Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director// Ellen Jefferson, D.V.M. v. Ellen Jefferson, D.V.M.// Texas State Board of Veterinary Medical Examiners, and Nicole Oria, in Her Official Capacity as Executive Director ( 2015 )

ACCEPTED
03-14-00774-CV
7568136
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/27/2015 5:13:19 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00774-CV
IN THE COURT OF APPEALS RECEIVED IN
3rd COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN 10/27/2015 5:13:19 PM
JEFFREY D. KYLE
Clerk
TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS AND
NICOLE ORIA, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR
Appellants,
v.
ELLEN JEFFERSON, D.V.M.
Appellee.
On Appeal from the 250th Judicial District Court
of Travis County, Texas
BRIEF OF AMICUS CURIAE TEXAS FARM BUREAU
James D. Bradbury
State Bar No. 02814500
Courtney Cox Smith
State Bar No. 24045711
JAMES D. BRADBURY, PLLC
9442 Capital of Texas Hwy N
Arboretum Plaza 1, Suite 500
Austin, Texas 78759
Telephone: 512-343-3626
jim@bradburycounsel.com
ccox@bradburycounsel.com
ATTORNEYS FOR AMICUS CURIAE
IDENTITY OF PARTIES AND COUNSEL
Appellants/Cross-Appellees/Defendants:
Texas State Board of Veterinary Medical Examiners and Nicole Oria, In Her
Official Capacity as Executive Director
Appellants’ Counsel:
Andres Lutostanski
State Bar No. 24072217
Ted A. Ross
State Bar No. 24008890
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Telephone: 512-475-4200
Andrew.lutostanski@texasattorneygeneral.gov
Ted.ross@texasattorneygeneral.gov
Appellee/Cross-Appellant/Plaintiff:
Ellen Jefferson, D.V.M.
Appellee’s Counsel:
David F. Brown Ryan Clinton
State Bar No. 03108700 State Bar No. 24027934
David P. Blanke Davis, Gerald & Cremer, P.C.
State Bar No. 02453600 111 Congress Ave., Suite 1660
Ewell, Brown & Blanke, LLP Austin, Texas 78701
111 Congress Ave., 28th Floor Telephone: 512-537-9938
Austin, Texas 78701 rdclinton@dgclaw.com
Telephone: 512-457-0233
dbrown@ebblaw.com
dblanke@ebblaw.com
ii
IDENTITY AND STATEMENT OF INTEREST OF AMICUS CURIAE
Texas Farm Bureau is a Texas non-profit membership corporation committed
to the advancement of agriculture and prosperity for rural Texas. Founded in 1933,
Texas Farm Bureau has over 500,000 member families and is associated with 206
organized county Farm Bureau organizations across the state. Texas Farm Bureau
and its members—who are farmers, growers, and producers—believe the
preservation of certainty in the application of rules and statutes and the autonomy of
farmers, growers, and producers to manage and care for their livestock and farms is
of critical importance to the strength of the agricultural economy in Texas. The
“owner exemption” to the Veterinary Licensing Act is a key provision heavily relied
upon by agricultural operations throughout Texas, and preservation of this
exemption is of significant concern to Texas Farm Bureau and its members. Texas
law has long deferred to private property rights and interests. The decision of the
trial court erodes and threatens the owner exemption and in so doing, imperils those
that own and manage livestock in Texas.
The Texas Farm Bureau is not a party to the case and will pay all attorney’s
fees incurred in the preparation of this amicus curiae brief. The Texas Farm Bureau
certifies that copies of the Brief have been or will be served on all parties. The Texas
Farm Bureau respectfully requests the opportunity to present these policy concerns
affecting agriculture.
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
IDENTITY AND STATEMENT OF INTEREST OF AMICUS CURIAE .......... iii
TABLE OF CONTENTS ....................................................................................... iv
INDEX OF AUTHORITIES.................................................................................. vi
STATEMENT OF THE CASE .............................................................................. 1
ISSUES PRESENTED .......................................................................................... 2
STATEMENT OF FACTS .................................................................................... 3
SUMMARY OF THE ARGUMENT .................................................................... 4
ARGUMENT ......................................................................................................... 6
I. The Trial Court’s decision limits the “owner exemption,” creating
uncertainty and ambiguity and threatening the continued protection
of private property rights in Texas. ................................................... 6
A. The Texas Legislature expressly intended the “owner exemption”
to be absolute and outside the authority and jurisdiction of the
Board. ........................................................................................... 6
B. The “owner exemption” is a critical component of the agricultural
industry and must be protected. ................................................... 9
C. The trial court’s ruling grants discretion to the Board in
contravention of the Legislature’s clearly expressed intent. ........ 11
II. The Trial Court erred by requiring Dr. Jefferson to exhaust her
administrative remedies and creating new Board jurisdiction where
none exists. ........................................................................................ 13
III. The Trial Court erred by allowing and encouraging the Board to act
outside its statutory authority. ........................................................... 16
CONCLUSION AND PRAYER ........................................................................... 17
iv
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i) .................................... 18
CERTIFICATE OF SERVICE .............................................................................. 19
v
INDEX OF AUTHORITIES
Texas Cases
City of Round Rock v. Whiteaker, 241 S.W.3d 609 (Tex. App.—Austin 2007, pet.
denied)............................................................................................................... 13, 16
City of Sherman v. Pub. Util. Comm’n of Tex., 643 S.W.2d 681 (Tex. 1983)...... 17
Pistole v. State, 150 S.W. 618 (Tex. Crim. App. 1912)......................................... 14
Subaru of Am. Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212
(Tex. 2002) ............................................................................................................. 13
Tara Partners, Ltd. v. City of S. Hous., 282 S.W.3d 564 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied) ............................................................................... 17
Tex. Bd. of Chiropractic Examiners v. Tex. Med. Ass’n, 375 S.W.3d 464 (Tex.
App.—Austin 2012, pet. denied) ........................................................................... 14
Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780 (Tex. 1978) ............. 14
Texas Statutes
Tex. Occ. Code Ann. § 801.002............................................................................ 7, 8
Tex. Occ. Code Ann. § 801.004........................................................... 1, 6, 8, 12, 14
Tex. Occ. Code Ann. § 801.251................................................................................ 8
Texas Rules and Regulations
22 Tex. Admin. Code § 573.72 ................................................................................. 1
22 Tex. Admin. Code § 573.80 ................................................................................. 1
vi
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
STATEMENT OF THE CASE
This case centers on private property rights in Texas, and specifically, on the
long-recognized right of agriculture owners to manage the care and treatment of their
animals free of state regulation under the Veterinary Licensing Act. Appellants are
the Texas Board of Veterinary Medical Examiners and its Executive Director
(collectively, the “Board”) who are seeking to regulate the care and treatment of
small shelter animals in contravention of the “owner exemption” of Tex. Occ. Code
Ann. § 801.004(1). Appellee is Dr. Ellen Jefferson (“Dr. Jefferson”) who is an
animal shelter veterinarian and the subject of the Board’s action.
The Honorable Gisela D. Triana held a combined hearing on the Board’s Plea
to the Jurisdiction and a Trial on the Merits in the 250th Judicial District Court of
Travis County, Texas on August 4, 2014. The trial court granted the Plea to the
Jurisdiction in part, dismissing Dr. Jefferson’s claims for declaratory judgment on
the ground that she must exhaust administrative remedies. The trial court entered
judgment declaring that the Board’s rules in 22 Tex. Admin. Code §§ 573.72 and
573.80(2) are contrary to the “owner exemption” in Tex. Occ. Code Ann. §
801.004(1) and therefore invalid, and further declared that the Board had the
authority to enforce other laws concerning a veterinary license notwithstanding the
1
“owner exemption.” The trial court remanded the case to the Board for further
proceedings. Both parties seek review of the trial court’s decision before this Court.
ISSUES PRESENTED
The trial court erred in placing the continued strength and existence of the
“owner exemption” to the Veterinary Licensing Act in peril. The trial court’s rulings
undermine the “owner exemption” creating uncertainty and ambiguity and
threatening the continued protection of private property rights in Texas. The Texas
Legislature long ago recognized the importance of the “owner exemption” to Texas
citizens, particularly agricultural operators and producers. Texas producers should
have confidence that the “owner exemption” is not open to the mercy of the Board
or this trial court regarding a specific exemption created by the Texas Legislature.
The trial court erred by limiting the “owner exemption,” thereby wrongly
expanding the Board’s authority to act and creating uncertainty and ambiguity in the
law. The trial court further erred in its unlawful expansion of limited agency
jurisdiction by requiring that Dr. Jefferson must exhaust administrative remedies
before challenging the Board’s ultra vires action against her. Finally, the trial court
erred by ignoring the clearly expressed intent of the Texas Legislature to limit the
Board’s authority and jurisdiction when the court granted the Board discretionary
authority to regulate notwithstanding the “owner exemption.”
2
STATEMENT OF FACTS
This case stems from the actions of Dr. Jefferson, a veterinarian, who founded
and operated a “No-Kill” animal shelter in San Antonio, Texas called San Antonio
Pets Alive (“SAPA”). Dr. Jefferson’s role in SAPA was substantial, serving as its
Executive Director, lead veterinarian, and responsible for SAPA’s daily affairs.
(2.RR.124, 2.RR.171, 3.RR.PX43:EJ001539) Dr. Jefferson relied upon the “owner
exemption” to the Texas Veterinary Licensing Act to provide veterinary services to
the animals in the shelter and to care and treat the animals. (3.RR.PX18:EJ000638;
2.RR.144-45) It had long been understood that animals not claimed by their owners
within the applicable hold period (often three days) become property of the shelter.
In other words, the shelter becomes the owner of the animals.
(3.RR.PX18:EJ000638) As such, SAPA could rely on the “owner exemption” to care
for and treat its animals without intervention, oversight, or regulation by the Board.
On December 27, 2013, the Board brought charges against Dr. Jefferson
alleging wrongdoing with respect to a dog owned by SAPA. (1.CR.117) Dr.
Jefferson, believing the Board’s action to be illegal, contrary to the long-recognized
“owner exemption” to the Act, and outside the scope of statutory authority granted
to the Board by the Legislature, filed a lawsuit in the trial court of Travis County,
Texas seeking declaratory relief that the Board’s conduct was unlawful and ultra
vires and seeking temporary and permanent injunctive relief to stop the Board’s
3
action. (1.CR.4-21) The Board challenged Dr. Jefferson’s lawsuit through a Plea to
the Jurisdiction. (1.CR.47, 133-35) After a hearing and trial on the merits, the court
granted the Plea to the Jurisdiction in part and denied it in part, invalidating two of
the Board’s rules. (1.CR.855.857) Because the court ruled that it did not have
jurisdiction to consider the Board’s authority to prosecute Dr. Jefferson, the Board’s
action against Dr. Jefferson was remanded to the State Office of Administrative
Hearings. After a hearing, the Administrative Law Judge determined that Dr.
Jefferson was acting under the “owner exemption” and that her actions were exempt
from the Board’s jurisdiction. See Ex. E to Brief of Appellant Ellen Jefferson,
D.V.M.
SUMMARY OF THE ARGUMENT
It is well-settled in Texas that the care and treatment of animals by their
owners is exempt from regulation under the Veterinary Licensing Act. Although this
case contemplates the “owner exemption” in the context of shelter based small
animals and pets, the scope of the exemption is far-reaching. For decades, Texas
farmers and ranchers have relied on the “owner exemption” to care for and treat their
livestock herds. The continued strength and continuity of this exemption will ensure
that agricultural operators and producers are able to continue in the efficient and
cost-effective care and treatment of their animals. The implications of this case are
therefore significant and far-reaching.
4
The trial court’s ruling erodes the “owner exemption,” creating uncertainty
and ambiguity and placing the continued existence of the exemption at risk by
converting a once clear and absolute exemption to a discretionary and selectively
applied exemption. The trial court’s decision further improperly expands the
authority and power of the Board beyond the statutory authority granted by the Texas
Legislature. The trial court wrongly enlarges agency jurisdiction where no such
jurisdiction exists or was ever intended by the Legislature.
Under the trial court’s rulings, the Board could opt to override the “owner
exemption” if it chooses to do so. In that case, agricultural operators and producers
may be required to call, wait and pay for a veterinarian for any care or treatment of
their herd, activities currently conducted by the farmer himself. Further, livestock
operators would be cast into regulatory uncertainty over whether they can rely on
the “owner exemption” to be absolute. The consequences for the agricultural
industry if the “owner exemption” is diminished would be dire. In a state with over
19 million head of cattle and the top producer of beef cattle in the United States,
Texas livestock producers daily rely on the certainty of the “owner exemption.” The
Legislature intended this exemption to be and remain absolute. Without question,
the Board does not have authority or jurisdiction to regulate owners of animals in
the State of Texas. The trial court’s rulings undermining the “owner exemption”
should not stand.
5
ARGUMENT
I. The Trial Court’s decision limits the “owner exemption,” creating
uncertainty and ambiguity and threatening the continued protection of
private property rights in Texas.
Texas law has long recognized and closely guarded private property rights
from the unwarranted and unintended regulatory reach of state agencies. Among
these private property rights is the recognition that animals are the property of their
owner. Even more so where production livestock is concerned. The Texas
Legislature affirmed the security of this right by creating a clear and absolute
exception to the Veterinary Licensing Act and placing the authority for the treatment
and care of an animal in the hands of the owner. Tex. Occ. Code Ann. § 801.004(1).
Notably, the legislature did not empower the Board with discretion to selectively
enforce the “owner exemption.” The statute makes clear that the “owner exemption”
applies even against the wishes and intentions of the Board. See id. (stating that the
Veterinary Licensing Act does not apply “in any manner” to “the owner of the
animal”).
A. The Texas Legislature expressly intended the “owner exemption”
to be absolute and outside the authority and jurisdiction of the
Board.
The Veterinary Licensing Act is expansive in application. The Act broadly
defines “veterinary medicine” as including “veterinary surgery, reproduction and
obstetrics, dentistry, ophthalmology, dermatology, cardiology, and any other
6
discipline or specialty of veterinary medicine.” Tex. Occ. Code Ann. § 801.002(7).
The Act goes on to describe activities considered to be the “practice of veterinary
medicine” as:
(A) the diagnosis, treatment, correction, change, manipulation,
relief, or prevention of animal disease, deformity, defect,
injury, or other physical condition, including the prescription
or administration of a drug, biologic, anesthetic, apparatus,
or other therapeutic or diagnostic substance 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 perform an act
listed in Paragraph (A); or
(D) the receipt of compensation for performing an act listed in
Paragraph (A).
Id. § 801.002(5). The Act, by its own language, is intended to encompass a large
swath of persons, activities, procedures, and circumstances.
Although the Texas Legislature intended the Act to be broad in application, it
did not intend the Act to be without exception. The Legislature carved out certain
exemptions over which the Act would have no application and the Board would have
no jurisdiction. At the forefront of these exemptions is the “owner exemption,”
which the Legislature created when it determined the Act “does not apply” to:
the treatment or care of an animal in any manner by the owner of the
animal, an employee of the owner, or a designated caretaker of the
animal, unless the ownership, employment, or designation is
established with the intent to violate this chapter.
7
Id. § 801.004(1) (emphasis added). Lest there be any question about the intended
breadth of the exemption, the Legislature made clear that the act did not apply to
owners “in any manner.” Id.; see also Tex. Occ. Code Ann. § 801.251 (excepting
exemptions of § 801.004 (including the “owner exemption”) from requirement to
obtain a license for practice of veterinary medicine). Owners are therefore entirely
exempt from regulation by the Board. There is no question or discretion.
The activities encompassed by the “owner exemption” are numerous and
varied, ranging from diagnosis and treatment to disease prevention and covering a
wide array of specialties from surgery to reproductive issues to dermatology and
beyond. See id. §§ 801.002(5), (7). The Board itself has recognized the absolute
exemption for owners when it said, “[u]nder Texas law, an animal’s owner or a
caretaker designated by the owner can perform acts of veterinary medicine on the
animal without involving a veterinarian and without concern for establishing a
veterinarian-client-patient relationship, because the owners and caretakers are
exempt from the Veterinary Licensing Act.” Texas State Board of Veterinary Medical
Examiners, Board Notes, Fall 2012, at 2. The scope of activities allowed, therefore,
under the “owner exemption” is broad, and for those who care for and raise animals
as a business, the continued protection of the exemption is critical.
Although the present case involves shelter animals, the proper construction
and application of the “owner exemption” is essential and must be done in light of
8
the substantial industry for which it was created, Texas livestock production. Texas
is not alone in exempting owners from veterinary regulation. Forty-one other states
plus the District of Columbia recognize some form of the “owner exemption.” See
AVMA State Legislative and Regulatory Department, Scope of Practice:
Complementary and Alternative Veterinary Medicine (CAVM) and Other Practice
Act Exemptions (last updated May 2015), available at
https://www.avma.org/Advocacy/StateAndLocal/Pages/sr-cavm-exemptions.aspx.
The threatened limitation of this exemption poses significant consequences for the
State of Texas.
B. The “owner exemption” is a critical component of the agricultural
industry and must be protected.
Agricultural owners and operators have long relied on the “owner exemption”
for efficient and effective care and treatment of their livestock. It forms a key aspect
of the industry. With over 248,800 farms and ranches spanning 130.2 million acres,
Texas leads the nation in cattle, sheep, and goats. Tex. Dept. of Agriculture, Texas
Ag Stats, available at https://www.texasagriculture.gov/About/TexasAgStats.aspx.
Animal production in Texas is a multi-billion-dollar industry. In 2012, cattle alone
brought in $10.5 billion. Tex. Dept. of Agriculture, Texas Ag Stats, available at
https://www.texasagriculture.gov/About/TexasAgStats.aspx. Milk and broiler sales
brought an additional $3.5 billion into the Texas economy. Id.
9
At the beginning of 2015, Texas producers held an inventory of nearly 19
million cattle, nearly 1 million goats, over 700,000 sheep, over 800,000 hogs, and
nearly 600 million chickens. Nat’l Agricultural Statistics Serv., U.S. Dept. of
Agriculture, 2014 State Agriculture Overview, at 1, available at
https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=T
EXAS. These numbers don’t even account for the thousands of smaller farms
keeping horses and smaller herds who equally rely on the “owner exemption” for
the care and treatment of their animals.
The importance of the “owner exemption” extends, therefore, well beyond the
issue of the care and treatment of shelter animals. The continued strength and breadth
of this exemption is critical to agricultural operators and producers, and it is a
concept that is long-recognized in the agricultural community. Whether a farmer
with a small herd of horses or a large-scale operator with thousands of beef cattle or
chickens, agricultural operators for years have daily relied on this exemption as they
diagnosis, treat, and care for their animals. The “owner exemption” allows these
operators to care for their animals in real-time, diagnosing, administering
prescription medications, performing certain procedures to prevent disease, healing
an injury, or relieving a physical condition.
Perhaps the simplest example is a ranch owner finding a sick calf or injured
cow in the pasture, as happens every day on farms and ranches across Texas. Under
10
the “owner exemption,” the owner and his employees can quickly diagnose the
problem and treat it with medicine or other veterinary practices in the vast open
range. There is neither the time, the money, nor the need to drive to the nearest town,
call a veterinarian, and wait for a few days for a ranch call by the veterinarian.
Without the “owner exemption” it would be an unworkable system. There simply
are not enough large animal veterinarians in Texas to treat the massive herds.
The successful history of livestock production in Texas depends upon the
independent and experienced judgment of producers. Without the full protection of
the “owner exemption,” livestock owners could not operate profitably as they would
be forced to call, wait, and pay a veterinarian for every potential animal ailment or
condition. The relationship between the “owner exemption” and agriculture,
therefore, is long-running and essential to the future economic health and success of
the industry.
C. The trial court’s ruling grants discretion to the Board in
contravention of the Legislature’s clearly expressed intent.
The Texas Farm Bureau supports the portion of the trial court’s judgment that
invalidates two of the Board’s rules that attempted to undermine the magnitude of
the “owner exemption.” The trial court, however, places the exemption at risk by
ruling that the Board can selectively enforce the Veterinary Licensing Act against a
veterinarian notwithstanding the “owner exemption.” Under some interpretations,
the trial court’s ruling could give the Board authority to enforce the Act or “ensure
11
compliance” with the Act so long as it gives “proper and due regard for the
ownership exemption.” (1 CR.856) This new “discretionary” authority extends far
beyond that given to the Board by the Texas Legislature, which intended that owners
would not be subject to regulation “in any manner.” See Tex. Occ. Code Ann. §
801.004(1). It in fact rewrites the statute. And it is the Texas Legislature alone that
determined the private property rights of animal owners should be protected and be
absolutely exempted from regulation by the Board. Instead, the Legislature found it
insufficient for the Board to merely give “due regard” to owners in the care and
treatment of their animals. The Legislature removed this entire category of care and
treatment of animals by their owners from the force and effect of the Act. Livestock
producers have relied for decades on the Legislature’s clear meaning. The trial
court’s ruling oversteps and provides new-found authority to the Board where no
such authority exists or was ever intended.
The Board contends that its rules and efforts against Dr. Jefferson do not alter
the “owner exemption” as a whole but addresses certain situations that are within its
statutory authority to regulate. In reality, the Board’s rules combined with the trial
court’s ruling in this case, are chipping away at the “owner exemption” in favor of a
discretionary case-by-case regulatory environment. The Board’s actions risk
focusing on the narrow area of small animal care while jeopardizing the substantial
12
and well-operating private livestock industry. Erosion of part of the exemption,
however, threatens the whole.
This is not a case dealing with a small subset of shelter animals. The rulings
in this case stand to impact all owners of animals, including the thousands of Texas
farmers and ranchers who daily rely on the “owner exemption” to manage their
herds, provide a safe food supply, and operate a profitable business. At best, the
court’s ruling injects uncertainty and ambiguity into the process, and at worst, it
erodes the “owner exemption” entirely, threatening private property rights and
ignoring the clear expressed intent of the Legislature. The unique facts and
circumstances of this case should not be read to interpret or diminish the
Legislature’s grant of a complete exemption to the owners of livestock in Texas.
The trial court’s ruling should be reversed.
II. The Trial Court erred by requiring Dr. Jefferson to exhaust her
administrative remedies and creating new Board jurisdiction where none
exists.
The trial court’s requirement that Dr. Jefferson exhaust her administrative
remedies before challenging the Board’s authority to regulate is patently wrong.
Administrative agencies may exercise only those powers the Legislature, through
statutory language, confers upon them, and this authority cannot be expanded by
courts or the agencies themselves. City of Round Rock v. Whiteaker, 241 S.W.3d
609, 641 (Tex. App.—Austin 2007, pet. denied) (quoting Subaru of Am. Inc. v.
13
David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002)). When an agency is
acting beyond its statutory authority, as it is alleged in this case, the doctrine of
exhaustion of administrative remedies does not apply. Westheimer Indep. Sch. Dist.
v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978).
The Board has no authority to regulate or exercise jurisdiction over owners of
livestock or animals in Texas. Tex. Occ. Code Ann. § 801.004(1). Further, the
Board’s own interpretation of its statutory authority or jurisdiction is given no
deference when the statute in question is unambiguous. See Tex. Bd. of Chiropractic
Examiners v. Tex. Med. Ass’n, 375 S.W.3d 464, 475 (Tex. App.—Austin 2012, pet.
denied). The intent of the Texas Legislature is unequivocal with respect to the
“owner exemption.” The Board has no authority or jurisdiction over Dr. Jefferson or
any other owner of animals or livestock in the State of Texas, and the trial court’s
attempt to vest the Board with jurisdiction or otherwise expand its authority is
patently wrong. See Pistole v. State, 150 S.W. 618, 621 (Tex. Crim. App. 1912)
(reasoning that “[i]n some instances this court might materially differ with the
Legislature about the policy of certain legislation, but, whenever the Legislature has
the right itself to pass upon the question of policy, this court cannot substitute its
judgment for that of the Legislature. The Legislature, and not this court, knows, or
is, so far as this court is concerned, conclusively presumed to know, the differences,
if any, of the various persons who have heretofore practiced or who may hereafter
14
seek to practice veterinary medicine or surgery, and would better know than this
court the situation of such persons so as to make the proper distinction between them
as classes, not as individuals, in authorizing or prohibiting them from practicing such
profession”).
As with the “owner exemption,” the implications of the court’s ruling extend
far beyond the facts of this case. The trial court’s ruling goes against long-standing
precedent—precedent that seeks to protect the citizens of Texas against overstepping
by administrative agencies. The citizens and businesses that make up Texas should
not be required to endure the time, expense, and complexity of an administrative
hearing before they may directly challenge the authority of an agency to bring the
action at issue. Dr. Jefferson, and others who stand in her shoes in the future, should
be able to determine the authority of the agency at issue in the courts before being
compelled to endure a long and expensive administrative process. Absent such an
early, clear right to challenge an agency’s ultra vires exercise of power, the agency
inherits additional power and authority. Landowners and operators will be left
subject to a process that the Legislature never endorsed or intended. The trial court’s
ruling ignores this long-standing precedent on agency jurisdiction and therefore,
should not stand.
15
III. The Trial Court erred by allowing and encouraging the Board to act
outside its statutory authority.
Through the lens of Texas policy of clearly-defined and limited governmental
reach, the court’s rulings and encouragement of the Board to act outside its statutory
authority sets a remarkable and dangerous precedent. The Board’s overstepping has
not gone without notice as several members of the Texas Legislature expressed
dismay at the Board’s actions in this case and beyond. Senator Charles Perry of
Lubbock in particular chastised the Board for being “so prescriptive that people are
paralyzed to do their job” and criticizing the Board for failing to recognize the big
picture. See Texas Senate Committee on Agriculture, Water & Rural Affairs hearing
on April 27, 2015.
Although in this case it is the Veterinary Board that is overstepping its
authority, in another case it may be the Texas Commission on Environmental
Quality, the Texas Department of Agriculture, the Railroad Commission of Texas,
or the Public Utility Commission of Texas—each of which can have significant
impacts on agricultural operators and producers and average citizens alike. The
Texas Legislature and it alone has the power to confer or limit the authority of
administrative agencies. See Whiteaker, 241 S.W.3d at 641. It is an important part
of the checks and balances that ensure the fair and balanced operation of
government.
16
Agencies tend towards the expansion of their own authority. See, e.g., Tara
Partners, Ltd. v. City of S. Hous., 282 S.W.3d 564, 571 (Tex.App.—Houston [14th
Dist.] 2009, pet. denied); see also City of Sherman v. Pub. Util. Comm’n of Tex., 643
S.W.2d 681, 684 (Tex. 1983). The surest way to silently broaden the reach of Texas
agencies is to compel citizens and businesses to endure and submit to regulation
before challenging its legal authority. The expenditure of time and money will place
the power with the agencies. Endorsing the expansion of the Board’s action in this
case beyond its statutory authority opens the door to other agencies following suit.
If unchecked, protections for Texas citizens that have long been protected and
preserved by the Texas Legislature will be threatened. Private property rights will
take a backseat to the will of administrative agencies.
CONCLUSION AND PRAYER
This case extends far beyond the care and treatment of shelter animals in
central Texas clinics. The continued strength of the “owner exemption”—an
exemption long-relied upon by Texas farmers and ranchers in caring for their
livestock herds—must be preserved without any judicial or agency exceptions. The
erosion of this exemption would have a significant impact on a multi-billion-dollar
industry that is not only the mythic history of Texas but also is a key component of
the nation’s food supply. The trial court’s rulings that place the “owner exemption”
in peril should not stand. The Texas Farm Bureau therefore respectfully prays that
17
this Court consider and protect the rights of Texas farmers and ranchers, affirm the
trial court’s invalidation of the Board’s rules, and reverse the trial court’s judgment
as to all other rulings.
Respectfully submitted,
/s/ James D. Bradbury
James D. Bradbury
State Bar No. 02814500
Courtney Cox Smith
State Bar No. 24045711
JAMES D. BRADBURY, PLLC
9442 Capital of Texas Highway N
Plaza 1, Suite 500
Austin, Texas 78759
Telephone: 512-343-3626
Facsimile: 512-345-2924
jim@bradburycounsel.com
ATTORNEYS FOR AMICI CURIAE
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(i)
This to certify that the foregoing Brief of Amici Curiae consisted of 3,795
words, in accordance with Texas Rule of Appellate Procedure 9.4(i)(2).
/s/ James D. Bradbury
James D. Bradbury
18
CERTIFICATE OF SERVICE
This is to certify that on this 27th day of October, 2015, a true and correct
copy of the foregoing document was served on all parties via electronic service
provider and/or electronic mail:
Andres Lutostanski
State Bar No. 24072217
Ted A. Ross
State Bar No. 24008890
Office of the Attorney General of Texas
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Telephone: 512-475-4200
Andrew.lutostanski@texasattorneygeneral.gov
Ted.ross@texasattorneygeneral.gov
David F. Brown
State Bar No. 03108700
David P. Blanke
State Bar No. 02453600
Ewell, Brown & Blanke, LLP
111 Congress Ave., 28th Floor
Austin, Texas 78701
Telephone: 512-457-0233
dbrown@ebblaw.com
dblanke@ebblaw.com
Ryan Clinton
State Bar No. 24027934
Davis, Gerald & Cremer, P.C.
111 Congress Ave., Suite 1660
Austin, Texas 78701
Telephone: 512-537-9938
rdclinton@dgclaw.com
/s/ James D. Bradbury
James D. Bradbury
19