhere. TBCE Br. 23.8

and evaluations.”); § 75.17(d)(1)(A) and (B) (listi ng topics that may and may not be proper subjects of subsection (d)(1)’s authority gr ant). No other provision confers that authority. TMA’s pleaded request for a declaration that the “use of the term ‘diagnosis’” exceeds the “lawful scope of the practice of chirop ractic” must be a request to invalidate § 75.17(d)(1). R.4. There is no question that both the trial-court judg ment and the appeal in TMA
I “dealt” with this same provision; they did so exha ustively. To begin, TMA I quoted § 75.17(d) and (d)(1) in their entirety. Texas Bd. of Chiropractic Examiners v. Texas Med.
Ass’n , 375 S.W.3d at 489. TMA I then proceeded to hold that: (1) TMA litigated to a final judgment the issue of whether the use of the term “diagnosis” rendered § 75.17(d) and (d)(1) invalid 4 ; (2) TMA lost that claim in trial court, by virtue of the district court’s denial of TMA’s motion for summary judgment and its grant of TBCE’s counter summary-judgment motion on that claim 5 ; (3) TMA waived its right to appeal that portion of the judgment by failing to cross appeal from the judgment 6 ; and (4) the

4 “First, they sought a declaration that 75.17(d)’s use of ‘diagnosis’ in itself rendered this rule and various related rules invalid, reasoning that the s tatutory scope of chiropractic permits licensees to ‘analyze, examine, or evaluate’ certain conditions, but not to ‘diagnose’ them, and that ‘diagnose’ is instead reserved to the practice of medicine and ce rtain other health care professions.” TMA I , 375 S.W.3d at 490. TMA, however, won a narrower claim i n the district court challenging the authorization of chiropractors to diagnose on certain topics list ed in (d)(1)(A) and (B), but that portion of the judgment was reversed by this Court in TMA I. Id. at 490-91, 494, 497.

5 “The district court denied the Physician Parties’ motion and granted the Chiropractors’ motions ‘in part as to the Chiropractic Board’s use of the word ‘diagnosis’ in its rule.’” Id. at 490-91.

6 “[T]he Physician Parties’ ‘cross-point’ seeks relie f beyond that which they were afforded in the distr ict court’s judgment, which explicitly granted the Chir opractor Parties’ motion for partial summary judgment and rendered a take-nothing judgment as to the Physician Parties’ claims for a declaration9

“effect” of TMA’s failure to appeal is that the mea ning of “diagnose” is “synonymous with the phrase ‘analyze, examine, or evaluate’ in the statutory scope of chiropractic,” and thus “effectively tracks”—and so does not excee d—“the Legislature’s scope of the chiropractic.” 7 TBCE Br. 20-21. TMA’s new pleading requesting “a d eclaration that the use of the term ‘diagnosis’ . . . exceed[s] the law ful scope of the practice of chiropractic and the authority of TBCE,” R.4., attempts to avoid the binding force of the judgment
and its effect. Browning

, 165 S.W.3d at 346. There is no subject-matter jur isdiction over
this collateral-attack claim. 8 TBCE also respectfully renews its request for oral argument. The issue of whether the “diagnosis” power vested by § 75.17(d)( 1) exceeds the lawful scope of the chiropractic is a question of vital importance to t he Board, its Executive Director, and the thousands of chiropractors licensed to practice in the State of Texas. And the question of whether TMA’s “diagnosis” challenge is a collateral attack on a judgment that has already resolved that critical issue in TB CE’s favor is a question that must be

that the use of ‘diagnosis’ in itself rendered 75.1 7(d) invalid. Consequently, to raise this contentio n on appeal, the Physician Parties were required to file their own notice of appeal.” Id . at 492.

7 Id. at 491 (quoting T EX
. O CC
. C ODE § 201.002(b)(1)); id . at 494 (“[R]egardless of whether diagnosis, pathology, or etiology invoke concepts of disease a s the Physician Parties suggest, the bottom line is that paragraph (d)(1)(A) limits chiropractors to di agnoses regarding ‘the biomechanical condition of the spine and musculoskeletal system’ as required b y the statutory scope of chiropractic. Accordingly, the provision does not exceed the statutory scope o f chiropractic.”)

8 Nat’l Am. Ins. Co. v. Texas Prop. & Cas. Ins. Guar. Ass’n for Paula Ins. Co ., No. 03-09-00680-CV, 2013 WL 4817637, at *3 (Tex. App.—Austin Aug. 28, 2013, no pet.) (“[I]f the . . . action for declaratory relief attempts to avoid or requires us to interpre t or modify the prior judgment, it is an impermissi ble collateral attack, and the trial court lacked subje ct matter jurisdiction.”).10

resolved by careful analysis of the prior trial-cou rt judgment and opinion in TMA I , TMA’s pleadings in the TMA I litigation, and TMA’s pleadings in this case. That careful analysis, however, has not yet been performed.
P RAYER For these reasons, TBCE respectfully requests rehea ring and oral argument.
Respectfully submitted.

K EN P AXTON Attorney General of Texas
C HARLES E. R OY First Assistant Attorney General J AMES E. D AVIS Deputy Attorney General for Civil Litigation J ONATHAN F. M ITCHELL Solicitor General /s/ April L. Farris_

______ A PRIL L. F ARRIS Assistant Solicitor General State Bar No. 24069702
O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2923 Fax: (512) 474-2697 april.farris@texasattorneygeneral.gov
C OUNSEL FOR A PPELLANTS11 C ERTIFICATE OF S ERVICE On January 6, 2015, this motion for rehearing was served via File & ServeXpress on counsel in this proceeding as listed below: Mr. David F. Bragg L AW O FFICES OF D AVID F. B RAGG P.O. Box 2047 Bastrop, Texas 787602 dfbragg@sbcglobal.net Counsel for Appellee Mr. Donald P. Wilcox Ms. Kelly Walla T EXAS M EDICAL A SSOCIATION 401 West 15th St. Austin, Texas 78701 rocky.wilcox@texmed.org kelly.walla@texmed.org Counsel for Appellee Mr. Jason Ray R IGGS , A LESHIRE & R AY 700 Lavaca St. Suite 920 Austin, Texas 78731 jray@r-alaw.com Counsel for Intervenor Texas Chiropractic Associati on

/s/ April L. Farris April L. Farris

C ERTIFICATE OF C OMPLIANCE In compliance with Texas Rule of Appellate Procedu re 9.4(i)(2), this motion contains 2,637 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).

/s/ April L. Farris April L. Farris