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Update on TMA v TBCE

March 11, 2010                                             Bulletin 2010- No. 02


This Legal News Bulletin is a follow up (or continuation) to Bulletin 2010-No.01 dated January 15, 2010.    


In 2006 the Texas Medical Association (TMA) filed a lawsuit against the Texas Board of Chiropractic Examiners (Board) challenging the invalidity of the Board’s rules that specifically permit chiropractors to perform needle electromyography (EMG) and appear to allow chiropractors to perform spinal manipulation under anesthesia (MUA). TMA alleged that the MUA rule, by purporting to maintain a "status quo" in which chiropractors were being permitted to perform MUA, conflicted with the legislature's explicit exclusion of "surgical procedures," from the scope of chiropractic practice.  TMA argued that both procedures “constitute the clinical and legal practice of medicine” and that “[b]oth procedures can cause serious injuries to patients if they are not performed by properly trained physicians.”  TMA sought a declaratory judgment that the Board’s scope of practice rules exceeded the Board’s authority and were invalid.  TMA also sought a permanent injunction enjoining the scope of practice rules.


TMA joined the Texas Medical Board to the declaratory judgment lawsuit. The Texas Board of Chiropractic Examiners filed a plea to the jurisdiction contending that the TMA lacked standing and that "the issues relating to manipulation under anesthesia" were not ripe. The district court denied the plea, and the Board appealed to the Austin Court of Appeals.


The Court of Appeals noted the longstanding principle that "[a]n administrative body cannot, by reserving for itself the power to change a ruling, deprive the courts of jurisdiction to the detriment of the parties injured by the ruling." citing to Glen Oaks Utils., Inc. v. City of Houston, 340 S.W.2d 783, 786 (Tex. 1960). The Board of Chiropractic Examiner’s position “is essentially that ‘no party or court has the authority to challenge what it has done’ in its rule ‘so long as [the board] says that it is still studying the issue’ and might later change the rule.” The Court rejected that position.

The Board of Chiropractic Examiners also claimed that the Legislature vested in the Board the "exclusive jurisdiction" to define the scope of practice of chiropractic. The Court rejected this claim also and affirmed the district court's order denying the Board’s plea to the jurisdiction. 



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