agency rule in Texas

2024“An agency rule is invalid if (1) the agency had no statutory authority to promulgate it; (2) it was not promulgated pursuant to proper procedure; or (3) it is unconstitutional.” Williams v. Texas State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.—Austin 2004, no pet.) (quoting Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 477 (Tex. App.—Austin 1994, writ denied), superseded by statute on other grounds as stated 17 in Lower Laguna Madre Found., Inc. v. Texas Nat.

2024“An agency rule is invalid if (1) the agency had no statutory authority to promulgate it; (2) it was not promulgated pursuant to proper procedure; or (3) it is unconstitutional.” Williams v. Texas State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.—Austin 2004, no pet.) (quoting Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 477 (Tex. App.—Austin 1994, writ. denied), superseded by statute on other grounds as stated in Lower Laguna Madre Found., Inc. v. Texas Nat.

2020See McCarty v. Texas Parks & Wildlife Dep’t, 919 S.W.2d 853, 854 (Tex. App.—Austin 1996, no writ).

2013See McCarty v. Texas Parks & Wildlife Dep’t, 919 S.W.2d 853, 854 (Tex. App.—Austin 1996, no writ).

2011Because an agency rule must be consistent with its statutory authority, should subsection 32.0248(h) be found to be unconstitutional, it would not serve as authority for HHSC to define the term "affiliate." See Gerst v. Oak Cliff Savs. & Loan Ass 'n, 432 S.W.2d 702, 706 (Tex. 1968) ("In exercising the powers and the broad authority granted by the Legislature, the only requirement is that [the agency's] rules and regulations must be consistent with the Constitution and Statutes of this State.").

2001“The determining factor” in deciding whether an agency rule is authorized by and consistent with the agency’s authority “is that the rule’s provisions must be in harmony with the general objectives of the Act involved.” Gerst v. Oak Cliff Sav. & Loan Ass ‘n, 432 S. W.2d 702,706 (Tex. 1968); Tex. Att’ y Gen.

2024See also Tex. Logos, L.P. v. Tex. Dep’t of Transp., 241 S.W.3d 105, 123-124 (Tex. App.—Austin 2007, no pet.).

2014Therefore, if invalidating an agency rule would not redress a plaintiff’s complained-of injury, then any opinion by the trial court or this Court regarding the validity of that rule “would amount to a mere abstract advisory opinion.” Id. at 123–24; see also Texas Music Library & Research Ctr. v. Texas Dep’t of Transp., No. 13-13-00600-CV, 2014 WL 3802992 , *9 (Tex. App.—Corpus Christi July 31, 2014, pet. filed) (mem. op.) (concluding that library’s claim that APA rule was invalid would not entitle library to receive government funds, and that therefore APA claim would not redress library’s all

2015Laws 469 , 548. 9 “The measure of the validity of an agency rule is whether it is constitutional and whether it conforms to the procedural and substantive statutes applicable to its adoption.” Texas Dep’t of Banking v. Restland Funeral Home, Inc., 847 S.W.2d 680, 683 (Tex.App.-Austin 1993, no writ).

2009“The measure of the validity of an agency rule is whether it is constitutional and whether it conforms to the procedural and substantive statutes applicable to its adoption.” Texas Dep’t of Banking v. Restland Funeral Home, Inc., 847 S.W.2d 680, 683 (Tex.App.-Austin 1993, no writ). 10 .

1999See Arco , 876 S.W.2d at 477 (citing Helle v. Hightower , 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied)).

1999See Arco , 876 S.W.2d at 477 (citing Helle v. Hightower , 735 S.W.2d 650, 654 (Tex. App.--Austin 1987, writ denied)).

1996Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679 , 685 (Tex. 1992); Railroad Comm'n v. Arco Oil Gas Co., 876 S.W.2d 473 , 481-82 (Tex.App.-Austin 1994, writ denied).

1996Roilrood Comm’n v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992); RoiIroodComm’n v. Arco Oil & Gas Co., 876 S.W.2d 473,481-82 (Tex. App-Austin 1994, writ denied).

2021See Texas Ass’n of Psychological Assocs. v. Texas State Bd. of Exam’rs of Psychologists, 439 S.W.3d 597, 603 (Tex.App.--Austin 2014, no pet.).

2014See Texas Ass’n of Psychological Assocs. v. Texas State Bd. of Exam’rs of Psychologists, 439 S.W.3d 597, 603 (Tex.App.-Austin 2014, no pet.).

2010Allowing plaintiffs to challenge the validity of an agency rule but barring in-junctive relief preventing application of the challenged rule would defeat the purpose of section 2001.038, which “is to obtain a final declaration of a rule’s validity before the rule is applied.” Rutherford Oil Corp. v. General Land Office, 776 S.W.2d 232, 235 (Tex.App.-Austin 1989, no writ).

2009Allowing plaintiffs to challenge the validity of an agency rule but barring injunctive relief preventing application of the challenged rule would defeat the purpose of section 2001.038, which "is to obtain a final declaration of a rule's validity before the rule is applied." Rutherford Oil Corp. v. General Land Office , 776 S.W.2d 232, 235 (Tex. App.--Austin 1989, no writ).

2004Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 207 (Tex. 2002).

2004Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex.2002).

2022See Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 720 (Tex. App.—Austin 2007, no pet.).

2016See Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 720 (Tex.App.—Austin 2009, no pet.).

2021Ass’n, 511 S.W.3d 28, 41 (Tex. 2017) (rejecting TMA’s challenge to an agency rule permitting therapists to provide diagnostic assessments as invading the practice of medicine). 52 TEX.

2021Ass’n, 511 S.W.3d 28, 33 (Tex. 2017) (internal citation omitted) (quoting R.R.

2004In contrast, in Texas Department of Human Services v. ARA Living Centers, 833 S.W.2d 689 (Tex.App.-Austin 1992, writ denied), the Third Court of Appeals had previously acknowledged that section 12 of the APTRA, now section 2001.038 of the APA, creates a cause of action to determine the validity or applicability of an agency rule: TDHS also argues that ARA’s suit to obtain declaratory relief is barred by the doctrine of governmental immunity.

2004In contrast, in Texas Department of Human Services v. ARA Living Centers, 833 S.W.2d 689 (Tex.App.-Austin 1992, writ denied), the Third Court of Appeals had previously acknowledged that section 12 of the APTRA, now section 2001.038 of the APA, *192 creates a cause of action to determine the validity or applicability of an agency rule: TDHS also argues that ARA's suit to obtain declaratory relief is barred by the doctrine of governmental immunity.

2024“An agency rule is invalid if (1) the agency had no statutory authority to promulgate it; (2) it was not promulgated pursuant to proper procedure; or (3) it is unconstitutional.” Williams v. Texas State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.—Austin 2004, no pet.) (quoting Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 477 (Tex. App.—Austin 1994, writ denied), superseded by statute on other grounds as stated 17 in Lower Laguna Madre Found., Inc. v. Texas Nat.

2024“An agency rule is invalid if (1) the agency had no statutory authority to promulgate it; (2) it was not promulgated pursuant to proper procedure; or (3) it is unconstitutional.” Williams v. Texas State Bd. of Orthotics & Prosthetics, 150 S.W.3d 563, 568 (Tex. App.—Austin 2004, no pet.) (quoting Railroad Comm’n v. ARCO Oil & Gas Co., 876 S.W.2d 473, 477 (Tex. App.—Austin 1994, writ. denied), superseded by statute on other grounds as stated in Lower Laguna Madre Found., Inc. v. Texas Nat.

2015Co. v. Boyce Iron Works, Inc., 726 S.W.2d 182, 187 (Tex.App.--Austin 1987) (holding that "neither the telephone company's representations asserted in the agency hearing nor its course of conduct were the producing cause of Boyce's actual damages" given the absence of "proof that any representation or any course of conduct by the telephone company influenced Boyce's purchase of the alarm company's protective services"), rev'd on other grounds, 747 S.W.2d 785 (Tex.1988); Taylor v. Burk, 722 S.W.2d 226, 229 (Tex.App.--Amarillo 1986, writ ref'd n.r.e.) (affirming the trial court's judgment notwith

1996Co. v. Boyce Iron Works, Inc., 726 S.W.2d 182, 187 (Tex.App.—Austin 1987) (holding that "neither the telephone company's representations asserted in the agency hearing nor its course of conduct were the producing cause of Boyce's actual damages" given the absence of "proof that any representation or any course of conduct by the telephone company influenced Boyce's purchase of the alarm company's protective services"), rev'd on other grounds, 747 S.W.2d 785 (Tex.1988); Taylor v. Burk, 722 S.W.2d 226, 229 (Tex.App.— Amarillo 1986, writ ref'd n.r.e.) (affirming the trial court's judgment notwiths

2015Co. v. Boyce Iron Works, Inc., 726 S.W.2d 182, 187 (Tex.App.--Austin 1987) (holding that "neither the telephone company's representations asserted in the agency hearing nor its course of conduct were the producing cause of Boyce's actual damages" given the absence of "proof that any representation or any course of conduct by the telephone company influenced Boyce's purchase of the alarm company's protective services"), rev'd on other grounds, 747 S.W.2d 785 (Tex.1988); Taylor v. Burk, 722 S.W.2d 226, 229 (Tex.App.--Amarillo 1986, writ ref'd n.r.e.) (affirming the trial court's judgment notwith

1996Co. v. Boyce Iron Works, Inc., 726 S.W.2d 182, 187 (Tex.App.—Austin 1987) (holding that "neither the telephone company's representations asserted in the agency hearing nor its course of conduct were the producing cause of Boyce's actual damages" given the absence of "proof that any representation or any course of conduct by the telephone company influenced Boyce's purchase of the alarm company's protective services"), rev'd on other grounds, 747 S.W.2d 785 (Tex.1988); Taylor v. Burk, 722 S.W.2d 226, 229 (Tex.App.— Amarillo 1986, writ ref'd n.r.e.) (affirming the trial court's judgment notwiths

2022Exam’rs, 351 S.W.3d 434 , 444–45 (Tex. App.—Austin 2011, pet. denied) (internal citations omitted); see Tex. Gov’t Code § 2001.145 (providing that “[a] timely motion for rehearing is a prerequisite to an appeal in a contested case”).

2014Examiners, 351 S.W.3d 434, 444-45 (Tex. App.— Austin 2011, pet. denied) (motion for rehearing is a statutory prerequisite to an appeal in a contested case and must be sufficiently definite to notify the agency of the error claimed so that the agency can either correct or prepare to defend the error); Fleetwood Cmty. Home v. Bost, 110 S.W.3d 635 , 641 fn.5, 643 (Tex. App.—Austin 2003, no pet.) (same).

1999See Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 756 (Tex. 1982).

1994Bullock , 628 S.W.2d at 757 .

2025Id. at 397 .

2015Agency, 725 S.W.2d 393, 397 (Tex. App.—Austin 1987, writ ref’d n.r.e.) (“Without these irreducible elements, we do not conceive that any assignment of error will apprise the agency of the error claimed so that it may correct the error or prepare against the contention that it is error.”).