Administrative Agencies and
Government Writing
Administrative Policy Writing
Spring 2012
Administrative Policy Writing
Spring 2012
Introduction
 One of the major topics for this class is how public policy is
administered through written documents.
 To understand how public policy is written, you need to
understand how it works. So we are going to spend the next two
weeks looking at how administrative agencies function.
 The question we will answer:
 How do administrative agencies and regulations fit into our system
of government and what kind of documents do they produce?
 We are going to cover a lot of material in the next two weeks.
 This week is about getting a sense of the “big picture.” Use this
presentation and notes to help on the quiz.
Administrative Policy Writing
Spring 2012
Introduction
 To answer this question, we will look at the following:
 What are state agencies, and how do they fit into our
system of government?
 How do state agencies create and execute the public
policy of this state?
 How do you find and read agency regulations?
Administrative Policy Writing
Spring 2012
Introduction
 The legislature and state agencies make public policy in
Texas through statutes and regulations.
 However, most of the work is done by state agencies.
 Agencies publish a great deal of informational documents on
the web and in print.
 Agency regulations outnumber statutes pass by the
legislature.
 State agencies implement the law year-round. The legislature
is in session once every two years.
 Public policy writers frequently deal with both statutes and
regulations. But we are going to focus on regulations in this
class.
Administrative Policy Writing
Spring 2012
Overview
 We will divide our discussion into five topics:
 The powers of state agencies
 The process of rule-making and the Administrative
Procedure Act
 Texas Register
 Texas Administrative Code
 Enabling Acts
Administrative Policy Writing
Spring 2012




Writing in the Context of Federalism
First, let’s start with the fundamentals.
The United States has a somewhat unusual form of government by
world standards.
Instead of just one national government, we have many separate and
independent governments that together make up the United States.
Under the U.S. Constitution, we split up the powers of government
between:
 The national (federal) government and
 The state governments
 Each one operates independently, has it own laws, its own procedures,
and powers.
 Contrast our system with a country like the Republic of France.
Administrative Policy Writing
Spring 2012
Writing in the Context of Federalism
 Like the United States, the Republic of France is made
up of many regions: Brittany, Burgundy, Lorraine, etc.
Administrative Policy Writing
Spring 2012
Writing in the Context of Federalism
 But these administrative regions are not equivalent to
the states that make up the United States.
Administrative Policy Writing
Spring 2012
Writing in the Context of Federalism
 Each U.S. state is an independent government.





It can pass and enforce its own laws
Elect its own representatives
Pursue its own policy goals
And operate under its own constitution
So long as it is consistent with the U.S. constitution
 The French province of Brittany, for example, is a just a
subdivision of the national government.
 It exists to implement the policies of the national government.
 This is a significant difference.
 Our system of dividing the powers of government between the
states and the national government is called federalism.
Administrative Policy Writing
Spring 2012
Writing in the Context of Federalism
 Why do you need to understand federalism for administrative
policy writing?
 Understand the context in which you write!
 A federal system means dual systems for many government
functions:






State laws; federal laws.
State courts; federal courts.
State regulations; federal regulations.
State policies; federal policies
State representatives; federal representatives
State law enforcement officials; federal law enforcement officials
 But some functions exist in only one government.
State constitution
National constitution
Law enforcement
Regulatory
agencies and
courts
Schools and
indigent care
Foreign
relations and
immigration
Administrative Policy Writing
Spring 2012
Writing in the Context of Federalism
 Any given activity or industry may be subject to both state and federal
regulations (not to mention local ordinances).
 Policy writers should understand this. Don’t assume that there is only
one set of rules applicable to a situation.
 Also, writing in a federalist system forces us to be specific. This is a
point of plain language:
 Be careful about using the word government generically: “government
regulations,” the “government” taking some action, or argue that
something is or isn’t the “government’s responsibility.”
 In a federalist system, that is imprecise and confusing. Specify which
government.
 Also, if you are making policy arguments, this framework should
inform your understanding of the basic roles of federal, state, and local
governments. They each have a part to play in our system and are not
interchangeable.
Administrative Policy Writing
Spring 2012
 Even though there are both state and federal agencies, we are going to
focus on documents produced by the state government.
Administrative Policy Writing
Spring 2012
Foundations
What are state agencies and where do they come from?
To answer that, let’s go back to the state constitution.
The Texas Constitution created three branches (or
“departments”) of government:



the Executive Department

The Legislative Department

The Judicial Department
Tex. Const. art. II, sec. 1.


Ok. I just see three entities here. Where are all the
agencies we just talked about?
Administrative Policy Writing
Spring 2012
Foundations
 Some agencies were created as part of the executive branch
or elsewhere in the state constitution. For example:




State Board of Education
Secretary of State
Attorney General
Comptroller of Public Accounts
 However, the vast majority of state agencies were created
by statute.
 In other words, they began as a law passed by the
legislature.
Administrative Policy Writing
Spring 2012
Foundations
 An example:
 The Texas Parks and Wildlife Department is a state agency.
 The legislature created this agency by a passing a law, which
provides:
 That’s it. A state agency is born!
Administrative Policy Writing
Spring 2012

Administrative Policy Writing
Spring 2012
What do state agencies do?
 Second basic question: What do state agencies do?
 State agencies are primarily charged with
implementing or executing a law passed by the
legislature.
 There are three primary ways that agencies execute or
implement the law:
 Adopting and enforcing rules (sometimes called
regulations) or other laws
 Providing the public information
 Administering public services and benefits
Administrative Policy Writing
Spring 2012
What do state agencies do?
 State agencies administer government-funded services. This
means distributing the services to actual people:
 Temporary Assistance for Needy Families (TANF)
 Children's Health Insurance Program (CHIP)
 Medicaid
 public education
 State agencies communicate or explain the law to the public by
publishing instructional forms and handbooks:
 These are sometimes called guidance documents.
 We saw an example of this in the first week: the document on
selling yard eggs at a farmer’s market.
 We will talk about guidance documents later in the semester.
An example of the
communication
function of state
agencies:
information on
TANF published
online by the
Texas Health and
Human Services
Commission
An example of the administrative function of state agencies: a
web-based application for the CHIP program, administered by
the Texas Health and Human Services Commission.
Administrative Policy Writing
Spring 2012
What do state agencies do?
 Today we are focusing on how agencies execute the law
through regulation.
 The typical scenario:
 The legislature passes a statute to regulate some activity (for
example, the practice of nursing)
 The statute is typically very broad in specifying how the
activity is to be regulated (because legislators don’t know
much about the details on proper nursing)
 The statute will direct an agency of the state government to
adopt more detailed regulations to implement the law
(probably a board of health-care professionals)
Administrative Policy Writing
Spring 2012
What do state agencies do?
 The statute will give the agency powers to enforce
those regulations 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
regulations and the underlying law.
 Thus, the Texas Nursing Board has the power to issue a
license to practice in the field and can penalize those
who fail to maintain the Board’s standards.
An example of rules
published by the
Texas Board of
Nursing
An example of an order
issued by the Texas
Board of Nursing. This
order revokes the
license of a particular
nurse.
Administrative Policy Writing
Spring 2012




What do state agencies do?
If you work in a regulated profession (like medicine,
engineering, architecture, etc.), you are probably
familiar with the idea of licenses and rules.
But what about the rest of us?
There’s one license issued by a state agency that most
adults have.
Can anyone guess?
Administrative Policy Writing
Spring 2012
What do state agencies do?
The activity of driving a vehicle is
regulated by the Department of
Public Safety. You cannot engage
in this activity without a license.
Administrative Policy Writing
Spring 2012





What do state agencies do?
Because agencies adopt rules, they have some “quasilegislative” powers.
In other words, they act somewhat like a legislative body.
But state agencies are limited in what they can regulate.
They can’t simply adopt any rule they want.
They can regulate only those matters that the legislature
has allowed.
Thus, agencies make policy under a delegation of
authority from the legislature.
Administrative Policy Writing
Spring 2012
What do state agencies do?
 Think about it this way:
 the legislature is the boss. State agencies must do what
the boss says and implement the boss’ wishes.
 And they have only those tools that the boss has given
them.
 It is important to understand the difference between
this policy-making power of state agencies and the
greater powers of the Texas Legislature.
 So let’s compare agencies to the legislature.
Administrative Policy Writing
Spring 2012
The Police Power
 The Texas Constitution says that the power to make laws
belongs to the legislature.
Tex. Const. art. II, sec. 1.
 So what laws can the legislature pass?
 The Texas Supreme Court has said:
 “The legislative department of a state government may make
any law not prohibited by the Constitution of this state or
that of the United States.” Shepherd v. San Jacinto Junior
College Dist. (1962).
 Any means any. As long as the law does not violate the U.S.
or Texas Constitution, it is within the state legislature’s
power.
Administrative Policy Writing
Spring 2012
The Police Power
 This is a vast power called the police power.
 This is an old term that has fallen out of everyday usage.
 But it is still used by government writers. Thus, you should
know it.
 It doesn’t mean what it sounds like.
 It is not a reference to the police department, but any laws
that regulate conduct for the public welfare.
 You can see how words like public policy are related to police.
 Traditionally summarized as anything affecting the health,
safety, welfare, or morals of the people.
Administrative Policy Writing
Spring 2012
See how this term
“internal police” was
used in a compilation
of laws from the State
of Michigan in 1838.
“Police” includes
support of the poor,
regulation of taverns,
banking, stray
animals, and so on.
Anything that has to
do with public welfare
or the maintenance of
a civilized society.
Administrative Policy Writing
Spring 2012
The Police Power
 In contrast, state agencies lack the police power.
 Their ability to adopt regulations or take any other action is
restricted to the specific authority the legislature gives them.
 Example:
 The Texas Commission on Environmental Quality has been given
the authority to adopt and enforce environmental regulations in
Texas.
 But it cannot attempt to regulate something else like workplace
safety.
 And it can enforce environmental regulations with only the
procedures and penalties the legislature has made available.
Administrative Policy Writing
Spring 2012
The Police Power
 The federal government also lacks the police power.
 Under the U.S. Constitution, Congress has certain enumerated powers.
These include (among others)





Coining money
Regulating immigration
Regulating interstate commerce
Raising an army and navy
Regulating copyrights and patents
 You can see how these are matters of national concern.
 Although the powers of the U.S. government are limited and defined,
federal laws are supreme over any other state or local law.
 Again, our system of federalism is unusual. Most national
governments are not limited in this way.
Administrative Policy Writing
Spring 2012
The Power to Make Law
 Policy writers should understand that we have two different kinds of
government:
 State governments have the police power: an open-ended power to
pass any laws needed for the public welfare.
 The federal government is one of limited powers. It can pass laws
only within the areas specified by the U.S. Constitution, but those laws
are supreme throughout the country.
 Thus, a state legislature has the power to create an agency like the
Texas Education Agency pursuant to its police power.
 Congress has the power to create an agency like the Federal Aviation
Administration (FAA) pursuant to one of its enumerated powers (the
power to regulate interstate commerce).
Administrative Policy Writing
Spring 2012




The Power to Make Law
Important note: both statutes and agency rules are the law.
In common usage, a law means an act of the legislature.
But policy writers use the term in a much broader sense.
There are many sources of law:





statutes
agency rules
constitutions
common law
treaties and international law
 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 2012
The Power to Make Law
 So a point of terminology to keep in mind:
 Agencies adopt regulations.
 Legislatures pass statutes.




Both constitute the law.
This semester, we will practice using this terminology.
Part of policy-writing is learning the language.
By using specific terms like “adopt,” you show your
audience that you know the accepted terminology and
enhance your credibility as a writer.
Administrative Policy Writing
Spring 2012
Checks on State Agency Power
 The idea of checks and balances applies to state
agencies, especially since their operation is largely
removed from the voters.
 Voters do not approve agency regulations.
 Voters do not elect most agency heads.
 So how do we ensure that the rules they adopt are fair
and in accordance with the public interest?
Administrative Policy Writing
Spring 2012
Checks on State Agency Power
 In Texas, the heads of some agencies are elected directly by the people:
 Members of the State Board of Education
 Commissioner of the General Land Office
 Others …
 Agencies are also subject to Sunset Review, which provides that the




agency will be abolished by a certain date unless re-authorized by the
legislature.
Plus, the legislature can simply create new agencies or abolish agencies
that were previously created by law.
And of course, the legislature also controls their funding.
Thus, agencies are accountable to the legislature.
A phone call from an unhappy lawmaker can cause panic at a state
agency. Do you see why?
Administrative Policy Writing
Spring 2012
Checks on State Agency Power
 In addition to these, there is one important check on the
activities of state agencies that we will cover in some detail.
 When a state agency wants to adopt a rule, it must allow for
public participation under a statute called the Texas
Administrative Procedure Act.
 Interested members of the public have the right to submit
written comments on a proposed rule before it is adopted.
 And the agency must consider the comments it receives.
Administrative Policy Writing
Spring 2012
Checks on State Agency Power
 But the people do not actually vote on the proposed rule.
 Commenting isn’t the same as voting. The agency can disagree
with comments it receives against the proposed rule.
 Would it be more democratic to vote on all regulations? What do
you think?
 Is it feasible? In Sept. 2011, there were 457 pages of proposed rules
or proposed amendments to existing rules for state agencies in
Texas.
 And by “pages” I mean two columns of tiny print.
 Let’s assume that is typical. 457 x 12 months = 5,484 pages of
regulations that voters would have to consider every year.
 To make matters worse, most people would not have any interest in
the vast majority of these rules.
Administrative Policy Writing
Spring 2012
Checks on State Agency Power
 A sample of recent proposed rules:
Would most people
care about this rule?
Should voters have
to decide whether
this rule is adopted?
Administrative Policy Writing
Spring 2012
The Texas Medical
Board proposed a rule
to cease accepting
anonymous
complaints about
doctors. Is this a
significant policy
change?
Administrative Policy Writing
Spring 2012






Checks on State Agency Power
This is your government in operation! You have the right to
comment and perhaps influence this process. And members of
industries, individuals active in public-policy, and regulated
professions do comment.
Agency rule-making can have a significant impact on business and
individuals, particularly if you are in a regulated profession.
We will learn more about the process of rule-making and public
comments next week.
I want to close today by thinking more about living in a society that
depends heavily on administrative agencies.
When we think about our government, I think people typically have a
School House Rock image in their head: popular elections and three
branches of government.
Yes, those are the foundations, but the reality of public administration
is far more complex and tedious.
Administrative Policy Writing
Spring 2012
Why do we need state agencies?
 Why can’t we just have a simple, democratic society where the voters
control everything?
 The need for administrative agencies to execute the law arises from the
complexity of modern industrial society.
 State agencies developed to regulate industries and practices that
require specialized knowledge.
 the practice of medicine or engineering.
 the storage and disposal of hazardous waste: what types of waste have
to be stored in what types of containers?
 the decision on how much sulfur dioxide can be emitted into the
atmosphere by a chemical plant before it begins having an adverse
effect on human health.
 These are complex issues a typical state representative is not well-
equipped to decide on their own.
Administrative Policy Writing
Spring 2012




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 and their staff.
Plus, the Texas Legislature meets once every two years,
making it more difficult to keep up with the developments
in regulated industries.
There is simply not enough time for the legislature to
consider all of the regulatory matters handled by state
agencies in its short session.
As a result, we have a system of government at both the
state and federal level that relies heavily on administrative
agencies to implement public policy.
Administrative Policy Writing
Spring 2012
Why do we need state agencies?
 Texas used to be a largely agricultural society.
 Texas industry in the 1900s. (Photo from UNT Library)
Administrative Policy Writing
Spring 2012
 A refinery today in Texas City.
 (Photo © BP p.l.c.)
Administrative Policy Writing
Spring 2012
Homework
 Review the lists of state and federal agencies. Pick one on each
list and visit their web page.
 Then complete the Agency Explanation exercise.
 Provide a brief explanation of what the agencies do.
 Watch part of a recorded hearing at a state agency: the Texas
Commission on Environmental Quality (TCEQ).
 Watch only the first 10 minutes, unless you want to see more. You
will have to pay attention to what is going for the quiz.
 You will need Real Player installed.
 Read a very short article on federalism.
 Read a story from the Houston Chronicle on a dispute involving
the TCEQ and complete the Reading Response.
 Optional: More info on how state agencies work.
Administrative Policy Writing
Spring 2012
PART II
A Closer Look at Rule-Making and Enabling Statutes
Administrative Policy Writing
Spring 2012





More on Rules
We saw last week that agencies exist to carry out or execute
a statute passed by the legislature.
One important way they do this is adopting rules or
regulations.
Thus, an important part of public policy is rule-making.
Today, we will look at the process agencies use to adopt
rules and what actual rules look like.
But first, a short review to make sure we understand the
context of regulations.
Administrative Policy Writing
Spring 2012
Quick Review
 Public policy often involves combination of statutes passed by the
legislature and regulations adopted by government agencies.
 Quick review of the process:
 The legislature passes a statute that regulates some activity, industry, or




profession.
Under our system of government, the state legislatures can do this
under their police power. The federal government relies upon an
enumerated power in the Constitution.
The statute will often delegate rule-making authority to an agency to
adopt more specific requirements.
And the statute will often authorize the agency to enforce those
regulations or the statute itself through whatever means the legislature
provides
(e.g. the ability to assess fines or issue licenses).
Administrative Policy Writing
Spring 2012





Quick Review
Imagine this process of policy-making in the hypothetical
kingdom of Xanadu.
The people of Xanadu are concerned about individuals
going around claiming to be “doctors” and providing
medical treatment without any formal education.
In some cases, patients are severely injured or even killed
by their incompetence.
Under their constitution, the government in Xanadu has
the power to pass any law related to the health or welfare of
the people.
So the representatives decide to pass a law called the
Xanadu Medical Licensing Act.
Administrative Policy Writing
Spring 2012
Quick Review
 Most of the Xanadu legislators are not doctors
themselves and know very little about the practice of
medicine.
 So they are not in a good position to specify what
exactly one must do to be a competent doctor.
 So part of the Medical Licensing Act creates an agency
of the Xanadu government called the Xanadu
Medical Board.
Administrative Policy Writing
Spring 2012
Quick Review
 The Act provides the Board with the authority
 to adopt rules on the practice of medicine
 to establish educational standards which anyone who wants
to practice medicine must follow
 and to issue licenses
 Importantly, the Act also gives the Board the power to take
away a doctor’s license if it believes the doctor has not
complied with their rules.
 In addition to these functions, the Board must also provide
information to the public about doctor qualifications,
how to become a doctor, and so on.
Administrative Policy Writing
Spring 2012
Quick Review
 That is the gist of how administrative agencies work.
 There is a lot of writing that goes in this this process:
 Rule making
 Responding to public comments on proposed rules
 Publishing licensing materials
 Publishing guidelines
 Publishing web sites
 Responding to citizen inquiries
 Today we are going to look at the first of these: public
participation in rule-making.
Administrative Policy Writing
Spring 2012
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.
 My goal is for you to understand process of rulemaking and how to find proposed rules that have
been published for public comment.
Administrative Policy Writing
Spring 2012
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.
 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. (More
checks and balances.)
Administrative Policy Writing
Spring 2012





The Texas Register
The process begins by publishing the proposed rule in the Texas
Register for public comment.
The Texas Register is an official publication of the state that is
maintained by the Texas Secretary of State.
New issues are published several times each month.
Available online: http://www.sos.state.tx.us/texreg
The Texas Register publishes various public notices on the
activities of the state government and all of its agencies:





proposed agency rules
adopted rules
withdrawn rules
executive orders and appointments
and other information of general interest to the public
Administrative Policy Writing
Spring 2012
Contents of a proposed rule
 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 2012
Public Comment Period
 After a proposed rule is published in the Texas
Register, the state agency must accept public
comments for 30 days and consider the comments it
receives.
 The public is free to express agreement or
disagreement with the proposed rule or suggest
alternatives.
 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 2012




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.
Many proposed
rules receive no
comments.
Administrative Policy Writing
Spring 2012




Public Comments
Let’s look at a proposed rule that did receive comments.
Texas Parks and Wildlife Department proposed a rule
on May 27, 2011 that would change the hunting season
dates and bag limits for certain migratory game birds.
The proposed rule received numerous comments both for
and against the rule, and the Department adopted the rule
on August 25, 2011.
On October 14, 2011, the Department published notice of
this adopted rule and their response to the comments.
See how the
Department responds
to the negative
comments it received
on the proposed rule
Notice how the concept
of federalism is operating
behind the scenes. The
Department is mindful of
conforming its rule to an
existing federal statute or
regulation.
Administrative Policy Writing
Spring 2012




The Texas Administrative Code
After a rule is adopted, it is codified in the Texas
Administrative Code (TAC).
The TAC 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 2012
Administrative Policy Writing
Spring 2012
Texas Administrative Code
 The TAC is organized into titles, chapters, subchapters, and
sections. Today, we are going to look around at the TAC and
look some specific rules.
 We will cover its organization in more detail when we
discuss citing agency rules. (Next week.)
 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 2012
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 2012
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. Each subsection typically
deals with a different subject.
 Notice how some of the subsections are further
divided.
Administrative Policy Writing
Spring 2012
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 who are regulated
by these rules.
 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. Rule-writers will typically define words in a more
narrow or technical sense than they are used in everyday life and put
those definitions in a separate section of the rules.
 Is the word “midwife” defined in the rules? Look at section 831.2(12).
What does it say?
Administrative Policy Writing
Spring 2012
Example from the Midwifery Board
 Who is a midwife for the purpose of these rules?
 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



supervision/care/advice
conducting normal delivery and
providing newborn care
Administrative Policy Writing
Spring 2012
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.”
Administrative Policy Writing
Spring 2012
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 authority for the Board to
adopt rules.
 Remember, the Board has only those powers that the
statute provides.
 Texas Occupations Code Chapter 203.
Administrative Policy Writing
Spring 2012
The Texas Midwifery Act
Administrative Policy Writing
Spring 2012
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 2012
The Texas Midwifery Act
 Like agency rules, the enabling act will typically
include a section of definitions.
 The act will also specify requirements for organization
of the agency:
 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 and how those rules are to be
enforced.
Administrative Policy Writing
Spring 2012
Texas Midwifery Act
 Notice the sunset review for the Board.
Administrative Policy Writing
Spring 2012
Texas Midwifery Act
 Remember, the legislature is the boss. It gets to specify what the
agency can and cannot regulate. And can even exempt particular
situations, as in the case here.
 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 the
hospital.
Administrative Policy Writing
Spring 2012
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.
 The Board then fills in the details on how to become licensed.
Administrative Policy Writing
Spring 2012
Review for Parts I and II
 Public policy for both the state and federal government is a product of




statutes passed by the legislature and more detailed regulations adopted
by state and federal agencies.
Most state agencies were created by the Texas legislature to execute one or
more laws.
The most typical tools for executing the law include the power to issue
license and permits and the power to assess monetary penalties.
Agencies are limited in what they can regulate. They do not have the
police power. They are generally charged with filling in the details on a
statute passed by the legislature and cannot go outside of their delegation
of authority.
We have developed a government that relies heavily on agencies to make
policy because of modern society is so complex and requires specialized
knowledge.
Administrative Policy Writing
Spring 2012
Review for Parts I and II
 The Administrative Procedure Act requires that
proposed rules must be published in the Texas Register
for public comment.
 Agencies must consider and respond to public comments
before adopting proposed rules.
 After the period of public comment, rules are codified in
the Texas Administrative Code.
 Valid agency rules have the force of law.
Administrative Policy Writing
Spring 2012





Writing Project
Public comments to proposed regulations are an essential
part of federal and state governments.
They act as one of the checks on the rule-making process,
preventing a rogue agency from adopting irrational rules.
Not only individuals, but also businesses and organizations
submit comments to proposed regulations.
Thus, the system of public comments in the APA is an
important part of public policy and administrative policy
writing.
The back-and-forth in public comments and agency
responses is a key part of making public policy in this state.
Administrative Policy Writing
Spring 2012





Writing Project
The writing project for this unit involves drafting
comments to a current regulation as if it were still in the
stage of being a proposed rule.
By completing this project, you will demonstrate your
ability to read and analyze the text of a regulation and
compose written arguments on matters of public policy.
These are essential skills for any public-policy writer.
Therefore, we will spend a good bit of time on this project,
which is divided into two parts.
The first part is described below and is due on March 3.
We will discuss the second part next week.
Administrative Policy Writing
Spring 2012
Writing Project
 The first part of this project requires you to draft
 an outline of the proposed rule.
 and arguments for and against the proposed rule.
 All of this comes before your own comments to the rule to
encourage you to think carefully and with an open mind.
 Good policy writers know that there are usually decent
arguments that can be made on either side of any given
issue.
 Rather than ignore them, you should think about them and
address them in your own remarks.
 The second part of the project will involve you taking a
position either for or against the rule.
Administrative Policy Writing
Spring 2012
Homework
 In addition to the Texas Register project, complete the
Week 6 Reading Response.
 This is another case of government agencies involved in
real-world controversies. This one involves rule-making by
a federal agency called the Department of Labor.
 You will read an article published by an industry group in
opposition to proposed rules. Then you will write a
response.