Texas Tech Administrative Law Journal
Permanent URI for this collectionhttps://hdl.handle.net/2346/72461
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Browsing Texas Tech Administrative Law Journal by Subject "Administrative Procedure Act"
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Item An Ace in the Hole & A Jack of All Trades: Recent Developments Affecting Sovereign Immunity & Pleas to the Jurisdiction(Texas Tech Journal of Texas Administrative Law, 2005) Boyd, Jeffrey S.The article summarizes recent developments in Texas law that affect the substantive doctrine of sovereign immunity and the procedural practice surrounding pleas to the jurisdiction and how both have strengthened the government’s position in litigation. It summarizes recent decisions, particularly those of the Texas Supreme Court, and pending issues that alter the way that government lawyers must approach these issues in their practice. These recent decisions almost unanimously find no waiver of sovereign immunity, and thus confirm that except in very limited circumstances, sovereign immunity remains an “ace in the hole” for governmental units. At the end of the article there are two charts for: “Does ‘Sue and be Sued’ or ‘Plead and Be Impleaded’ Waive Sovereign Immunity?, and What Type of Plea to the Jurisdiction Should I file?.Item Federal Courts Do the Two-Step While Texas Dances to a Different Tune: Judicial Review of Agency Rulemaking(Texas Tech Journal of Texas Administrative Law, 2001) Rosov, Suzy E.An overview of judicial review and deference to agency rulemaking and interpretation, using the “reasonable” principle applied in Chevron, as well as the “arbitrary and capricious” standard under the APA. The author explores the differences between the two different types of review and when they should be applied. The author then explains the Texas perspective of agency rule making and interpretation. In conclusion, the author mentions that while federal agencies seem to recognize to a greater extent the importance of public interest and accountability when considering stare decisis, Texas agencies appear to resist substantially changing agency policy without express legislative authority.Item Issuing a Proposal for Decision: An Analysis of the Power of an Administrative Law Judge in Rendering Proposed Findings in a Contested Case Proceeding(Texas Tech Journal of Texas Administrative Law, 2001) Beal, RonFocuses on the powers of an administrative law judge (ALJ) as granted by the Administrative Procedure Act (APA). The author explains that an ALJ has all power analogous to those of a district court judge when issuing a final order in a bench trial. The job of an ALJ entails more than basic fact finding. ALJs have a duty to determine the meaning and applicability of the law and to issue proposals for decisions that can withstand judicial scrutiny. The author notes that the APA and other relevant statutes intend the ALJ to stand in the shoes of the agency board or state officer and issue orders consistent with agency precedent.Item Justified Reasoning for Reasonable Minds: The Reasoning Behind Standards of Judicial Review of Administrative Decisions in Texas(Texas Tech Journal of Texas Administrative Law, 2000) Ornelas, Oscar JavierThis comment examines the development of Texas Judiciary’s authority to review administrative agency decisions and tracks the historical evolution of the different standards of review employed by Texas administrative agencies. This comment also reviews the evolution of the standards of review within the Texas Judicial System. The author concludes that the substantial evidence rule is ineffective to give citizens quality due process. The author suggests The Texas Supreme Court and the Legislature should cooperate in order to take preventative measures and reach a resolution to this serious problem.Item Nonlegislative Rulemaking: Is Texas Moving Toward the Federal Courts’ Perspective on Agency Policy Statements and Interpretive Rules?(Texas Tech Journal of Texas Administrative Law, 2003) Lannen, JustinThis comment examines nonlegislative rulemaking both under the federal system and in Texas. It begins by analyzing agency rulemaking powers and the role of nonlegislative rules in the administrative scheme. It covers the federal courts’ perspective on the distinction between nonlegislative and substantive rules, the developing perspective on nonlegislative rules by Texas Courts, and it suggests why and how Texas should move to a federal approach to nonlegislative rules.Item Reducing the Frequency and Impact of Procedural Challenges to Adopted Rules: The Legislature’s Direct Effort to Squeeze Out the Need for Court Interpretation of the APA(Texas Tech Journal of Texas Administrative Law, 2000) Pruett, KimberlyThis article discusses the amendment to the Texas Administrative Procedure Acts that adds a provision for courts to remand a rule to an agency if the agency has not substantially complied with the rule adoption procedural requirements. The article discusses two cases in which agencies were affected by the new rule. Lastly, the article points out that the new provision gives the courts less judiciary interpretation and the APA greater power by reducing the frequency and impact of procedural challenges to adopted rules.Item UDJA Declaratory Judgments in Texas Administrative Law(Texas Tech Administrative Law Journal, 2008) Schenkkan, PeteAddresses two Texas statutes that authorize declaratory judgments—the Uniform Declaratory Judgment Act (UDJA) and the Administrative Procedure Act (APA). First, it explains declaratory judgments in general, putting the Texas APA and the UDJA in the national declaratory judgment law context. It analyzes the 2007 Supreme Court decision, MedImmune, Inc. v. Genentech, Inc.. It addresses UDJA issues in Texas administrative law pertaining to statutory construction or statutory validity cases—focusing on pending or possible contested cases and the exclusive jurisdiction of agencies. Further, it briefly addresses the UDJA contract declaratory judgment actions in Texas administrative law.Item Use of Declaratory Judgments to Review Agency Action(Texas Tech Journal of Texas Administrative Law, 2006) Bailey, JamesThis article explains ways that the Uniform Declaratory Judgments Act (UDJA) and the Administrative Procedures Act (APA) provide additional and alternative remedies that go beyond the appeal provisions of the APA. It discusses how these provisions cannot be used to duplicate the appeal remedies under the APA, but how they can be used when dealing with agencies in cases where the APA affords no relief. It explains what courts have jurisdiction to render declaratory judgments under the UDJA, how it is different from the APA, and agency authority that challenges UDJA claims. Next, it discusses declaratory judgements under the APA. Finally, it provides strategic considerations through a comparison of pursuing declaratory judgments under the UDJA and the APA.Item Which Way is the Scale Tipped Now? The Shifting Balance of Power Between the Authority of Administrative Agencies and the State Office of Administrative Hearings Regarding Rulings in Contested Cases(Texas Tech Journal of Texas Administrative Law, 2003) Harlan, Nancy L.This comment reviews developments in the evolving relationship between the agencies and the State Office of Administrative Hearings (SOAH) administrative law judges (ALJs) regarding agency modifications of the ALJ’s findings of fact or conclusions of law expressed in a proposal for decision in a contested case or alternately, agency rejection of the proposal altogether. First, it reviews the mandate for independent ALJs and outlines the Administrative Procedure Act (APA) rulemaking process. Next, it analyzes the deference an agency must give to the SOAH ALJ proposal for decision and the standards that apply to changes to such a proposal an agency makes in issuing its final order in a case. Then, it examines amendments to agency rules which detail criteria for agency administrators to change a proposal decision from a SOAH ALJ. Finally, it focuses on one agency’s rules, court criticism of the board’s application of those rules, and the inherent conflict between the agency and the independent hearing examiner (ALJ).