Overview of Texas
Administrative Agencies
Administrative Policy Writing
Spring 2011
Administrative Policy Writing
Spring 2011
Foundations
The Texas Constitution created three branches (or
“departments”) of government:
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the executive department
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The legislative department
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The judicial department
Tex. Const. art. II, sec. 1.
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So where do state agencies come from?
Administrative Policy Writing
Spring 2011
Foundations
 Some agencies were created as part of the executive
department in the constitution. The state constitution
created seven executive department officials:
governor
lieutenant-governor
secretary of state
comptroller of public accounts
treasurer
commissioner of the General Land Office
attorney general
Tex. Const. art. IV, sec. 1.
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Administrative Policy Writing
Spring 2011
 However, the vast majority of state agencies were
created by statute. In other words, they began as a law
passed by the legislature.
 Some of these include the following:
 The Texas Commission on Environmental Quality
 The Texas Board of Nursing Examiners
 The Texas Education Agency
 The Department of Parks and Wildlife
 And so on …
Administrative Policy Writing
Spring 2011
Foundations
 For example, the Texas Commission on
Environmental Quality was created under Chapter 5
of the Texas Water Code:
 “The [TCEQ] is the agency of the state given primary
responsibility for implementing the constitution and
laws of this state relating to the conservation of
natural resources and the protection of the
environment.”
 Texas Water Code § 5.012.
Administrative Policy Writing
Spring 2011
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What do state agencies do?
State agencies are charged with implementing or executing
a law or some provision of the state constitution.
They do this mainly by adopting rules and enforcing those
rules. (Rules are sometimes called regulations.)
Put very simply: The legislature passes an act to regulate
some activity. The act will be very broad in specifying how
the activity is to be regulated.
The act will direct an agency of the state government to
execute the act by adopting and enforcing more specific
rules (and sometimes the act itself).
Administrative Policy Writing
Spring 2011
What do state agencies do?
 The act will give the agency the power to enforce those
rules through various legal actions:
 The power to issue permits or licenses (and power to revoke
them).
 The power to issue orders.
 The power to assess fines and penalties for violating the rules
and the underlying act.
 IMPORTANT: Because they are “creatures of statute,” state
agencies are limited in what they can do.
 They can’t simply adopt any rule they want.
 In order to understand why, we must go back to the Texas
Constitution.
Administrative Policy Writing
Spring 2011
The Power to Make Law
 The Texas Constitution says that the power to make
laws belongs to the legislature.
Tex. Const. art. II, sec. 1.
 What laws can the legislature pass?
 The Texas Supreme Court said:
 “The legislature may exercise any power not denied it
by the United States or Texas Constitutions.” Day Land
& Cattle Co. v. State (1887).
Administrative Policy Writing
Spring 2011
The Power to Make Law
 Any means any. As long as the law does not violate the U.S.
or Texas Constitution, it is within the legislature’s power.
 This is a vast power. Called the “police power.”
 Goes back to an older sense of the word “police.”
 It does not mean the police department or law enforcement,
but any laws that regulate conduct for the public welfare.
 Latin politia – civil administration, public order.
 Also, words like public policy related to police.
 Traditionally summarized as anything affecting the health,
safety, welfare, or morals of the people.
Administrative Policy Writing
Spring 2011
Sidenote
 The U.S. Congress does not have a general police power.
 Unlike the state governments, the federal government is one of
delegated or enumerated powers (i.e. numbered).
 Congress may pass laws pursuant only to its delegated authority
under Article I of the U.S. Constitution. This includes
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immigration
bankruptcy
copyrights
the money supply
interstate commerce
others …
 Federalism: power divided between states and federal
government. Different kinds of government at work.
Administrative Policy Writing
Spring 2011
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The Power to Make Law
State agencies also lack the “police power.”
Their ability to adopt and enforce rules is restricted to
the specific authority given to them by the legislature.
The TCEQ has been given the authority to adopt and
enforce environmental rules in Texas.
But it cannot attempt to regulate something else – like
the practice of medicine or workplace safety.
Administrative Policy Writing
Spring 2011
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“The Fourth Branch”
We have seen that state agencies are primarily
executive in nature (part of the executive department).
For example, they implement laws requiring certain
professions to have licenses and enforce those laws
through fines and license revocations.
However, state agencies exercise some “quasilegislative” and “quasi-judicial” powers.
Thus, they are sometimes called the fourth branch of
government, or the “three-headed monster.”
Administrative Policy Writing
Spring 2011
“The Fourth Branch”
 Legislative: state agencies adopt rules to implement the laws
they are charged with administering.
 Example: the Board of Nursing Examines has the authority to
decide by rule specific duties licensed nurses must perform.
 Executive: state agencies enforce their rules through legal action.
 Example: if the Board of Nursing Examiners thinks a nurse has
violated their rules, the Board may seek to revoke the nurse’s
license.
 Judicial: state agencies make the initial decision on enforcement
actions they take.
 Example: the Nursing Board both brings allegations that the nurse
violated their rules decides whether he or she did. (However, they
don’t get the final say. More on this later.)
Administrative Policy Writing
Spring 2011
“The Fourth Branch”
 The Texas Constitution says that the power to make laws
belongs to the legislature.
 If state agencies are part of the executive department, does
their ability to make regulations violate the separation of
powers?
 Courts say no.
 “Because a legislative body would be hard pressed to contend
with every detail involved in carrying out applicable laws,
delegation of some legislative power is both necessary and
proper.” Texas Workers' Compensation Com'n v. Patient
Advocates of Texas (2004).
Administrative Policy Writing
Spring 2011
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Institutional values
The word “bureaucracy” is typically used as a negative
label for state agencies.
People often accuse agencies of being slow, inefficient,
and even tyrannical.
Bad personal experiences?
Are state agencies unaccountable bureaucracies?
What are some of the criticisms?
Administrative Policy Writing
Spring 2011
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Institutional values
“Agencies are slow.” Fair criticism, but sometimes they have to
be.
Institutional value in the government: getting things right
valued over speed.
Often, the agency is charged with making difficult, life-changing
decisions.
For the following decisions, which is more important: making
the right decision or making a fast decision?
 CPS: Should we seek to terminate the rights of this parent and
remove the child from the home?
 TCEQ: Should we grant a permit to construct a chemical refinery at
this location?
 Medical Board: Should we revoke this doctor’s license?
Administrative Policy Writing
Spring 2011
Institutional values
 “Agencies are inefficient, bureaucratic, or inflexible.”
Fair criticism, but again it is often by design.
 Multiple layers of decision-making to ensure that the
rules are applied consistently.
 Also, an institutional value of the government is equal
treatment under the law. An instinct against making
an exception for you – even if you have unusual or
special circumstances.
Administrative Policy Writing
Spring 2011
Institutional Values
 Institutional Values:
 A right decision more important than a fast
decision.
 Equal treatment.
 However, sometimes the situation calls for the
contrary value. The government has trouble with this.
 Sometimes, a job needs to be done quickly and without
haggling over minor issues.
 Sometimes, there is an exceptional case that should be
treated differently.
Administrative Policy Writing
Spring 2011
Other Criticisms
 Agencies of the government struggle with customer
service when they are charged with providing some
service to the public (as opposed to policing).
 Getting your driver’s license renewed.
 Dealing with the post office.
 Reasons? (Lot’s of debate.)
 Chronically under-funded?
 Don’t have to compete in the marketplace? No incentive
to provide good service if you cannot shop elsewhere.
Administrative Policy Writing
Spring 2011
Other Criticisms
 Agencies make bad decisions or are beholden to one or
another interest group.
 Reasons? (Again, lots of debate.)
 Welcome to politics!
 Agency capture?
Administrative Policy Writing
Spring 2011
Agency Capture
 Agency capture is a term used to describe the process
by which agencies are “captured” or influenced by the
very entities or individuals they are supposed to police.
 Aka “Getting cozy with industry.”
 Symptoms:
 Referring to the regulated entity as a “customer.”
 Weak rules. Lax enforcement.
 Why does it happen?
Administrative Policy Writing
Spring 2011
Agency Capture
 Revolving door: People with expertise in a field are
usually the leaders in the field. Those people are
needed to run the agency. Thus, a revolving door of
industry leaders and agency leaders.
 Politics: Because of conflicting interests, money, and
lobbying, legislation is often passed only after it has
been amended so much that it embraces multiple,
conflicting goals.
Administrative Policy Writing
Spring 2011
Agency Capture
 Real life example:
 In 2009, the Federal Aviation Administration (FAA) was
criticized for being too cozy with industry after it was
discovered that the agency failed to take action against
Southwest Airlines for a long list of safety violations.
 The FAA is mandated by Congress to perform two
conflicting goals: regulate the airline industry and promote
the airline industry.
 By the way, the FAA was referring to the airlines as its
“customers.”
Administrative Policy Writing
Spring 2011
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Checks on State Agency Power
We don’t like unaccountable government.
This applies to state agencies, especially since their
operation is largely removed from the voters.
We don’t elect most heads of state agencies.
So how do we ensure that they are acting in accordance
with the will of the people and with the law?
Administrative Policy Writing
Spring 2011
Checks on State Agency Power
 Their executive powers are checked in several ways:
 Some executive department officers are elected directly by the
people:
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Ex: attorney general, land commissioner, Board of Education
members.
Contrast with the federal system in which all executive offices are
appointed by the president.
 The appointed heads of state agencies are appointed by the
governor for a fixed term of office with the consent of the
Texas Senate.
 Agencies are subject to periodic sunset review in which the
legislature considers whether the agency is continuing to
serve the interests of the state or should be abolished.
Administrative Policy Writing
Spring 2011
Checks on State Agency Power
 Their quasi-legislative power is checked in several
ways:
 The legislature itself determines the scope of an agency’s
powers in the enabling statute.
 The courts decide whether an agency’s rule is outside of
its delegated authority and whether it is contrary to the
Texas or U.S. Constitutions.
 Rule-making must allow for public participation under
the Texas Administrative Procedure Act. (More on that
later.)
Administrative Policy Writing
Spring 2011
Checks on State Agency Power
 Their quasi-judicial power is checked by the courts.
 State courts review agency enforcement decisions to
determine whether the agency
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acted within the scope of its authority
made rational decisions based on evidence
and whether it violated individual rights
 (Ex: a nurse whose license has been revoked by the
Nursing Board can seek judicial review of the Board’s
decision in state court: called a suit for judicial
review).
Administrative Policy Writing
Spring 2011
The Plural Executive
 In the federal system, cabinet secretaries and other agency
heads are appointed and serve at the pleasure of the
president.
 In Texas, many of the officials of the executive department
are elected individually. The governor cannot fire or replace
them with individuals who support his or her views. They
may even be in different parties.
 Thus, our state government has a “plural executive” in
which the executive power is in the hands of several
individuals, not the governor alone.
Administrative Policy Writing
Spring 2011
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The Plural Executive
The weak office of governor in Texas also impacts state
agencies created by law.
First, while the governor can appoint heads of agencies as
the positions become unfilled, the governor cannot fire
them at will.
Second, most state agencies are headed by a group of
several commissioners who serve under staggered terms
(although some have only one).
Thus, the governor has less direct control over the policies
and priorities of state agencies than the president has over
cabinet-level agencies.
Administrative Policy Writing
Spring 2011
Why do we need state agencies?
 The need for administrative agencies to execute the
law arises from the complexity of modern industrial
society.
 State agencies are needed to regulate industries and
practices that require specialized knowledge.
 the practice of medicine or engineering
 the storage and disposal of hazardous waste
 the determination of how much sulfur dioxide can be
emitted into the atmosphere by a chemical plant
Administrative Policy Writing
Spring 2011
Why do we need state agencies?
 State legislators cannot become experts in all of these
fields at once. So they defer to the technical expertise
of agencies.
 Plus, the Texas Legislature meets once every two years,
making it more difficult to keep up with the
developments in regulated industries.
Administrative Policy Writing
Spring 2011
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Rules
We saw earlier that agencies execute the law by enforcing
statutes and their own rules.
Thus, an important part of administrative policy writing is
rule-making.
We call them “rules” or “regulations” to contrast them with
statutes.
The legislature creates statutes which become law after
being signed by the governor.
State agencies create rules which become law after the
process of rule-making.
Administrative Policy Writing
Spring 2011
Rules
 Important note: both statutes and rules are the law!
 In common usage, “law” means an act of the legislature. That is
probably why the authors of your book say that rules are not
laws. But they are wrong.
 The “law” is much broader. It includes …
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statutes
agency rules
constitutions
common law
treaties
 The Texas Supreme Court has stated very clearly: valid agency
rules have the force of law. Lewis v. Jacksonville Building and
Loan Association (1976).
Administrative Policy Writing
Spring 2011
Rules
 So a point of terminology to keep in mind:
 Agencies adopt rules.
 Legislatures pass statutes.
 Both constitute the law.
Administrative Policy Writing
Spring 2011
The Process of Rulemaking
 When a state agency wants to adopt or amend a rule, it
must comply with the procedure spelled out in the
Texas Administrative Procedure Act or “APA.”
 We are not going to learn about the intricacies of the
APA, but only some basic concepts.
Administrative Policy Writing
Spring 2011
The Process of Rulemaking
 Two of the purposes of the APA:
 provide for public participation in the rulemaking process.
 ensure uniform practice and procedure for state agencies.
Tex. Gov’t Code § 2001.001.
 Concern for public participation because most heads of state
agencies are not directly elected by the people.
 Public participation expresses democratic values: keep the
agencies accountable to the people.
 The agency must request public comments on a proposed rule
and consider all public comments before adopting the rule.
 Agencies must also deliver copies of proposed rules to the
lieutenant governor and speaker of the house.
Administrative Policy Writing
Spring 2011
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The Texas Register
The process begins by publishing the proposed rule in the Texas
Register.
The Texas Register is an official publication of the state that is
maintained by the secretary of state.
Available online: http://www.sos.state.tx.us/texreg
The Texas Register contains various public notices
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proposed agency rules
adopted rules
withdrawn rules
open meeting notices
executive orders and appointments
and other information of general interest to the public
Administrative Policy Writing
Spring 2011
Contents of a proposed rule
 The APA specifies a number of substantive requirements
for proposed rules.
 A proposed rule must include
 a brief explanation of the rule
 the text of the proposed rule
 a statement of the statutory authority for the proposed rule
 a fiscal note on how much the rule will cost the government
 a note about public benefits and costs for the rule
 a request for comments on the rule
 others …
Authority to
adopt the rule
Summary
Text of the
proposed rule
Fiscal Note
Adoption date
Public
benefits
and costs
Request for
comments
Administrative Policy Writing
Spring 2011
Public Comment Period
 After a proposed rule is published, the state agency
must accept public comments for 30 days and consider
the comments it receives.
 The state agency must hold a public hearing on the
rule if requested by another governmental body or by
25 or more persons.
Administrative Policy Writing
Spring 2011
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Adoption or Withdraw
After the public comment period, the agency may choose to
withdraw the rule or adopt it through an “order.”
The order adopting a rule must also appear in the Texas
Register.
The adopted rule must contain a “preamble.”
The preamble provides a justification for the rule and the
agency’s response to the comments it received.
And a statement of the agency’s authority to adopt the rule.
No comments
Administrative Policy Writing
Spring 2011
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The Texas Administrative Code
After a rule is adopted, it is codified in the Texas
Administrative Code.
The Administrative Code is a is a compilation of all
state agency rules in Texas.
It is also maintained by the secretary of state.
Available online: http://www.sos.state.tx.us/tac/
Administrative Policy Writing
Spring 2011
Administrative Policy Writing
Spring 2011
Texas Administrative Code
 The TAC is organized into titles, chapters,
subchapters, and sections.
 We will cover its organization in more detail when we
discuss citing agency rules.
 Individual rules are written in the form of statutes:
 divided into sections and subsections
 place duties upon individuals or regulate activities
 usually begin with a section of definitions
 written to be unambiguous (hopefully!)
Administrative Policy Writing
Spring 2011
PART II
A Closer Look at Agency Rules and the Enabling
Statute
The Texas Midwifery Board
Administrative Policy Writing
Spring 2011
Example from the Midwifery Board
 First thing to notice about the rule is its
context:
 We are in Chapter 831 of Title 22, which contains the
rules of the Midwifery Board
 Then the particular rule is section 65. The
convention of the TAC is to put the section
number as decimal places after the chapter.
 So here it is 831.65
Administrative Policy Writing
Spring 2011
Example from the Midwifery Board
 Next, notice how the section is divided into
subsections: (a), (b), (c), and so on. Each of these
subsections imposes some duty or prescribes some
restriction.
 Notice how some of the subsections are further
divided – typically when items in a list are separated.
Administrative Policy Writing
Spring 2011
Example from the Midwifery Board
 By the section title, you can tell we are looking at a rule concerning the
labor and delivery practices required of midwives.
 Look at subsection (a)
 Note the language of obligation: “The midwife shall …” The convention
for creating a legal obligation is the word “shall” or “must.”
 When reading a rule, you should first consider whether there are any
defined terms. Writers will typically define words in a more narrow or
technical sense than they are used in everyday life.
 Is the word “midwife” defined in the rules? Look at section 831.2(12).
What does it say?
Administrative Policy Writing
Spring 2011
Example from the Midwifery Board
 Who is a midwife?
 Practices midwifery under the Act and
 Has met the requirements and standards of the Board
 Notice how the rule uses the term “midwife” in a more restricted
sense than everyday speech.
 What is midwifery?
 The practice of
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supervision/care/advice
conducting normal delivery
providing newborn care
Administrative Policy Writing
Spring 2011
Example from the Midwifery Board
 Do you think a husband who helps deliver a child on
the way to the hospital is regulated as a midwife under
subsection (a)?
 Does he meet the definition of a “midwife?”
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Does he practice midwifery under the Texas Midwifery Act?
Is he someone who has met the requirements of the Board?
Administrative Policy Writing
Spring 2011
Example from the Midwifery Board
 Look at subsection (d) for an example of a requirement with
multiple sub-parts:
 Notice the use of the word “or” meaning a midwife cannot do (1)
or (2) or (3) or any combination of them.
 Rules writers must make careful use of “or” and “and.”
 Notice how subsections and subparts alternate between letters
(a) and numbers (1).
Administrative Policy Writing
Spring 2011
Example from the Midwifery Board
 Let’s take a look at the “enabling statute” for the
Midwifery Board
 The statute that created the board and …
 Provided the delegation of legislative authority for the
Board to adopt rules.
 Texas Occupations Code Chapter 203.
Administrative Policy Writing
Spring 2011
The Texas Midwifery Act
Administrative Policy Writing
Spring 2011
The Texas Midwifery Act
 Near the beginning, there is typically some statement of
purpose for the Act or legislative findings declaring the
Legislature’s intent in passing the statute.
Administrative Policy Writing
Spring 2011
The Texas Midwifery Act
 Like the Board Rules, the enabling Act will typically
include a section of definitions.
 The Act will also specify requirements for the Board:
 who can become a board member
 how they are appointed
 how they can be removed, and so on.
 The Act will define the board’s powers, including
authority to adopt rules.
Administrative Policy Writing
Spring 2011
Texas Midwifery Act
 Notice the sunset review for the Board.
Administrative Policy Writing
Spring 2011
Texas Midwifery Act
 If the rule on providing emergency care were ambiguous, it is
important to be familiar with the enabling statute as well.
 The provision below makes it clear that the legislature did not intend
the Board to regulate a dad who delivers a baby on the way to this
hospital.
Administrative Policy Writing
Spring 2011
Texas Midwifery Act
 In licensing statutes, such as this one, there is typically a provision
which creates a basic prohibition on practicing in the field without a
license from the Board.
Administrative Policy Writing
Spring 2011
 Questions?
 Comments?