Texas Tech Administrative Law Journal

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    Case Law Update
    (Texas Tech Administrative Law Journal, 2007) Benjet, Bryce; Pearsall, Patrick; Vandiver, Leigh; Kraatz, Megan; Hall, Zachary; DuBose, David; Dinsmoor, Claire; Beavers, Alessandra
    Includes many of the administrative law cases decided between August 2006 and July 2007. This is not an exhaustive review of all administrative law cases, and these synopses do not exhaustively cover all issues being raised by cases. Chosen cases are representative of issues being raised in Texas courts and highlight the most salient points of the cited cases. The cases are divided by the following categories: agency authority, jurisdiction and venue, standing, exhaustion remedies, immunity, evidentiary sufficiency, insurance, tax, worker’s compensation, public utility commission, water and miscellaneous.
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    Where Agencies, The Courts, And The Legislature Collide: Ten Years Of Interpreting The Texas Constitutional Provisions For Home Equity Lending
    (Texas Tech Administrative Law Journal, 2007) Graham, Ann
    Explores what has happened with home equity law and regulations over the past ten years. A recurring theme has been, and remains, the legal tension between the practical necessity for administrative guidance and the vulnerability of agency interpretations to judicial challenges. After examining the development of constitutional home equity authorization and restrictions, this article highlights current unresolved issues in home equity lending. Finally, the article considers the Texas home equity borrower protections in light of the subprime mortgage problems and high foreclosure rates dominating today's financial news.
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    What Every Practitioner Should Know Prior to Practicing before SOAH: The SOAH Rules of Procedure as Compared to The Texas Rules of Civil Procedure
    (Texas Tech Administrative Law Journal, 2008) Laski, Mary
    Introduces the SOAH rules to those unfamiliar with the practice of Texas administrative law and addresses several of the differences between the SOAH Rules and the TRCP. It doesn’t exhaustively cover all SOAH Rules. It excludes chapter 159 about administrative license revocation hearings, and it doesn’t include the procedure for contested TCEQ matters. It specifically discusses a majority of SOAH Rules found in chapter 155 of the Texas Administrative Code. It begins with the reasoning behind the SOAH Rules. Next, the differences between the SOAH Rules and the TRCP are organized by the procedural phase of the case. It provides alternatives to hearings at SOAH, and concludes by reminding practitioners to be conscientious of the differences between SOAH and the TRCP and to make sure that they have also abided by agency-specific rules.
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    UDJA Declaratory Judgments in Texas Administrative Law
    (Texas Tech Administrative Law Journal, 2008) Schenkkan, Pete
    Addresses 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.
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    The Texas Open Meetings Act: In Need of Modification or All Systems Go?
    (Texas Tech Journal of Texas Administrative Law, 2008) Duncan, Mandi
    Outlines the background of TOMA and explains the current state of the law in Texas. This article also examines Ranga v. Brown—where challengers claimed TOMA was unconstitutionally vague, overbroad, and violated the First Amendment. It samples various open meetings acts from California, Illinois, Kansas, and Utah. Finally, it provides possible revisions for the TOMA, and it requests that those revisions include specific violation examples. The author urges that modifying TOMA would prevent future violations and unfettered prosecutor discretion.
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    Texas Administrative Procedure Act Section 2001.176: Justification and Necessity for Specialized, Local Administrative Appeals Courts
    (Texas Tech Journal of Texas Administrative Law, 2007) O'Dell, Shane
    Focuses on section 2001.176 of the APA and its effect on those governed by the decisions, specific problems within the procedural process, and a few plausible and cost-efficient solutions. It provides an explanation of the persons affected, evidence of the recent growth and popularity of administrative agencies, an examination of some of the provisions in the APA, and a brief review of the relevant legislative history. Further, it gives possible explanations for the provision to provide some enlightenment on the problems, unreasonable burdens, and difficulties created by section 2001.176. It explores the Texas venue statutes to demonstrate how administrative appeals violate general venue provisions. Finally, it presents a series of possible solutions for efficient and effective Texas Administrative law.
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    Re-Defining the "Affected Person": The Contested Case Process for Permits Granted by the Texas Commission on Environmental Quality
    (Texas Tech Journal of Texas Administrative Law, 2007) Jumper, Russell
    Argues that the TCEQ should recognize the interests of future generations during the permit granting process. It provides a basic explanation of the permit application process and it discusses the process used to contest a granted permit. It thoroughly discusses whom the TCEQ allows to contest a permit. And finally, it analyzes other areas of law where the interests of future generations are represented, and demonstrates why it is practicable and logical that the TCEQ should recognize the interests of future generations during the permit process.
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    Is BACT Getting Cut Back?: A Look at the Requirements of the Clean Air Act in the Wake of a Possible Energy Crisis, the Desire for Clean and Efficient Energy Suppliers, the Futuregen Project, and Txu's Proposed Plants
    (Texas Tech Journal of Texas Administrative Law, 2007) Edman, Ellie
    Discusses decisions that the TCEQ faces with TXU permits for new coal plants in Texas. It addresses how TXU is required to meet Clean Air Act standards, which requires the use of BACT. Further, it explains how the TCEQ must balance the demands from various interested parties, including Mayors across Texas, Environmental Defense, Blue Skies Alliance, and the Sierra Club. It discusses the new proposed energy technology—Integrated Gasification Combined Cycle (IGCC), and TXU’s proposed Selective Catalytic Reduction technology. It reports how Governor Perry is responding to the energy crisis and how his fast-track order was publically received. Finally, this comment discusses what factors TCEQ should consider before issuing its decision, why TXU needs to prove the technical practicability of SCR, and how IGCC is currently winning in technical practicability.
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    "Good Moral Character" as a Licensing Standard
    (Texas Tech Journal of Texas Administrative Law, 2008) Craddock, Larry
    Explores the use of good moral character as a licensing standard, primarily in the context of the Mortgage Broker License Act, in Chapter 156 of the Texas Finance Code. It addresses the similarities and differences between the good moral character standard and the standard for granting or denying a license under Chapter 53 of the Texas Occupations Code. It covers a pattern of denied license applications based on false information, drug trafficking offenses, deadly weapons or firearm offenses, or a string of petty offenses indicating an irresponsible attitude toward the law. It explains some factors that are held to evidence good and bad moral character, and which factors should never be considered in making moral character determinations.
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    Drunk with Power: Does the TABC Know Which Lines to Stay between?
    (Texas Tech Journal of Texas Administrative Law, 2008) Taylor, Andy
    Examines the history, development, breadth of power, and effectiveness of the TABC. It covers the creation of the TABC, the purposes behind the TABC, and the current mission of the TABC. It discusses the administrative structure of the TABC, and the three-tier system of regulation that divides sellers of alcohol into three types of vendors: producers or manufacturers, distributors or wholesalers, and properly licensed retailers. It addresses how this three-tier structure is an efficient way to collect taxes, and explains how consumers purchasing alcohol over the internet and the globalization of the marketplace call into question its effectiveness. Further, this comment articulates the ways that the Twenty-first Amendment and the Commerce Clause conflict, and how the TABC faces constitutional challenges over its regulations promulgated under the provisions in the AB Code. Next, it covers some recent constitutional decisions and future challenges that the TABC faces. Lastly, it provides recommendations for the TABC, including rewriting or amending the AB Code and finding new ways to keep up with technology to adequately regulate the alcoholic beverage industry and continue collecting tax revenues.
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    Does the Open Beaches Act Seek to "Take" Private Property for Public Use Without Just Compensation?
    (Texas Tech Journal of Texas Administrative Law, 2007) Fasoyiro, Laurencia
    Provides an overview of the Open Beaches Act in Texas. It addresses whether the removal of houses from the public beach as authorized by the OBA constitutes a taking without just compensation. It analyzes how the OBA does not transfer physical control of the property to Texas and that the OBA does not interfere with the Homeowner’s Investment-Backed expectation. Further, it describes how the OBA is a valid exercise of Texas’s Police Power; it uses reasonable means to abate the nuisance on beaches; it enforces the public’s right of easement; it enforces a statewide policy.
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    Caution! T.Boone Pickens Plans to Permanently Alter Texas's Landscape above and below Ground, from the Panhandle to Metropolis
    (Texas Tech Journal of Texas Administrative Law, 2008) Arrott, Nicholas E.
    Addresses how T. Boone Pickens plans to use a fresh water supply district to supply water from the Texas Panhandle’s portion of the Ogallala Aquifer to a major metropolitan area in need, and provide alternative wind energy to that area. This comment explains the administrative regulations that a fresh water supply district must comply with and clarifies the other administrative agencies that a fresh water supply district must answer to in order to gain the ability to transfer groundwater from the Texas Panhandle to a metropolitan area. It explores the breadth and limitations on a fresh water supply district’s power of eminent domain as it will attempt to condemn property from landowners in Texas to lay a water pipeline from the Texas Panhandle to a metropolitan area. Finally, it explains how Pickens will be able to use his fresh water supply district to not only supply fresh water, but also to supply wind energy from the Texas Panhandle to a major metropolitan area.
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    Case Law Update
    (Texas Tech Journal of Texas Administrative Law, 2007) Benjet, Bryce; Pearsall, Patrick; Leigh, Vandiver; Zachary, Hall; David, DuBose; Claire, Dinsmoor; Alessandra, Beavers
    Update includes many of the administrative law cases decided between August 2006 and July 2007. This is not an exhaustive review of all administrative law cases, and these synopses do not exhaustively cover all issues raised by cases. Chosen cases are representative of issues being raised in Texas courts and highlight the most salient points of the cited cases. The cases are divided by the following categories: agency authority, jurisdiction and venue, standing, exhaustion remedies, immunity, evidentiary sufficiency, insurance, tax, worker’s compensation, public utility commission, water, and miscellaneous.
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    State-Federal Partnerships in Immigration Enforcement: Is the Trend Right for Texas?
    (Texas Tech Journal of Texas Administrative Law, 2007) Hobbs, Christie
    This comment focuses on Senator Hutchinson’s and other proposals which integrate federal authority with state and local resources to address the growing problem of illegal immigration. It juxtaposes the voluntary border marshal program with pilot programs in Florida, Alabama, and Arizona developed under section 287(g) of the Immigration and Nationality Act. This comment discusses which powers regarding immigration enforcement are reserved to the federal government and which are provided to the states. It explores the role of the Texas Office of State-Federal Relations in shaping Texas’s role in developing immigration policy. Finally, this comment outlines the roles that Texas agencies currently play in immigration enforcement and the impact that certain proposals might have on those agencies.
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    Regulating the Practice of Dentistry in Texas
    (Texas Tech Journal of Texas Administrative Law, 2007) Krueger, Vernon
    This article discusses the requirements necessary for board membership as well as the board’s powers and duties. It provides an overview of the requirements for licensure and mandatory practice provisions established by the board. It examines the procedures governing grievances, complaint investigations, and sanctions. It discusses the penalty provisions under both the board rules and the Texas Occupations Code. The scope of this article is limited to the regulation of dentists and will not address regulation of dental assistants, dental hygienists, or dental laboratories. This article summarizes the ways that the regulations place every dentist in Texas at risk of violating one or more of the rules due to the voluminous requirements, and in some instances, confusing language or interpretations given to the rules by the Board.
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    Meeting Texas Infrastructure Needs in the Face of a Burgeoning Population and Declining Tax Revenues: The Trans-Texas Corridor
    (Texas Tech Journal of Texas Administrative Law, 2007) Snow, Clinton R.
    This comment addresses innovative alternatives for financing the state’s roadway infrastructure needs, in the face of tax revenues waning and the demand for transportation infrastructure proliferating. First, it covers the intended purposes of the Trans-Texas Corridor (TTC), as envisioned by the TxDOT—to increase safety, improve traffic flow, and to facilitate economic development. Next, it analyzes the positions of those who argue that the TTC is the wrong solution to Texas’s transportation issues. It provides a legislative background before discussing the alternative methods that the TxDOT has pursued as it begins to plan and construct the TTC. Lastly, it discusses the available financing for the TTC with the State Highway fund, the State Infrastructure Bank, and the Texas Mobility Fund; and how these sources are insufficient to support the projected growth of the state’s population in the coming years.
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    Lord of the PEIMS: There is No Fellowship Between the Twin Towers of Accountability and Local Control
    (Texas Tech Journal of Texas Administrative Law, 2007) Reuthinger, David L. Jr.
    This comment explores the ever-shifting administrative definition of PEIMS, the system’s relevance to contemporary public education issues, and the compatibility of the system with the state and federal constitutions. It begins with a brief history of the Public Education Information Management System, and the statutory basis for it. Overall, it focuses on the expansive power of the Commissioner of Education without independent oversight. It explains the tension between local school districts and the Texas Education Agency over their ideological differences—local control v. centralized, state governed accountability. It discusses why PEIMS is viewed as essential to the No Child Left Behind Act. Finally, it expresses concern over how huge PEIMS is becoming and will become in the hands of the unchecked Commissioner of Education, and suggests that citizens should push for accountability and a new task force to evaluate PEIMS.
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    Is the TCEQ "Hearing" Impaired?: The Impact of City of Marshall v. City of Uncertain on the Availability of Contested-Case Hearings for Water Use Permit Amendments
    (Texas Tech Journal of Texas Administrative Law, 2007) Howell, Emily
    This comment examines the Texas Supreme Court’s decision in City of Marshall v. City of Uncertain, and analyzes the potential impact of this case on the relevant stakeholders: the administrative agency, permit applicants, and persona affected by the allocation permit. Post-Marshall, the TCEQ enjoys considerable latitude in its authority to determine when notice needs to be issued and whether to grant or deny hearing requests in contested amendment cases. First, this comment commences with an overview of Texas water law all the way from water rights under Spanish and Mexican authority to recent legislation. It explains the process for obtaining water appropriation permits, and designates the controlling agency. Further, this comment discusses how the TCEQ might be more susceptible to litigation, and why the TCEQ must balance administering water permits with maximum efficiency while ensuring affected persons a forum for concerns related to water appropriations.
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    HIPAA, The Privacy Rule, and the Texas Public Information Act: How Texas Health and Human Services Agencies Should Referee the Game of Exception Ping-Pong that These Laws Play
    (Texas Tech Journal of Texas Administrative Law, 2007) George, Dustin C.
    This comment addresses how the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Privacy Rule, and the Texas Public Information Act all affect Texas health and human services agencies and the valuable information they collect, create, and maintain during the course of their administrative duties. This comment explains the Abbott decision and examinees what that decision means for information seekers and information protectors in Texas. It also discusses how certain information protectors, primarily Texas health and human services agencies, should analyze public information request after the Abbott decision by focusing on the interaction between the seemingly conflicting state and federal laws that govern disclosure of valuable health information in Texas.
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    Environmental Regulatory Mediation
    (Texas Tech Journal of Texas Administrative Law, 2007) Soto, Gabriel P.
    This article evaluates the history and the origins of environmental mediation, the structure and strategy of an environmental mediation, environmental mediation through the Foothills Case Study, and mediations in an administrative setting. This article structure and strategy section addresses: first impressions and avoiding bias, equal participation and resource sharing, establishing trust, avoiding battling experts, maintaining confidentiality, including necessary settlement parties, impasse techniques, alternatives to negotiated agreements, and how to preserve relations after mediation. It also discusses the basics of a Water Utility administrative hearing, administrative ADR, mediation pitfalls, and the process of formalizing a settlement agreement. Lastly, this article summarizes when environmental mediation is appropriate and how all three types of parties—mediator, participants, and attorneys, must work together to achieve environmental settlements.