By Jessica R. Alexander, Reference Librarian
Editing and Layout by James G. Durham, Publications and Reference Librarian

PREPARING TO PRACTICE BEFORE TEXAS ADMINISTRATIVE AGENCIES

Texas attorneys sometimes present cases to administrative agencies prior to advancing clients’ interests in court. A successful approach to this area of practice requires (1) knowledge of general principles of administrative law, (2) knowledge and research skills in Texas administrative procedure, statutes, and regulations, and (3) access to precedent-setting administrative decisions of the agency before which the attorney is practicing. Each of these requirements involves effective use of law libraries, the Internet, and online subscription databases when available.

STATUTORY LAW

Tex. Govt. Code Ann. §2001 et seq. (Vernon 1988), Texas Administrative Procedure Act

• Codified in 1993. The predecessor was Tex. Rev. Civ. Stat. Ann art. 6252-13a, which was passed initially in 1975.
• Purpose: (1) to provide minimum standards of uniform practice and procedure for state agencies, (2) to provide for public participation in the rulemaking process, and (3) to enunciate the law of judicial review for state agency actions.

Tex. Govt. Code Ann. §2003.001 et. seq. (Vernon 1988), State Office of Administrative Hearings

• Provides for State Office of Administrative Hearings, which conducts administrative hearings of contested cases in which an agency does not employ its own hearing officer. The Office also conducts alternative dispute proceedings. The State Office of Administrative Hearings website is located at http://www.soah.state.tx.us/.

Tex. Occ. Code Ann. §1.001 et. seq. (Vernon Supp. 2001)

• The Occupation Code is a new code that contains provisions for the licensing and performance parameters of individuals in various occupations including the health professions and accountancy, among others.

Research hint: Vernon’s Annotated Texas Codes is an appropriate starting point for research. Case summaries, which are located in the Notes of Decisions, are placed after each individual statutory section. Vernon’s editors add other features, such as references to West topics and key numbers, to Corpus Juris Secundum (a legal encyclopedia), and to law review articles. Complete Texas constitutional and statutory law are available online at http://www.capitol.state.tx.us/statutes/statutes.html. See also Model State Admin. Procedure Act 15 & 15A, U.L.A. (2000).

TEXAS ATTORNEY GENERAL OPINIONS

The Texas Attorney General Opinions are organized chronologically under the name of the attorney general issuing them. Opinions issued since 1939 have standardized numbering, with the initials of the attorney general preceding the number. A formal Texas Attorney General Opinion addresses issues that have statewide ramifications, while Letter Opinions regard local issues or issues that affect a particular group. The attorney general also issues Open Records Decisions which can be cited as precedent before that office and in other administrative and court proceedings.

All Attorney General Opinions issued since January 4, 1939 are online. All Attorney General Letter Opinions issued since January 21, 1953 are online. Also, all Open Records Decisions (ORDs) issued since July 20, 1973 are available online. (See Tex. Govt. Code Ann. §552.001 et seq., Public Information Act, formerly the Open Records Act.) Opinions are searchable by subject at the website of the Texas Attorney General at http://www.oag.state.tx.us/index.html.

The Fred Parks Law Library has the current Attorney General Opinions on reserve at the Patron Services Desk. Earlier Attorney General Opinions are in the main stacks at KFT1640.5 .A55 T4.

TEXAS REGISTER AND TEXAS ADMINISTRATIVE CODE

Texas state agencies are required by law to publish their proposed and adopted rules and regulations in the Texas Register. (See Tex. Govt. Code Ann. §2002.011, Texas Register Act.) The rules initially appear in the Texas Register and then are given a Texas Administrative Code citation. (See Texas Administrative Code Act, Tex. Govt. Code Ann. §2002.051.)

In the Texas Administrative Code, each agency is grouped with others in broad subject matter categories. Each category has a section number. At present, the code has sixteen titles, which are not consecutively numbered to allow room for expansion. The front of each title contains a list of the agency rules listed under the title. The current sixteen titles include:

The Texas Administrative Code is available in the main stacks and on reserve at the Patron Services Desk at KFT1235 .T42.

Many Texas state agencies have placed valuable materials on the Internet. These websites may be accessed through the webpages of The Fred Parks Law Library at http://www.stcl.edu/library/libhome.html (Click on "Legal Research Links - Texas.") or at the website of the State Bar of Texas - Administrative and Public Law Section at http://www.adminlaw.org/index.html.

ADMINISTRATIVE LAW JUDGES & ALJ OPINIONS

Administrative Law Judges (ALJs) decide contested cases regarding Texas administrative law. Publication of these decisions is not required by Texas law. The Texas State Library and Archives Commission maintains that ALJ decisions are similar to personal correspondence or personnel records. The decisions are available, however, by making a Texas Public Records Act request. Some agencies may choose to publish administrative decisions and, if so, these published opinions should be deposited with the Texas State Library.

In The Fred Parks Law Library, decisions of the Texas State Comptroller on sales tax disputes are available through the subscription database called CCH Tax Network. This database may be accessed through the library’s homepage at http://www.stcl.edu/library/libhome.html (Click on "Databases.").

BIBLIOGRAPHY: GENERAL PRINCIPLES OF ADMINISTRATIVE LAW

Treatises on administrative procedure provide a general overview that is applicable to more specific issues encountered on a state level:

Aman, Alfred C. and William T. Mayton. 2001. Administrative Law. St. Paul, Minn.: West Group. KF5402 .A8 2001

Davis, Kenneth Culp and Richard J. Pierce, Jr. 1994. Administrative Law Treatise. 3rd ed. Gaithersburg, Md.: Aspen. KF5402 .D381 1994

Gellhorn, Ernest and Ronald M. Levin. 1997. Administrative Law and Process in a Nutshell. 4th ed. St. Paul, Minn.: West Group. KF5402 .Z9 G4 1997

Koch, Charles H. 1997. Administrative Law and Practice. 2nd ed. St. Paul, Minn.: West Group. KF5402 .K6 1997

Office of the Attorney General, State of Texas. 1997. Administrative Law Handbook. Austin, Tex.: Office of the Attorney General, State of Texas KFT1640 .Z9 A36

Pierce, Richard J., et al. 1992. Administrative Law and Process. 2nd ed. Westbury, N.Y.: Foundation Press KF5402 .P5 1992

State Bar of Texas. 1996. Advanced Administrative Law Course. Austin, Tex.: State Bar of Texas KFT1640 .A75 S72 1996

Stein, Jacob A. et al. Administrative Law. (Available through Matthew Bender Authority on Demand database, which is linked to the library homepage at http://www.stcl.edu/library/libhome.html.)

BIBLIOGRAPHY: LAW REVIEW ARTICLES ABOUT ADMINISTRATIVE LAW

Articles similar to these may be located using one of our library’s online databases, such as LegalTrac, HeinOnline, Lexis, or Westlaw:

Aleshire, Bill. "The Texas Attorney General: Attorney or General? (Role with Respect to Defending State Agencies)." Review of Litigation, 20 (2000): 187-231.

Barber, James C. and Wes Volberding. "Procedural Requirements for Discrimination Suits Under the Texas Commission on Human Rights Act." Texas Bar Journal, 58 (1995): 318-322.

Garza, Aric J. "Resolving Public Policy Disputes in Texas Without Litigation: the Case for Use of Alternative Dispute Resolution by Government Entities (Effective Resolution of Disputes in the New Millennium: Perceptions, Myths, and the Law)." St. Mary’s Law Journal, 31 (2000): 987-1014.

Hart, Jeffrey L. and J. Bruce Bennett. "A Rejoinder and Defense of the Texas Open Meetings Act in Administrative Cases: Acker v. Texas Water Commission Revisited." Texas Bar Journal, 58 (1995): 22.

Hober, Allen. "Administrative Hearings: State Central Panels in the 1990s." Administrative Law Review, 46 (1994): 75-94.

O’Neal, Kristin Hay and Andrew Weber. "Procedural Problems Under the Texas Administrative Procedure Act When Seeking Judicial Review of Contested Case Decisions or Orders." Baylor Law Review, 48 (1996): 883-906.

Perkins, Carol J. "An Exception to the Rule of Judicial Deference to Academic Decisions." Journal of College and University Law, 25 (1998): 399-434.

Schenkkan, Pieter M. "When and How Should Texas Courts Review Agency Rules?" Baylor Law Review, 47 (1995): 989-1155.

Shannon, Brian D. "The Administrative Procedure and Texas Register Act and ADR: a New Twist for Administrative Procedure in Texas?" Baylor Law Review, 42 (1990): 705-736.

Shannon, Brian D. "Declaratory Judgments Under the Texas Administrative Procedure and Texas Register Act: an Underutilized Weapon." Baylor Law Review, 41 (1989): 601-628.

Taylor, Shelia Bailey. "The Growth and Development of a Centralized Administrative Hearings Process in Texas." Journal of the National Association of Administrative Law Judges, 17 (1997): 113-150.