Court of Appeals of Texas, Third District, Austin
Texas Association of Acupuncture and Oriental Medicine, Appellant
Texas Board of Chiropractic Examiners; and Patricia Gilbert, Executive Director, in her Official Capacity, Appellees
THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-14-000355, HONORABLE ORLINDA NARANJO, JUDGE
Chief Justice Rose, Justices Pemberton and Field
K. FIELD, JUSTICE
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.
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. 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,
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.
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)
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
(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"
"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).
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.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. ...