Legal Research Process

Agencies are charged with the implementation and administration of law. An administrative agency may be known as a board, commission, agency, or office. In Texas, only certain agencies are under direct authority of the governor; others are under the authority of independently elected executive officers as part of state system of "plural executive." Agency authority must be delegated to the agency by the legislature. This delegation is done by an "enabling statute" or a constitutional provision. Agency activity includes rule making, performing internal executive functions, and adjudicating disputes regarding the violation of rules. 

Regulations in Texas are promulgated pursuant to Texas Administrative Procedure Act, codified in chapter 2001 of the Texas Government Code. It is the state counterpart to the federal Administrative Procedure Act from 1946. Prior to this act, passed in 1975, enabling statutes set procedures for each agency. 

The purpose of this act is to

(1) provide minimum standards of uniform practice and procedure for state agencies;

(2) provide for public participation in the rulemaking process; and

(3) restate the law of judicial review of state agency action." § 2001.001.

This act defines a rule as "a state agency statement of general applicability that;

(i) implements, interprets, or prescribes law or policy' or

(ii) describes the procedure or practice requirements of a state agency." § 2001.003(6)(A).

The process of issuing rules includes:

1. Notice of Proposed Rule in the Texas Register  (Tex. Gov't Code § 2001.023)
   • A state agency must provide at least 30 days notice of its intention to adopt a rule before it adopts the rule. 
   • A state agency must file notice of the proposed rule with the secretary of state for publication in the Texas Register. 
   • According to Tex. Gov't Code § 2001.024(a), the notice must include:  
     • A brief explanation of the proposed rule
     • The text of the proposed rule
     • A statement of the statutory or other authority under which the rule is proposed to be adopted
     • A fiscal note 
     • A note about public benefits and costs 
     • The local employment impact statement, if required
     • A request for comments on the proposed rule from any interested person 
     • Any other statement required by law
   • A note on the format of proposed rule:
     • Unlike on the federal level, when amending any part of an existing rule, the deleted language must be bracketed and stricken through, and new language must be underlined. If a proposed rule is new or if it adds a complete section to an existing rule, the new language must be underlined.
2. Public Comment (Tex. Gov't Code § 2001.029)
   • Before adopting a rule, a state agency must give all interested persons a reasonable opportunity to submit data, views, or arguments, orally or in writing.
   • A state agency must grant an opportunity for a public hearing before it adopts a substantive rule if a public hearing is requested by at least 25 persons, a governmental subdivision or agency, or by an association having at least 25 members. 
   • A state agency must consider fully all writing and oral submission about a proposed rule. 
     • Example of comments portion of agency site: HHS
   • Note, the proposed rule includes information about how to submit comments, and the adopted rule contains information about who submitted comments and the responses to those comments. 
3. Notice of the Adopted Rule in the Texas Register (Tex. Gov't Code § 2001.033)  
   • An adopted rule must include: 
     • a reasoned justification for the rule as adopted consisting solely of:   
       • (A) a summary of comments received from parties interested in the rule  that shows the names of interested groups or associations offering comment on the rule and whether they were for or against its adoption;
       • (B) a summary of the factual basis for the rule as adopted which demonstrates a rational connection between the factual basis for the rule and the rule as adopted; and 
       • (C) the reasons why the agency disagrees with party submissions and proposals;
     • a concise restatement of the particular statutory provisions under which the rule is adopted and of how the agency interprets the provisions as authorizing or requiring the rule; and
     • a certification that the rule, as adopted, has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
   • Note, the text of the final rule does NOT have to printed in the notice of the adopted rule. Unless there are changes, the rule text is not reprinted in the notice of the adopted rule. 
4. Adopted Rule Codified in the Texas Administrative Code  

Emergency Rules: An Exception the Process 

• See this guides box on Emergency Rules within the Texas Register page. 

Agencies impact Texans' lives in many ways, especially through the creation of regulations. There are regulations for interior designers, barbers, cat and dog breeders, bar owners, bingo workers, etc. Many industries are impacted by regulations like health care, oil and gas, agriculture, banking, insurance, etc. As a legal researcher, it is important to know about the regulations that affect your legal practice area, know how to find them, and stay up-to-date regarding changes. 

Any given area of law may involve statutes, regulations, and/or case law. These three types of primary law exist on both the federal and state level. Figuring out what primary law is on point to your particular issue can be difficult, which is why it is important to look for secondary sources first that pull relevant authority from all three branches of government, on both a federal and state level. 

Of the three kinds of primary law to turn to after surveying secondary sources, it is usually best to research regulations after statutes, but before case law. Statutes provide the authority for agencies to create regulations whereas courts are called upon to interpret both statutes and regulations.

By this point in your research, you may already have citations to regulations from secondary sources or from researching statutory law. It is at this stage in the research that you will want to turn to regulatory sources to confirm that you have located all relevant regulations or to confirm that in fact  your question does not involve regulatory law.

Regulations are available in print and online. Online sources include both free, such as from the Secretary of State's website, and commercial, such as from Lexis, Westlaw, and Bloomberg. See this guide's individual subpages for further detail.