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Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners

Court of Appeals of Texas, Third District, Austin

February 17, 2017

Texas Association of Acupuncture and Oriental Medicine, Appellant
Texas Board of Chiropractic Examiners; and Patricia Gilbert, Executive Director, in her Official Capacity, Appellees


          Before Chief Justice Rose, Justices Pemberton and Field



         We grant, in part, appellant Texas Association of Acupuncture and Oriental Medicine's motion for rehearing, withdraw our previous opinion and judgment dated August 18, 2016, and substitute the following opinion and judgment in their place.

         The Texas Association of Acupuncture and Oriental Medicine (the Acupuncture Association) sued the Texas Board of Chiropractic Examiners (the Chiropractic Board) and Patricia Gilbert, in her official capacity as the Executive Director of the Chiropractic Board, seeking declarations that certain provisions in two of the Chiropractic Board's administrative rules are invalid.[1] See Tex. Gov't Code § 2001.038 (permitting challenge to validity or applicability of agency rules); see also 22 Tex. Admin. Code §§ 78.13(a)(4), (b)(2), (e)(2)(C) (2016) (Texas Bd. of Chiropractic Exam'rs, Scope of Practice), 78.14 (Texas Bd. of Chiropractic Exam'rs, Acupuncture). Specifically, the Acupuncture Association asserted that the rule provisions are void because they authorize chiropractors to perform acupuncture and, as a result, impermissibly expand the scope of practice for chiropractors beyond that permitted by statute. See Tex. Occ. Code §§ 201.001-.606. Alternatively, the Acupuncture Association sought a declaration that the statutory scheme violates the Texas Constitution to the extent it authorizes chiropractors to practice acupuncture. See Tex. Const., art. III, § 35, art. XVI, § 31.

         On cross-motions for summary judgment, the trial court granted the Chiropractic Board's motion for summary judgment, denied the Acupuncture Association's motion for summary judgment, and dismissed the Acupuncture Association's claims. The Acupuncture Association filed this appeal. We will reverse that portion of the trial court's judgment dismissing the Acupuncture Association's challenge to the Chiropractic Board's rule expressly authorizing acupuncture and remand for further proceedings. In all other respects, we will affirm the judgment of the trial court.


         The practice of medicine in Texas is governed by the Texas Medical Practice Act and regulated by the Texas Medical Board. See Tex. Occ. Code §§ 151.001-168.202. Among other things, the Medical Practice Act requires that a person have a Medical Board-issued license to lawfully "practice medicine" in the state. Id. § 155.001. The Medical Practice Act, however, exempts a variety of other heath-related fields-the practitioners of which are subject to separate legal requirements and regulations-from compliance with the Act and from the Texas Medical Board's regulatory authority. See id. § 151.052. One of these exempted fields is the practice of chiropractic, which is regulated by Chapter 201 of the Occupations Code (or "the Chiropractic Act"). See id. §§ 151.052(a)(3), 201.001-.606. The Chiropractic Act defines the permissible scope of chiropractic practice, imposes education and licensing requirements, and delegates regulatory authority to the Chiropractic Board. The net effect of these statutes is that a person licensed as a chiropractor can lawfully do things that would otherwise constitute "practicing medicine" without obtaining a license from the Texas Medical Board as long as he remains within the statutory scope of practice for chiropractors. See Texas Bd. of Chiropractic Exam'rs v. Texas Med. Ass'n, 375 S.W.3d 464, 467 (Tex. App.-Austin 2012, pet. denied) ("TMA I").

         In relevant part, section 201.002 of the Chiropractic Act defines the scope of chiropractic practice as follows:

(b) A person practices chiropractic under this chapter if the person:
(1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body; [or]
(2) performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system[.]
. . .
(c) The practice of chiropractic does not include:
(1) incisive or surgical procedures[.]

Tex. Occ. Code § 201.002(b), (c). Section 201.002 defines the term "incisive or surgical procedures" as follows:

"Incisive or surgical procedure" includes making an incision into any tissue, cavity, or organ by any person or implement. The term does not include the use of a needle for the purpose of drawing blood for diagnostic testing.

Id. § 201.002(a)(3).

         In the years that followed the Legislature's promulgation of the current scope of practice for chiropractors, the Chiropractic Board "informally advised" its chiropractic licensees that the Chiropractic Act permitted chiropractors in Texas to perform a variety of procedures, including acupuncture.[2]See TMA I, 375 S.W.3d at 470 & n.8. In 2005, the Texas Legislature mandated that the Chiropractic Board "adopt [formal] rules clarifying what activities are included within the scope of the practice of chiropractic and what activities are outside that scope, " including "clearly specify[ing] the procedures that chiropractors may perform" and "any equipment and the use of that equipment that is prohibited." See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8, 2005 Tex. Gen. Laws 3464, 3466 (codified at Tex. Occ. Code §§ 201.1525-.1526). In response, the Chiropractic Board promulgated scope-of-practice rules that, among other things, authorized chiropractors to perform a procedure called needle EMG, a procedure called manipulation-under-anesthesia (MUA), and acupuncture. See 31 Tex. Reg. ...

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