Administrative Law

Transportation Code section 681.0101 - A court would likely conclude that section 681.0101 does not authorize a political subdivision to appoint a private business to enforce the privileged parking provisions of chapter 681 because a private business is not a "person" under section 681.0101|Privileged parking provisions of Transportation Code chapter 681 - A court would likely conclude that a political subdivision is not authorized to contract with a private business to enforce the privileged parking provisions of chapter 681.

Unilateral, voluntary surrender of license - A court would likely determine that the Texas Board of Professional Geoscientists has implied authority under Occupations Code chapter 1002 or any other law to accept the unilateral, voluntary surrender of a license|Texas Board of Professional Geoscientist - A court would likely determine that the Texas Board of Professional Geoscientists has implied authority under Occupations Code chapter 1002 or any other law to accept the unilateral, voluntary surrender of a license|Texas Board of Professional Geoscientists - A court would likely determine that the Texas Board of Professional Geoscientists has implied authority under Occupations Code chapter 1002 or any other law to accept the unilateral, voluntary surrender of a license

Sales agent license - language in Occupations Code section 53.021 does not authorize Lottery Commission to deny, suspend, or revoke a sales agent license due to deferred adjudication for offense of gambling|Deferred adjudication on a gambling-related offense - Lottery Commission may comply with applicable statutes and consider deferred adjudication on a gambling-related offense to be a conviction if circumstances meet requirements of 53.021(d), Occupations Code, thereby authorizing it to deny, suspend, or revoke license|Applicant character and fitness - Whether Lottery Commission may consider presence of illegal gambling activity at applicant's retail location in examining applicant's character and fitness under 466.151(e), Lottery Act, depends on facts|illegal gambling activity - court would likely conclude that Lottery Commission's express authority to make findings under 466.151(e), State Lottery Act, implies authority to determine whether particular activity constitutes illegal gambling, or if particular item constitutes an illegal gambling machine under Penal Code|"Professional gambler" - Court would likely conclude that rule broadening scope of the term "professional gambler" to include person who conducts or allows illegal gambling activity at proposed or existing lottery retail location would exceed authority Legislature granted to Lottery Commission|A court is not likely to infer authority from sections 466.351 and 466.355, Lottery Act, for the Lottery Commission to consider the presence of illegal activity at a retail location in deciding whether to deny, suspend, or revoke a sales agent license

Deference to agency interpretation, Texas courts defer only when the agency adopts the construction as a formal rule or opinion after formal procedures and only upon finding an ambiguity exists in the statute and that the construction is reasonable and consistent with the plain language

Municipal police chief and constable, neither Texas Constitution article XVI, section 40 nor the common-law doctrine of incompatibility bars the simultaneous holding of the positions of municipal police chief and constable in the same precinct where the city is located|Neither Texas Constitution article XVI, section 40 nor the common-law doctrine of incompatibility bars a municipal police chief from simultaneously holding the position of constable in the same precinct where the city is located|Municipal police chief and constable, neither Constable and municipal police chief; neither Texas Constitution article XVI, section 40 nor the common-law doctrine of incompatibility bars the simultaneous holding of the positions of municipal police chief and constable in the same precinct where the city is located|

Delegation of legislative authority to private entity-a court would first confirm the delegation, examining whether it results in a private entity setting public policy, providing the details of the law, promulgating rules and regulations to apply the law, or ascertaining conditions upon which existing laws may operate. If so, court would apply eight-factor test from Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen to determine whether the factors as a whole weigh in favor of or against constitutionality.|Delegation of legislative authority to public entity - court examines whether the Legislature established reasonable standards to guide the public entity in exercising such powers.|Regulatory takings challenge, a court considering challenge would use federal framework examining: (1) regulation's economic impact on claimant; (2) the nature of the governmental action; and (3) regulation's degree of interference with property owner's economic expectations."|Proposed management plan (the "Plan") for the Upper San Saba River involving a potential delegation of legislative authority, the constitutionality of, and whether such a Plan would result in a regulatory taking, involves fact determinations that cannot be resolved in an attorney general opinion.

Department of Agriculture may not add burdens, conditions, or restrictions beyond those imposed by statute

Board of Examiners of Psychologists rule must not be inconsistent with relevant statute|Submission of bill to third-party payer by licensed psychologist for test conducted by supervisee|Insurance fraud - Penal Code section 35.02 sets out offense of

School district's expenditure for a scholarship program under article III, section 52(a)|School district's expenditure for a scholarship program under Texas Constitution article III, section 52(a)|School district's expenditure for a scholarship program under Texas Constitution article II, section 52(a)

Rule of Texas Commission on Private Security regulating uniformed motorcycle escort services that perform traffic control and traffic safety functions is not authorized by statute|Uniformed motorcycle escort services that perform traffic control and traffic safety functions, Texas Commission on Private Security regulation of is not authorized by statute|Authority to regulate uniformed motorcycle escort services that perform traffic control and traffic safety functions, Commission does not have

Expired chiropractic license may not be renewed if expired for one year, subject to exceptions, and former licensee must qualify for initial license|Rule contrary to statute regarding qualifications for licensure, state agency has no authority to adopt|Expired license may not be renewed if expired for one year, subject to exceptions, and former licensee must qualify for initial license

Legislator may represent person in administrative license revocation hearing only if legislator has previously represented person in criminal proceeding arising out of same facts|Administrative license revocation hearing, legislator may represent person in, only if legislator has previously represented person in criminal proceeding arising out of same facts|Legislator may represent a person in administrative license revocation hearing only if legislator has previously represented person in criminal proceeding arising out of same facts

Injunctive relief for violations, Residential Construction Act allows Commission to refer names of builders that have failed to register with Commission to the attorney general who may seek|Residential construction, Residential Construction Act allows business entities or individuals falling within the general definition of "builder" that have a state or local license to engage in|Injunctive relief for violations, Act allows Texas Residential Construction Commission to refer names of builders that have failed to register with Commission to the attorney general who may seek

Requirements additional to those set forth in statute, an administrative agency may not impose|Retirement benefits for employees of community supervision and corrections department employees, Employees Retirement System may not establish requirements for receiving that are inconsistent with the requirements set by the county benefit system from whi|Group benefits, an employee of a community supervision and corrections department employees is eligible for retirement benefits when he or she satisfies the eligibility standards set by the county benefit system from which the employee currently receives

Rules are construed in the same way as statutes|Remonstrance, individual's right of|Innocence, rule stating requirements to apply for Board recommendation of pardon based on Board's authority to waive such requirements

State remediation standard, where adopted by valid rule for statewide use, application for different standard at a particular site, is arbitrary and capricious|CERCLA remediation action in the State of Texas, the U.S. Environmental Protection Agency must follow more stringent state standards that are applicable or relevant and appropriate requirements|Lead cleanup standard of the state, if an applicable or relevant and appropriate requirement. or ARAR, under CERCLA, the EPA, undertaking any remediation action at the site, must adhere to the state standard|Rules, Administrative agency is bound to follow unambiguous language of agency's own

County that is the on-site sewage facility permitting authority, sheriffs and their deputies are subject to the Commission on Environmental Quality's prohibition from working as an on-site sewage facility installer within the permitting authority's jurisdiction|On-site sewage facility installer, county sheriffs and their deputies are subject to the Commission on Environmental Quality's prohibition from working as an installer when the county is the permitting authority|On-site sewage facility permitting authority, sheriffs and their deputies are subject to the Commission's prohibition from working as an on-site sewage facility installer when the county is the permitting authority|An agency's reasonable construction of its rule is entitled to deference

Newly registered alarm installers, authority of Board to adopt rules concerning activities of|Newly registered alarm installers, authority of Private Security Board to adopt rules concerning activities of|Safety|Conduct|Qualifications

Agency orders, when void\r\nAuthority of agency to reopen orders that have become administratively final\r\n|Authority of Lottery Commission to reopen an order granting a transfer of a commercial lessor license that has become administratively final\r\n\r\nOrders of the Texas Lottery Commission, when void\r\n\r\nTransfer of a commercial bingo lessor license to a person other than a corporation formed or owned by the license holder|Authority of Commission to reopen an order granting a transfer of a commercial lessor license that has become administratively final\r\n\r\nOrders of the Commission, when void\r\n\r\nTransfer of a commercial bingo lessor license to a person other than a corporation formed or owned by the license holder\r\n|Codification to be give effect over prior repealed statute if specific provisions of a codification and the code as a whole are direct, unambiguous, and cannot be reconciled with prior law\r\n

Agency rule exempting short-duration programs from child-care facility licensing requirement is invalid as inconsistent with section 42.041, Human Resources Code

Regulations construed using the same principles of construction as statutes, and a reasonable construction by the agency that promulgated the rules is entitled to deference|Authority to supervise inmates being held in courthouse holding cells, as the agency charged with adopting reasonable rules and procedures establishing minimum standards for the custody, care and treatment of prisoners, the Texas Commission on Jail Standards must determine, in the first instance, whether bailiffs have the

Open Meetings Act, Texas State Library and Archives Commission’s rule requiring a state agency to create and maintain written minutes of the agency’s open meetings is invalid under the|Administrative rule may not be inconsistent with the expression of the lawmakers’ intent in statutes other than those under which the regulations are issued

To the extent that agency rule expands services that an assisted living facility may provide to include nursing services that go beyond personal care services of the administration of medication, it is contrary to the statute and agency has exceeded its authority in promulgating it\r\n|Assisted living facilities are not authorized to use facility staff to provide nursing services beyond personal care services and the administration of medication to residents that have a terminal condition or an acute illness of short duration|To the extent that agency rule expands services that an assisted living facility may provide to include nursing services that go beyond personal care services of the administration of medication, it is contrary to the statute and agency has exceeded its authority in promulgating it

Must include|An administrative agency may adopt only such rules as are authorized by and consistent with its statutory authority\r\n\r\nDeterminative factor as to whether an agency exceeds its rule-making authority is whether the regulation is in harmony with the general objectives of the statute\r\n\r\nWhether rules are in harmony with the general objectives of the relevant statute is determined through statutory construction\r\n\r\nDepartment of Family and Protective Services, authority to adopt rule that increases the number of training hours required for an employee of a day-care center or group day-care home from that set out in statute

An administrative agency can adopt only such rules as are authorized by and consistent with its statutory authority|In deciding whether an agency has exceeded its rule-making powers, the determinative factor is whether the rule’s provisions are in harmony with the general objectives of the act involved|Beyond the authority of the Commission, as we construe subsection 32.0248(h) of the Human Resources Code, the term \\"affiliate\\" connotes an element of control between entities and, to the extent the Commission’s proposed rule defining the term does not include any element of control between entities, a court would likely consider it to be inconsistent with subsection 32.0248(h) and thus|Affiliate

Special education due process hearing, pursuant to subsection 81.101(a) of the Government Code a non-attorney may not practice law at a|Non-attorney may not practice law at a special education due process hearing pursuant to subsection 81.101(a) of the Government Code|Non-attorney to engage in conduct that constitutes the practice of law, a court would have a basis to invalidate a Texas Education Agency rule that allows a|Special education due process hearing, pursuant to subsection 81.101(a) of the Government Code, a non-attorney may not practice law at a|An agency rule that allows a non-attorney to engage in conduct that constitutes the practice of law, a court would have a basis to invalidate a

Medicaid, Health and Human Services Commission rule for payment of Medicare deductibles and coinsurance for services provided to persons eligible for both Medicare and Medicaid

The Comptroller\\'s conclusion that voters in areas annexed for limited purposes under Local Government Code section 43.0751 must be given the opportunity to vote on the imposition of fire control and crime control district taxes before a municipality my impose them on those areas is reasonable and will likely be shown deference by the courts.

Agency\\'s reasonable interpretation of its statute is entitled to deference|Qualified allocation plan for allocating low-income housing tax credits, validity of

Councils of government as units of general local government for purpose of HUD\\'s HOME Program

Government Code section 2001.006 permits state agencies to adopt rules and take administrative action to prepare for the implementation of new legislation, but such rules and actions may not take effect, however, until the effective date of the new legislation|Government Code section 2001.006 permits state agencies to adopt rules and take administrative action to prepare for implementation of new legislation, but such rules and actions may not take effect, however, until the effective date of the new legislation|Tax Code chapter 171, subchapter S is silent on the question of appeal of a denial of a certificate of eligibility, and there is no constitutional violation or impairment of vested property right, so the denial of a certificate of eligibility is not subject to appeal|New tax credit in House Bill 500 of the 83rd Legislature is not limited to taxable entities, thus it may be claimed and transferred by an entity that owns a rehabilitated certified historic structure even if the entity is not subject to the franchise tax|New tax credit for rehabilitated, certified historic structures created in House Bill 500 of the 83rd Legislature, to be codified at Tax Code chapter 171, subchapter S, is not operative until the 2015 tax year|An entity whose qualifying rehabilitated certified historic structure is placed in service between September 1, 2013 and January 1, 2015, may be eligible for the new tax credit but not until the 2015 tax year|Costs and expenses that are \\"eligible costs and expenses\\" associated with the rehabilitated certified historic structure qualified under the statute would be eligible for the new tax credit but not until the 2015 tax year

Lottery Commission - authority to deny or revoke an entity\\'s bingo-related license solely on the basis that an officer, director, or shareholder has been convicted or constructively convicted of certain offenses|Bingo-related licenses - authority to deny or revoke an entity\\'s bingo-related license solely on the basis that an officer, director, or shareholder has been convicted or constructively convicted of certain offenses

Funding and provision of health care services covered by Medicaid; 2 models, the traditional model and the managed care model|The Health and Human Services Commission is responsible for administering the state\\'s Medicaid Program, which is a federal-state program providing health-care services for low-income individuals|Reimbursement for behavioral health services under Texas Medicaid Reimbursement Methodology|The Texas Health and Human Services Commission does not operate under the Insurance Code. It is the state agency that administers the state\\'s Medicaid program for individuals who cannot afford insurance.

Secretary of State\\'s authority to enforce notary public\\'s duty to provide copies of entries in the notary public record book upon proper request|Notary public\\'s duty to respond to a request for copies of entries in the notary public record book by providing redacted copies|Article IV, section 26 concerning notaries public|State statutory duty to disclose information in light of possible federal constitutional or statutory privilege

Water Commission, rule-making delegation to does not violate Texas Constitution|Rule-making delegation to Commission does not violate Texas Constitution

Disciplinary proceedings against licensee indicted but not convicted of felony, Board may not bring|Rules prohibiting specific criminal conduct, Board may (after notice and hearing) revoke or suspend license, registration, or commission on proof of licensee's violation of|Disciplinary proceedings against licensee indicted but not convicted of felony, a state board may not bring|Licensee who is indicted but not convicted of felony, state board may not bring disciplinary proceedings against

Planning and implementation fees collected from persons licensed to possess or use radioactive material or own or operate a nuclear power plant are not receipts from waste received at disposal site|Exceeds statutory authority, agency that adds burdens, conditions, or restrictions to those imposed by statute|Impact assistance allocation, Authority may not designate portion of planning and implementation fees collected from person licensed to possess or use radioactive material or to own or operate a nuclear power plant for

Texas Automobile Insurance Plan, rule vesting amendment power over in group of private insurers is unconstitutional delegation of legislative authority|Texas Automobile Insurance Plan, Board has ultimate rule-making authority over

Administrative Procedure and Texas Register Act, Board is not subject to|Court Reporters Certification Board is not subject to the Act

Ex parte communications by hearings examiner in contested case about hazardous waste permit, statutory prohibition against|Ex parte communications by Water Commission hearings examiner in contested case about hazardous waste permit, statutory prohibition against

Ex officio board members with no voting power should not be counted in determining quorum|Ex officio|Quorum|Majority of Board is two-thirds of Board members|Quorum, ex officio Board members are not counted in determining

Nursing facility, Board may adopt regulation requiring applicant for license to operate to disclose prior involvement in operation of nursing facilities and may also adopt regulation that will empower Department of Health to deny license based on the info|Nursing facility, Board of Health may adopt regulation requiring applicant for license to operate to disclose prior involvement in operation of nursing facilities and may also adopt regulation that will empower Department to deny license based on the info|Nursing facility, applicant for license to operate may be required to disclose prior involvement in operation of nursing facilities|Nursing facility, applicant for license to operate may be required to disclose prior involvement in operation of nursing facilities and may be refused license upon basis of that information|Regulation may not impose burdens, conditions, or restrictions in excess of or inconsistent with statute

Licensing board required to use services of State Office of Administrative Hearings (SOAH) may not make its own findings of fact, conclusions of law, or vote on discipline but must receive proposal for decision from SOAH|Licensing board required to use services of SOAH may not make its own findings of fact, conclusions of law, or vote on discipline but must receive proposal for decision from SOAH

Resident tuition rates, nonresident scholarship recipient may be eligible for if scholarship is competitive academic scholarship (Affirmed by Tex. Att'y Gen. LO-94-035)|Statutory authority to adopt rule, agency must cite in final order adopting rule; but failure to do so, by itself, does not invalidate rule where other, uncited statutes authorize rule (Affirmed by Tex. Att'y Gen. LO-94-035)|Competitive academic scholarship, Board's criteria for may not exceed or be inconsistent with statute (Affirmed by Tex. Att'y Gen. LO-94-035)

Viatical settlements, constitutionality of statute authorizing Department of Insurance to regulate|Viatical settlements, constitutionality of statute authorizing Department to regulate

Historically underutilized businesses, Commission may not promulgate rule deeming businesses owned by disabled persons as|Businesses owned by disabled persons as "historically underutilized businesses," General Services Commission lacks authority to promulgate rule deeming|Historically underutilized businesses, General Services Commission may not promulgate rule deeming businesses owned by disabled persons as|Businesses owned by disabled persons, General Services Commission lacks authority to promulgate rule deeming as "historically underutilized businesses"

Taxation methods for calculating "net to land" in determining appraised value of open space land, constitutionality of|Comptroller's regulation regarding valuation methods for calculating "net to land" in determining appraised value of open space land, validity of|Valuation methods for calculating "net to land" in determining appraised value of open space land, constitutionality of|Open space land, constitutionality of valuation methods for calculating "net to land" in determining appraised value

Pollution-control statutes and rules, statute authorizing state agency to grant exemptions to does not violate constitutional suspension of laws, separation of powers, or local or special law provisions|Local or special law, statute authorizing state agency to grant exemptions to pollution-control statutes and rules does not constitute|Suspension of laws, statute authorizing state agency to grant exemptions to pollution-control statutes and rules does not constitute|Delegation of authority to state agency to grant exemptions to pollution-control statutes and rules does not violate|Exemptions to pollution-control statutes and rules, statute authorizing state agency to grant not an unconstitutional delegation of legislative authority

Properly promulgated agency rule has force of law and binds other state entities

Standards, Board may adopt plumbing of statewide applicability, but Board must adopt only the three codes incorporated into article 6243-101, section 5B(a) of the Revised Civil Statutes|Plumbing codes, municipality may not vary "substantially" from state standards|Substantially|Private entity, statute incorporating codes promulgated by is presumed constitutional

Site evaluators for on-site sewage disposal facilities, Commission has no express or implied statutory authority to issue rules regulating|On-site sewage disposal facilities, Natural Resource Conservation Commission has no express or implied statutory authority to issue rules regulating "site evaluators" for|Rule making authority of Natural Resource Conservation Commission under statute regulating on-site sewage disposal facilities

Ultra vires, agency rule is to extent it authorizes personal-care facility to offer services beyond those authorized in statute|Personal-care facility, Board of Human Services may not adopt rule that permits it to offer services beyond those listed in Personal Care Facility Licensing Act|Personal-care facility, Board may not adopt rule that permits it to offer services beyond those listed in Personal Care Facility Licensing Act|Nursing services|Personal care services

Inactive pit with edge located within 200 feet of public roadway constitutes an "unacceptable unsafe location" and is subject to statutory safety-barrier requirements if a pit is located on site with a "plant"|Ambiguous statute, Court will accept a commission's construction of if regulation reasonably construes the statute and does not contradict the statute's plain language|Pit, Commission may define "unacceptable unsafe location" to include inactive pit with edge located beyond 200 feet from public roadway intersection|Unacceptable unsafe location|Inactive pit|Plant

Advisory committee, state agency's authority to create may be express or implied (Modifies Tex. Att'y Gen. LO-98-009 to the extent of conflict)|Statewide Transportation Policy Committee and Bicycle Advisory Committee, Department has implied authority to create (Modifies Tex. Att'y Gen. LO-98-009 to the extent of conflict)|Advisory committee, state agency's authority to create may be express or implied (Modifies Tex. Att'y Gen. LO-98-009 to the extent of conflict)

Agency statements concerning internal management of agency are not rules within Act and may be included in policy letters|Texas Air National Guard, validity of regulation providing for termination of officer for lacking professional qualifications|Termination of officer from Texas Air National Guard, validity of regulation authorizing

Local workforce development corporation board, private-sector representative is not ineligible to service on solely because person is employed outside local area|Burdens, conditions, or restrictions that exceed those in relevant statutes, agency rule may not impose|Local workforce development board's private-sector representative, Commission rule may not be construed to impose additional eligibility requirements on|Should

Health organizations, whether foreign nonprofit corporations may be certified as|Board of Medical Examiners, validity of Board's construction that only domestic nonprofit corporations may be certified as nonprofit health organizations|Nonprofit health organizations, whether foreign nonprofit corporations may be certified as

Authority to regulate contract language or to enforce contracts between structural pest control providers and consumers, Board generally has|Authority to regulate contract language or to enforce contracts between structural pest control providers and consumers, Structural Pest Control Board generally has not expressly or implicitly been given

Physician advertising, authority of Board to prohibit use of testimonials in|Advertising, authority of Board of Medical Examiners to prohibit use of testimonials in|Board of Medical Examiners, authority to prohibit by rule physician advertising containing testimonial

Bail bond surety, applicant for licensure may submit evidence of the value of real property to be executed in trust to the county bail bond board|Adjudicative powers of county bail bond board|Applicant for license as bail bond surety may submit evidence of the value of real property to be executed in trust to the county bail bond board

Deliberation and decision-making, bail bond board member's delegation of must be expressly authorized|Alternate licensed bail bond surety to serve on county bail bond board when licensed bail bond surety representative is unable to attend meetings, board may not permit

Labeling of dietary supplements with United States Food and Drug Administration toll-free telephone number for reporting adverse events, authority of Department to promulgate rule requiring|Federal Food and Drug Administration toll-free telephone number for reporting adverse events, authority of Texas Department of Health to promulgate rule requiring on labels for certain dietary supplements|Food and Drug Administration toll-free telephone number for reporting adverse events, authority of Texas Department of Health to promulgate rule requiring on labels for certain dietary supplements

Statute that appears to delegate authority to private entity which promulgates codes for installation, alteration, operation, and inspection of elevators, escalators, and related equipment must be construed to incorporate only those editions of codes that|Private entity, statute that adopts by reference standards promulgated by private entity may not be construed to incorporate editions of those standards adopted after the statute|Delegates authority to private entity that promulgates codes for installation, alteration, operation, and inspection of elevators, escalators, and related equipment, statute that may appear to must be construed to incorporate only those editions of codes |Elevators, escalators, and related equipment, Department may not adopt revisions of American Society of Mechanical Engineers (ACME) codes adopted subsequent to 1995 amendments to section 754.014 of Health and Safety Code

Cemeteries and crematories owners or operators registered with the Commission, authority to regulate|Funeral Service Commission, authority to regulate cemeteries and crematories owners or operators registered with the Commission

Funeral Service Commission, authority to register and investigate cemeteries and crematories and to require cemeteries or crematories to submit consumer disclosure documents|Cemeteries' and crematories' owners or operators, authority to register and investigate cemeteries and crematories and to require cemeteries and crematories to submit consumer disclosure documents

Chronically Ill and Disabled Children's Program, Board of Health is responsible to adopt eligibility criteria and system of priorities for|Subdelegate statutory responsibility to staff, Board of Health may not|Chronically Ill and Disabled Children's Program, Board may not delegate duty to adopt eligibility criteria and system of priorities for

Internal Auditing Act, application to state agencies

Professional title, Board is authorized to promulgate rule permitting its licensees to use the title "chiropractic physician"|Professional title, Board of Chiropractic Examiners is authorized to promulgate rule permitting its licensees to use the title "chiropractic physician"

Under subsection 301.161 S(b) of the Occupations Code, the Texas Board of Nursing may not disclose the criminal history record information of its license applicants or holders to any person except to another nursing board or by court order.

When the Department of Public Safety provides the Board with a nondisclosure order or the order's contents, subsection 411.075(d) of the Government Code requires the Board to seal criminal history record information it maintains that is subject to the nondisclosure order. The Board has a duty to seal and maintain such information as confidential even when the Board learns of a nondisclosure order after issuing a final disciplinary action.

Occupations Code chapter 1102’s express authorization for a real estate inspector to provide an opinion on real estate’s “plumbing systems” likely includes a camera inspection; thus, to the extent the Texas State Board of Plumbing Examiners’ rule requires a real estate inspector to get a plumber’s license to perform a job that is within the scope of the real estate inspector’s license, a court would most likely consider the rule invalid.

County authority to require facial coverings in courtrooms, courthouses, and county buildings can be found in in the Texas statutes, and in emergency and executive orders.

A rule exempting an appraiser licensed under Occupations Code chapter 1103 from complying with the Uniform Standards of Professional Appraisal Practice when performing an evaluation as allowed under the federal Interagency Appraisal and Evaluation Guidelines would conflict with section 1103.405.

The Legislature authorized the Behavioral Health Executive Council to take disciplinary action against social workers who refuse to perform an act or service within the scope of their licenses solely because of the recipient’s age, sex, race, religion, national origin, color, or political affiliation.  The Council adopted a rule changing the word “sex” to “gender” and authorizing disciplinary action for refusal of service based on disability, sexual orientation, and gender identity and expression.  In doing so, the Council exceeded the authority granted to it by the Legislature by rewriting the language chosen by the Legislature and imposing additional restrictions in excess of the relevant statutory provisions.  A court would likely conclude that the rule is invalid to the extent that it is inconsistent with and exceeds the Council’s statutory authority.

No Texas statute prohibits discrimination based on sexual orientation or gender identity or expression, and the U.S. Supreme Court has emphasized that religious and philosophical objections to categories of sexual orientation are protected views and in some instances protected forms of expression under the First Amendment.  If the Legislature intends otherwise, it may expressly amend the statute to so provide. A Council rule prohibiting that expression conflicts with the longstanding constitutional protection for an individual’s free exercise of religion. 

While a social worker may not discriminate based on disability in contravention of state and federal law, the Council lacks statutory authority to discipline a licensee for discrimination based on disability.

A court would likely conclude that the Council may not readopt, modify, or repeal a rule that concerns one of the subjects in Occupations Code subsection 507.153(a) unless the examining board for the profession first proposes readoption, modification, or repeal.

Education Code subsections 29.153(d-1) and (g), concerning the solicitation of public-private partnerships in connection with the provision of free prekindergarten by school districts, are mandatory in certain instances. The stringent eligibility criteria in Education Code section 29.171 for a provider to enter into a public-private partnership agreement for prekindergarten should not be used as a condition for the provider to submit a proposal for such a partnership under subsection 29.153(g). A court could conclude under certain circumstances that Texas Education Agency guidelines should be promulgated through formal rulemaking under the Administrative Procedure Act. A court would likely conclude that neither the Governor’s COVID-19 Disaster Declaration nor any related Executive Order authorize the suspension of Education Code subsections 29.153(d-1) or (g).

The Texas Behavioral Health Executive Council’s rulemaking authority likely includes authority to adopt a rule allowing a person licensed as a Licensed Specialist in School Psychology to use the title School Psychologist or Licensed School.

As the more specific provision, Texas Occupations Code section 201.5065 prevails over sections 53.021 and 201.502. Accordingly, the Board of Chiropractic Examiners does not have discretion regarding whether to suspend or revoke a chiropractor’s license if the licensee has been convicted of an offense within the purview of Texas Occupations Code section 201.5065.

Considering the requirement of a license under Occupations Code chapter 1101 for persons engaged in transactions involving wind leases.