No. 03-14-00396-CV 

In the Third Court of Appeals 

Austin, Texas 

TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND

YVETTE YARBROUGH, EXECUTIVE DIRECTOR, 

Appellants, 

v. 

TEXAS MEDICAL ASSOCIATION, 

 Appellee.

 

On Appeal from the 

353rd Judicial District, Travis County, Texas 

No. D-1-GN-11-000326 

MOTION FOR PANEL REHEARING

AND/OR EN BANC REHEARING

KEN PAXTON

 Attorney General of Texas 

 CHARLES E. ROY

First Assistant Attorney General 

JAMES E. DAVIS

Deputy Attorney General for 

Civil Litigation 

JONATHAN F. MITCHELL

Solicitor General 

APRIL L. FARRIS

Assistant Solicitor General 

State Bar No. 24069702 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059) 

Austin, Texas 78711-2548 

Tel.: (512) 936-2923 

Fax: (512) 474-2697 

april.farris@texasattorneygeneral.gov 

COUNSEL FOR APPELLANTS

ACCEPTED

03-14-00396-CV

3671274

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/6/2015 4:26:35 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/6/2015 4:26:35 PM JEFFREY D. KYLE Clerk
INDEX OF AUTHORITIES

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.—Austin 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 TEX. ADMIN. CODE § 71.17 ............................................................................................. 6 

22 TEX. ADMIN. CODE § 75.17 ......................................................................................... 2, 7 

22 TEX. ADMIN. CODE § 75.17(b)(5) .................................................................................... 7 

22 TEX. ADMIN. CODE § 75.17(b)(9) ................................................................................... 7 

22 TEX. ADMIN. CODE § 75.17(c)(3)(C) ............................................................................... 7 

22 TEX. ADMIN. CODE § 75.17(d) ................................................................................ 7, 8, 9 

22 TEX. ADMIN. CODE § 75.17(d)(1) ............................................................................ passim 

22 TEX. ADMIN. CODE § 75.17(d)(1)(A) .......................................................................... 8, 9 

22 TEX. ADMIN. CODE § 75.17(d)(1)(B) .............................................................................. 8 
ii 

TEX. GOV’ T CODE § 2001.038 ............................................................................................. 3 

TEX. OCC. CODE § 201.002 ................................................................................................... 2 

TEX. OCC. CODE § 201.002(b)(1) ......................................................................................... 9 
No. 03-14-00396-CV 

In the Third Court of Appeals 

Austin, Texas 

TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND 

YVETTE YARBROUGH, EXECUTIVE DIRECTOR, 

Appellants, 

v. 

TEXAS MEDICAL ASSOCIATION, 

 Appellee.

On Appeal from the 

353rd Judicial District, Travis County, Texas 

No. D-1-GN-11-000326 

MOTION FOR PANEL REHEARING AND/OR EN BANC REHEARING

The Court’s memorandum opinion—issued mere hours after this complex case 

was submitted for decision without the benefit of the requested oral argument—suffers 

from three fundamental errors that require rehearing: (1) the opinion misstates the 

appellate issues at the outset, and so resolves appellate issues that the Texas Board of 

Chiropractic Examiners and its Executive Director (TBCE) did not assert; (2) the 

opinion resolved the subject-matter jurisdiction inquiry 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 jurisdictional challenge, and consequently 

reaches an erroneous conclusion. 
2 

Appellants, therefore, respectfully request panel rehearing and an opportunity to 

present oral argument on TBCE’s issues, which are of great consequence to the practice 

of chiropractic in Texas. 

ARGUMENT

Rehearing should be granted for three reasons. First, the Court’s opinion errs 

from the outset by purporting to address and resolve a challenge to the trial court’s 

jurisdiction over the entire lawsuit. Slip Op. at *1 (misstating TBCE’s position, at the 

outset of the opinion, as “assert[ing] . . . that the 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 the trial court’s jurisdiction over 

Texas Medical Association’s (TMA) entire suit, which consists of distinct declaratoryrelief claims seeking invalidation of four different 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 issues, its requested relief, or its 

thorough briefing in this matter.1

 

 

1 Compare Slip Op. at *1 (misstating TBCE’s position as “assert[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) (challenging jurisdiction over only 

“TMA’s request for a declaration that ‘the use of the term ‘diagnosis’ in the Board’s Scope of Practice 

Rule ‘violate[s] Tex. Occ. Code § 201.002’”); id. at 37 (Prayer for Relief) (requesting relief only as to 
3 

Rather, TBCE’s plea to the jurisdiction and this appeal challenged only the trial 

court’s subject-matter jurisdiction over one of these four claims—TMA’s request to 

invalidate the provision of the Scope of Practice Rule “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 litigation, 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 rejecting 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 successive 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 “avoid the binding force of a judgment in a 

proceeding not instituted for the purpose of correcting, modifying, or vacating the 

judgment, but in order to obtain some specific relief 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 jurisdictionally 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 Government Code allows TMA to bring “an 

action” challenging the validity of a rule provision. 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 administrative 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. Nor has TBCE ever argued that the 

case—or TMA’s diagnosis-provision claim—is moot. Accordingly, 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 that were actually raised and briefed 

by TBCE. Slip. Op. *8, 6 (emphasis added). These holdings display a fundamental 

misunderstanding of the issues presented and, therefore, warrant rehearing. 

Second, rehearing is necessary because the opinion resolved the question of 

subject-matter jurisdiction in a manner that is contrary to settled Texas law: by finding 

subject-matter jurisdiction over the case as a whole 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 support 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-claim basis, not as to the case as a 
5 

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 others, 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 the 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 jurisdiction over (and the plaintiff has 

standing to bring) each of his claims; the court must 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 requests to invalidate different 

provisions of the Scope of Practice Rule as distinct claims). Thus, the trial court’s 

undisputed jurisdiction over TMA’s requests to invalidate three other Rule provisions 

has no bearing on whether the court has subject-matter jurisdiction to hear TBCE’s 

challenge to the provision “authorizing chiropractors to ‘diagnose’ diseases.” Slip. Op. 

at *3. TMA has not argued otherwise, and for good reason. Texas law is clear that claims 

for which subject-matter jurisdiction is lacking cannot 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 decision. Relying on the trial 

court’s jurisdiction over the three other claims, the opinion explicitly reserved judgment 

on the question that is dispositive of whether jurisdiction exists over TMA’s claim 
6 

requesting the invalidation of § 75.17(d)(1): whether TMA has previously litigated and 

lost the same challenge to this provision of the Scope 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 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.” 

(emphasis added)). Until this question is answered, the Court cannot resolve whether 

TMA’s new “diagnosis”-provision claim is a collateral 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 supplant the prior 

court’s declaration of § 75.17(d)(1)’s validity with a declaration of its invalidity. See Tex. 

Gen. Indem. Co., 36 S.W.3d at 639 (affirming grant of a plea to the jurisdiction where the 

parties had already proceeded to judgment in another 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 misstates TBCE’s briefing in 

reasoning that “[o]n appeal the Board argues that in 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 provisions 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 whatsoever 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 court’s judgment in TMA I dealt solely 

with the validity of certain provisions of the [Rule] that are not at issue in the present 

litigation” is still incorrect. Slip. Op. at *6. The opinion acknowledges that TMA here 

requests a declaration invalidating the Scope of Practice 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, licensees may 

render an analysis, diagnosis, or other opinion regarding the findings of examinations 

 

3

 TMA’s complaint challenges the “validity of specific 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 [TMA’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) (listing topics that may and may not be 

proper subjects of subsection (d)(1)’s authority grant). 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 chiropractic” must be a request to invalidate 

§ 75.17(d)(1). R.4. 

There is no question that both the trial-court judgment and the appeal in TMA 

I “dealt” with this same provision; they did so exhaustively. 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) invalid4; (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 claim5; (3) TMA waived its right to appeal that 

portion of the judgment by failing to cross appeal from the judgment6; 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 statutory 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 certain other health care professions.” TMA I, 375 

S.W.3d at 490. TMA, however, won a narrower claim in the district court challenging the authorization 

of chiropractors to diagnose on certain topics listed 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 relief beyond that which they were afforded in the district 

court’s judgment, which explicitly granted the Chiropractor Parties’ motion for partial summary 

judgment and rendered a take-nothing judgment as to the Physician Parties’ claims for a declaration 
9 

“effect” of TMA’s failure to appeal is that the meaning 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 exceed—“the Legislature’s scope of the 

chiropractic.”7 TBCE Br. 20-21. TMA’s new pleading requesting “a declaration that the 

use of the term ‘diagnosis’ . . . exceed[s] the lawful 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 jurisdiction 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 the 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 TBCE’s favor is a question that must be 

 

that the use of ‘diagnosis’ in itself rendered 75.17(d) invalid. Consequently, to raise this contention on 

appeal, the Physician Parties were required to file their own notice of appeal.” Id. at 492. 

7

Id. at 491 (quoting TEX. OCC. CODE § 201.002(b)(1)); id. at 494 (“[R]egardless of whether diagnosis, 

pathology, or etiology invoke concepts of disease as the Physician Parties suggest, the bottom line is

that paragraph (d)(1)(A) limits chiropractors to diagnoses regarding ‘the biomechanical condition of 

the spine and musculoskeletal system’ as required by the statutory scope of chiropractic. Accordingly,

the provision does not exceed the statutory scope of 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 interpret or modify the prior judgment, it is an impermissible 

collateral attack, and the trial court lacked subject matter jurisdiction.”).
10 

resolved by careful analysis of the prior trial-court 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. 

PRAYER

For these reasons, TBCE respectfully requests rehearing and oral argument.

 

Respectfully submitted. 

KEN PAXTON

 Attorney General of Texas 

 CHARLES E. ROY

First Assistant Attorney General 

JAMES E. DAVIS

Deputy Attorney General for 

Civil Litigation 

JONATHAN F. MITCHELL

Solicitor General 

/s/ April L. Farris_______

APRIL L. FARRIS

Assistant Solicitor General 

State Bar No. 24069702 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548 (MC 059) 

Austin, Texas 78711-2548 

Tel.: (512) 936-2923 

Fax: (512) 474-2697 

april.farris@texasattorneygeneral.gov 

COUNSEL FOR APPELLANTS
11 

CERTIFICATE OF SERVICE

 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

LAW OFFICES OF DAVID F. BRAGG

P.O. Box 2047 

Bastrop, Texas 787602 

dfbragg@sbcglobal.net 

Counsel for Appellee 

Mr. Donald P. Wilcox

Ms. Kelly Walla 

TEXAS MEDICAL ASSOCIATION

401 West 15th St. 

Austin, Texas 78701 

rocky.wilcox@texmed.org 

kelly.walla@texmed.org 

Counsel for Appellee 

Mr. Jason Ray 

RIGGS, ALESHIRE & RAY

700 Lavaca St. Suite 920 

Austin, Texas 78731 

jray@r-alaw.com 

Counsel for Intervenor Texas Chiropractic Association 

 /s/ April L. Farris 

April L. Farris 

CERTIFICATE OF COMPLIANCE

 In compliance with Texas Rule of Appellate Procedure 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