Earlier this year, the Texas Supreme Court issued an opinion outlining the definition of a “rule.” El Paso Hospital Dist. v. HHSC, 247 S.W.2d 709 (Tex. 2008). The Court stated, “a presumption favors adopting rules… through the formal rule-making procedures.” This case supports the premise that agency action may be invalidated if it isn’t backed by a rule crafted through the formal rule-making process. When an agency fails to follow all of the required rule adoption procedures, because it doesn’t recognize what constitutes a rule or any other reason, the agency risks invalidating its actions. In order to adopt a rule, an agency must provide notice, publication in the Texas Registrar, and a public comment period. This safeguard is meant to assure that persons affected by the proposed rule have an opportunity to be heard. On that note, House Bill 3430 now requires an agency to consider the economic impact of its proposed rule on small businesses.
If you’ve been cited for violation, take the time to verify if your actually breaking a “rule.”
