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Researching Texas Law: Administrative Rulemaking & Agency Procedure

Assists users in researching Texas agency rulemaking and regulatory issues.

Introduction to Administrative Rulemaking & Procedure

What is an agency & why is it important?

Agencies are quasi-legislative/quasi-executive/quasi-judicial bodies, usually established either through legislation or via executive action. They are called by many different names, including commissions, boards, agencies, councils, etc. For a list of all Texas state agencies, see here.

Agencies issue governing rules on many issues that affect the everyday lives of citizens. Agency rules that are issued within the scope of their statutory authority have the force of law until and unless the Legislature or a court overrides the rule or rescinds the authority.

Texas has a very powerful administrative state, for several reasons:

  • A historical distrust of centralized government encouraged delegating administrative duties to local governments and elected officials, instead of agencies appointed and controlled by the state.
  • Political considerations and the desire to avoid upsetting constituents encourage elected lawmakers to create agencies, which are more insulated from criticism and accountability. In addition, if problems do arise, they make great scapegoats.
  • It's easier for agencies to make changes as needed than for the Legislature to have do it when they meet every two years. Agencies are expected to handle the bulk of day to day enforcement of state laws, with the Legislature intervening only as needed. Given the rapid growth of the administrative state, this relieves the Legislature and the courts of some of the burdens of legislating on and resolving disputes over all the things that are now regulated.
  • Some lawmakers are concerned about keeping up with the federal government. The federal administrative state is expanding rapidly, and there are fears that if the state does not step up and create its own rules, federal agencies will step in and take over.

What do agencies do?

Agencies are often called the "fourth branch", because they take over some of the functions of all three of the other branches of government in the following ways:

  • Legislative functions: Agency rulemakers promulgate regulations under statutory authority. These regulations have the force of law, but are not actual laws - only the state legislature can pass statutes. Agency rules are always subordinate to legislatively-passed laws and the legislature may rescind an agency's rulemaking authority at any time.
  • Judicial functions: Investigators and administrative law judges employed by agencies are empowered to investigate agency rule violations, bring violation or enforcement cases, resolve disputes, and impose civil punishments. They cannot, however, bypass the criminal justice system and criminally prosecute individuals outside of the regular court system.
  • Executive functions: Agency leaders set policy and enforcement priorities, issue guidance, and interpret their agency's enabling statutes and regulations. Since agency regulations have legal force, these leaders have the equivalent of executive authority to determine state legal priorities.
  • The Attorney General: the state attorney general's office is a special kind of agency that will be discussed further later in this guide.

The Sunset Review Process

As required by Texas Government Code chapter 325, the Texas Sunset Advisory Commission reviews every state agency for obsolescence on a rotating schedule. Educational institutions are exempt from review. The Commission recommends to the Legislature that the agency either be retained (in which case it will go through the review process again after several years) or abolished. These recommendations are non-binding, but must be followed up by legislative action affirmatively reauthorizing the agency (called "sunset bills"). If the Legislature fails to introduce or pass a sunset bill reauthorizing an agency, that agency is automatically abolished.

All of the Sunset Advisory Commission's reports and working documents, including agency submissions & final Commission reports, are available online.