Ken Paxton

Cumulative Subject Index
AG Opinions 1990-Present

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Adjudicative powers of county bail bond boardJC-0366
Administrative rule may not be inconsistent with the expression of the lawmakers’ intent in statutes other than those under which the regulations are issuedGA-0727
Advisory committee may not be set up by Department of Licensing and Regulation without statutory authority (Modified by Tex. Att'y Gen. Op. No. JC-0189 (2000))LO98-009
Advisory committee, rule-making duties of and relationship to state boardLO96-050
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)JC-0189
Agency orders, when void Authority of agency to reopen orders that have become administratively final GA-0505
Agency rule exempting short-duration programs from child-care facility licensing requirement is invalid as inconsistent with section 42.041, Human Resources CodeGA-0649
Agency's reasonable interpretation of its statute is entitled to deferenceGA-1009
An administrative agency can adopt only such rules as are authorized by and consistent with its statutory authorityGA-0845
An administrative agency may adopt only such rules as are authorized by and consistent with its statutory authority Determinative 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 Whether rules are in harmony with the general objectives of the relevant statute is determined through statutory construction Department 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 statuteGA-0815
An agency's reasonable construction of its rule is entitled to deferenceGA-0390
Authority to hear liquor license applications, district clerk or county commissioner are county officers to whom county judge may delegateLO98-030
Board of Examiners of Psychologists rule must not be inconsistent with relevant statuteKP-198
Board of Medical Examiners, authority to prohibit by rule physician advertising containing testimonialJC-0342
Board of Medical Examiners, validity of Board's construction that only domestic nonprofit corporations may be certified as nonprofit health organizationsJC-0304
Burdens, conditions, or restrictions that exceed those in relevant statutes, agency rule may not imposeJC-0298
Businesses owned by disabled persons as "historically underutilized businesses," General Services Commission lacks authority to promulgate rule deemingDM-0328
Comptroller's regulation regarding valuation methods for calculating "net to land" in determining appraised value of open space land, validity ofDM-0355
Councils of government as units of general local government for purpose of HUD's HOME ProgramGA-1037
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 languageKP-115
Department of Agriculture may not add burdens, conditions, or restrictions beyond those imposed by statuteKP-193
Disciplinary proceedings against licensee indicted but not convicted of felony, a state board may not bringDM-0068
Effective date of amendments by Parks and Wildlife Commission to title 31, chapter 65, subchapter T of the Administrative CodeLO98-056
Ex officio board members with no voting power should not be counted in determining quorumDM-0160
Ex parte communications by Water Commission hearings examiner in contested case about hazardous waste permit, statutory prohibition againstDM-0144
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 supplementsJC-0445
Funeral Service Commission, authority to register and investigate cemeteries and crematories and to require cemeteries or crematories to submit consumer disclosure documentsJC-0550
Funeral Service Commission, authority to regulate cemeteries and crematories owners or operators registered with the CommissionJC-0512
Hearing instruments, rulemaking authority to establish criteria for fitting and dispensing of by nonindividual persons such as corporations or partnershipsLO95-009
Hearings officer, Board of Educator Certification may choose to employ in-house hearings officers with sole duty of hearing contested cases or to use officers of State Office of Administrative HearingsLO97-105
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 involvedGA-0845
Internal Auditing Act, application to state agenciesJM-1183
Legislator may represent a person in administrative license revocation hearing only if legislator has previously represented person in criminal proceeding arising out of same factsGA-0170
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 offensesGA-1065
Newly registered alarm installers, authority of Private Security Board to adopt rules concerning activities ofGA-0409
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.KP-033
Professional title, Board of Chiropractic Examiners is authorized to promulgate rule permitting its licensees to use the title "chiropractic physician"JM-1279
Properly promulgated agency rule has force of law and binds other state entitiesJC-0003
Regulations construed using the same principles of construction as statutes, and a reasonable construction by the agency that promulgated the rules is entitled to deferenceGA-0692
Requirement that funeral establishment have embalming preparation room is statutory, and Funeral Service Commission cannot exempt certain establishments by ruleLO98-014
Requirements additional to those set forth in statute, an administrative agency may not imposeGA-0234
Rule contrary to statute regarding qualifications for licensure, state agency has no authority to adoptGA-0020
Rule disciplining chief administrators of law enforcement agencies, Commission on Law Enforcement Standards and Education may not promulgate where statute imposes no duty on administratorsLO96-070
Rule inconsistent with legislative directives, agency may not promulgateLO96-036
Rule issued by administrative agency is invalid to the extent of inconsistency with statuteLO96-102
Rule making authority of Natural Resource Conservation Commission under statute regulating on-site sewage disposal facilitiesJC-0020
Rule of Texas Commission on Private Security regulating uniformed motorcycle escort services that perform traffic control and traffic safety functions is not authorized by statuteGA-0008
Rule prescribing requirements for reciprocal licensing of funeral directors and embalmers, Funeral Service Commission may not adoptLO98-108
Rules applying same licensure and other requirements to peace officers and public security officers, authority of Commission on Law Enforcement Officer Standards and Education to adoptLO94-015
Rules are construed in the same way as statutesGA-0240
Rules, Administrative agency is bound to follow unambiguous language of agency's ownGA-0290
School district's expenditure for a scholarship program under article III, section 52(a)KP-204
Special education due process hearing, pursuant to subsection 81.101(a) of the Government Code a non-attorney may not practice law at aGA-0936
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.GA-0987
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 GA-0742
Ultra vires, agency rule is to extent it authorizes personal-care facility to offer services beyond those authorized in statuteJC-0072
Administrative Procedure Act
Agency statements concerning internal management of agency are not rules within Act and may be included in policy lettersJC-0265
Court Reporters Certification Board is not subject to the ActDM-0142
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 legislationGA-1045
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 seekGA-0233
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 SOAHDM-0231
Memorandum of understanding between state agencies regarding services to deaf persons must be adopted as rule by each agencyLO90-003
Motions adopted by Board of Trustees of Employees Retirement System, if subject to the ActLO93-066
Rule, nonsubstantive amendment of existing rule or rule that restates existing statute is under the Act and adopting agency must adhere to the Act's requirementsLO98-092
Standard of procedure may be rule under the ActLO98-092
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)DM-0249
Subpoena for patient's psychological records issued in administrative or judicial proceeding, psychologist's duty to comply withLO96-102
Delegation of Duties
Ambiguous statute, Court will accept a commission's construction of if regulation reasonably construes the statute and does not contradict the statute's plain languageJC-0164
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 givenJC-0324
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.KP-133
Delegation of legislative authority to public entity - court examines whether the Legislature established reasonable standards to guide the public entity in exercising such powers.KP-133
Deliberation and decision-making, bail bond board member's delegation of must be expressly authorizedJC-0428
Donations, administrative agency may solicit and accept only if expressly or implicitly authorized to do so by lawLO93-007
Exceeds statutory authority, agency that adds burdens, conditions, or restrictions to those imposed by statuteDM-0101
Exemptions to pollution-control statutes and rules, statute authorizing state agency to grant not an unconstitutional delegation of legislative authorityDM-0474
Private entity, statute incorporating codes promulgated by is presumed constitutionalJC-0012
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 statuteJC-0510
Regulation may not impose burdens, conditions, or restrictions in excess of or inconsistent with statuteDM-0201
School board member may not vote by proxy or delegate power to vote to another person at school board meetingLO94-028
Subdelegate statutory responsibility to staff, Board of Health may notJM-1169
Taxes, county tax assessor-collector's approval of interlocal contract to collectLO98-085
Texas Automobile Insurance Plan, rule vesting amendment power over in group of private insurers is unconstitutional delegation of legislative authorityDM-0135
Viatical settlements, constitutionality of statute authorizing Department of Insurance to regulateDM-0314
Water Commission, rule-making delegation to does not violate Texas ConstitutionDM-0054
Health and Human Services Commission
Funding and provision of health care services covered by Medicaid; 2 models, the traditional model and the managed care modelGA-1089
Medicaid, Health and Human Services Commission rule for payment of Medicare deductibles and coinsurance for services provided to persons eligible for both Medicare and MedicaidGA-0983
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 individualsGA-1089
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 individualsGA-1089
Occupational and Professional Licenses
"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 CommissionKP-107
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 licenseKP-107
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 factsKP-107
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 licenseKP-107
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 CodeKP-107
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 gamblingKP-107
Secretary of State's authority to enforce notary public's duty to provide copies of entries in the notary public record book upon proper requestGA-1095
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 licenseKP-080