Court to review the case, but the Court is not obligated to hear the case.

The TSBPME Rule: 22 TAC §375.1(2), a rule adopted by the Texas State Board of Podiatric Medical Examiners in 2001:

Foot - The foot is the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.

TOA Attorney Susan Henricks, Hull Henricks & MacRae, LLP has given us the current status of Texas Orthopaedic Association, Texas Medical Association and Andrew M. Kant, MD, Plaintiffs v. Texas State Board of Podiatric Medical Examiners, Defendant

This rule has been reviewed by AG Cornyn's Opinion Committee, a group of lawyers who focus on reviewing state statutes and agency actions, as well as two Third Court of Appeals justices, all of whom agree that the rule is invalid. Only a single district judge has yet found it to be within the agency's authority and the Third Court of Appeals reversed that opinion.

The latest authority on this issue is the Court of Appeals decision. It is extremely likely that this will be the final decision although the TPMA has Petitioned for Review. The Supreme Court's review is discretionary in this case and it has not been established that there is the "right of appeal." As of this date, the Supreme Court has not agreed to review this decision. A very small percentage of the Petitions for Review filed with the Supreme Court are accepted… approximately 11%.

Even if the Petition is granted, that does not mean the outcome will change. We expect a decision on the Petitions for Review at any time.

We have provided links to the Texas Attorney General's Opinion, the Third Court of Appeals Decision's Final Declaratory Judgment.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING

FINAL DECLARATORY JUDGMENT
Texas Orthopaedic Association, Texas Medical Asociation
and Andrew M. Kant, M.D. Plaintiffs
v.
Texas State Board of Podiatric Medical Examiners, Defendant

On this 15th day of August, 2005, came on to be considered for trial on the merits, the above-styled and numbered cause, all parties appeared in person or by designated representative by and through their attorney of record, announced ready and agreed to waive submission to a jury. The Court, having taken judicial notice of certain legislative and adjudication fact, and considered the evidence and the argument of counsel, finds and declares that 22 TAC §375.1(2), a rule adopted by the Defendant Texas State Board of Podiatric Medical Examiners, which provides as follows:

Foot - The foot is the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.

is invalid and unenforceable and that the lawful practice of podiatry in Texas is limited to treatment of the human foot, and does not extend to the bones of the ankle or other anatomical structures.

IT IS THEREORE ORDERED, ADJUDGED AND DECREED that 22 TAC §375.1(2), a rule adopted by the Defendant Texas State Board of Podiatric Medical Examiners, which provides as follows:

Foot - The foot is the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.

is invalid and unenforceable.

IT IS FURTHER DECLARED that the lawful practice of podiatry in Texas is limited to treatment of the human foot, and does not extend to the bones of the ankle, including the tibia and fibula in their articulation with the talus, or other anatomical structures.
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