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Administrative Policy WritingSpring 2011

Overview of Texas Administrative AgenciesAdministrative Policy WritingSpring 2011FoundationsThe Texas Constitution created three branches (or departments) of government: the executive departmentThe legislative departmentThe judicial departmentTex. Const. art. II, sec. 1.So where do state agencies come from?Administrative Policy WritingSpring 2011FoundationsSome agencies were created as part of the executive department in the constitution. The state constitution created seven executive department officials:governorlieutenant-governorsecretary of statecomptroller of public accountstreasurercommissioner of the General Land Officeattorney generalTex. Const. art. IV, sec. 1.

Administrative Policy WritingSpring 2011However, 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 QualityThe Texas Board of Nursing ExaminersThe Texas Education AgencyThe Department of Parks and WildlifeAnd so on Administrative Policy WritingSpring 2011FoundationsFor 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 WritingSpring 2011What 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 WritingSpring 2011What 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 cant simply adopt any rule they want.In order to understand why, we must go back to the Texas Constitution.

Administrative Policy WritingSpring 2011The Power to Make LawThe 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 WritingSpring 2011The Power to Make LawAny means any. As long as the law does not violate the U.S. or Texas Constitution, it is within the legislatures 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 WritingSpring 2011SidenoteThe 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 includesimmigrationbankruptcycopyrightsthe money supplyinterstate commerceothers Federalism: power divided between states and federal government. Different kinds of government at work.Administrative Policy WritingSpring 2011The Power to Make LawState 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 WritingSpring 2011The Fourth BranchWe 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 quasi-legislative and quasi-judicial powers.Thus, they are sometimes called the fourth branch of government, or the three-headed monster.

Administrative Policy WritingSpring 2011The Fourth BranchLegislative: 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 nurses 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 dont get the final say. More on this later.)Administrative Policy WritingSpring 2011The Fourth BranchThe 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 WritingSpring 2011Institutional valuesThe 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 WritingSpring 2011Institutional valuesAgencies 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 doctors license?Administrative Policy WritingSpring 2011Institutional valuesAgencies 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 WritingSpring 2011Institutional ValuesInstitutional 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 WritingSpring 2011Other CriticismsAgencies of the government struggle with customer service when they are charged with providing some service to the public (as opposed to policing).Getting your drivers license renewed.Dealing with the post office.Reasons? (Lots of debate.)Chronically under-funded?Dont have to compete in the marketplace? No incentive to provide good service if you cannot shop elsewhere.Administrative Policy WritingSpring 2011Other CriticismsAgencies make bad decisions or are beholden to one or another interest group.Reasons? (Again, lots of debate.)Welcome to politics!Agency capture?Administrative Policy WritingSpring 2011Agency CaptureAgency 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 WritingSpring 2011Agency CaptureRevolving 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 WritingSpring 2011Agency CaptureReal 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 WritingSpring 2011Checks on State Agency PowerWe dont like unaccountable government.This applies to state agencies, especially since their operation is largely removed from the voters.We dont 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 WritingSpring 2011Checks on State Agency PowerTheir executive powers are checked in several ways:Some executive department officers are elected directly by the people: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 WritingSpring 2011Checks on State Agency PowerTheir quasi-legislative power is checked in several ways:The legislature itself determines the scope of an agencys powers in the enabling statute.The courts decide whether an agencys 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 WritingSpring 2011Checks on State Agency PowerTheir quasi-judicial power is checked by the courts. State courts review agency enforcement decisions to determine whether the agencyacted within the scope of its authoritymade rational decisions based on evidenceand whether it violated individual rights (Ex: a nurse whose license has been revoked by the Nursing Board can seek judicial review of the Boards decision in state court: called a suit for judicial review).Administrative Policy WritingSpring 2011The Plural ExecutiveIn 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 WritingSpring 2011The Plural ExecutiveThe 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 WritingSpring 2011Why 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 engineeringthe storage and disposal of hazardous wastethe determination of how much sulfur dioxide can be emitted into the atmosphere by a chemical plant Administrative Policy WritingSpring 2011Why 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 WritingSpring 2011RulesWe 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 WritingSpring 2011RulesImportant 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 statutesagency rulesconstitutionscommon lawtreatiesThe 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 WritingSpring 2011RulesSo a point of terminology to keep in mind:Agencies adopt rules.Legislatures pass statutes.Both constitute the law.Administrative Policy WritingSpring 2011The Process of RulemakingWhen 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 WritingSpring 2011The Process of RulemakingTwo of the purposes of the APA:provide for public participation in the rulemaking process.ensure uniform practice and procedure for state agencies.Tex. Govt 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 WritingSpring 2011The Texas RegisterThe 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/texregThe Texas Register contains various public notices proposed agency rulesadopted ruleswithdrawn rulesopen meeting noticesexecutive orders and appointmentsand other information of general interest to the publicAdministrative Policy WritingSpring 2011Contents of a proposed ruleThe APA specifies a number of substantive requirements for proposed rules.A proposed rule must includea brief explanation of the rulethe text of the proposed rulea statement of the statutory authority for the proposed rulea fiscal note on how much the rule will cost the governmenta note about public benefits and costs for the rulea request for comments on the ruleothers

Authority to adopt the ruleText of the proposed ruleAdoption dateSummaryFiscal NotePublic benefits and costsRequest for commentsAdministrative Policy WritingSpring 2011Public Comment PeriodAfter 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 WritingSpring 2011Adoption or WithdrawAfter 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 agencys response to the comments it received.And a statement of the agencys authority to adopt the rule.

No commentsAdministrative Policy WritingSpring 2011The Texas Administrative CodeAfter 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 WritingSpring 2011

Administrative Policy WritingSpring 2011Texas Administrative CodeThe 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 subsectionsplace duties upon individuals or regulate activitiesusually begin with a section of definitionswritten to be unambiguous (hopefully!)Administrative Policy WritingSpring 2011PART IIA Closer Look at Agency Rules and the Enabling Statute

The Texas Midwifery Board

Administrative Policy WritingSpring 2011Example from the Midwifery BoardFirst 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 WritingSpring 2011Example from the Midwifery BoardNext, 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 WritingSpring 2011Example from the Midwifery BoardBy 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 WritingSpring 2011Example from the Midwifery BoardWho is a midwife?

Practices midwifery under the Act andHas met the requirements and standards of the BoardNotice how the rule uses the term midwife in a more restricted sense than everyday speech. What is midwifery?The practice of supervision/care/adviceconducting normal deliveryproviding newborn care

Administrative Policy WritingSpring 2011Example from the Midwifery BoardDo 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?Does he practice midwifery under the Texas Midwifery Act?Is he someone who has met the requirements of the Board?

Administrative Policy WritingSpring 2011Example from the Midwifery BoardLook 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 WritingSpring 2011Example from the Midwifery BoardLets take a look at the enabling statute for the Midwifery BoardThe 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 WritingSpring 2011The Texas Midwifery Act

Administrative Policy WritingSpring 2011The Texas Midwifery ActNear the beginning, there is typically some statement of purpose for the Act or legislative findings declaring the Legislatures intent in passing the statute.

Administrative Policy WritingSpring 2011The Texas Midwifery ActLike 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 appointedhow they can be removed, and so on.The Act will define the boards powers, including authority to adopt rules.

Administrative Policy WritingSpring 2011Texas Midwifery ActNotice the sunset review for the Board.

Administrative Policy WritingSpring 2011Texas Midwifery ActIf 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 WritingSpring 2011Texas Midwifery ActIn 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 WritingSpring 2011Questions? Comments?