State Bar of Texas Administrative and Public Law Section

Featured Article - June 1998

JUDICIAL DEFERENCE TO AN AGENCY'S INTERPRETATION OF ITS STATUTE:
THE DOCTRINE'S RATIONALE AND LIMITS

Download a WordPerfect version of this document (141K)

JUSTICE BEA ANN SMITH
Third Court of Appeals
P.O. Box 12547, Capitol Station
Austin, Texas 78711-2547

SUSAN G. ZACHOS
KELLY, HART & HALLMAN, P.C.
301 CONGRESS AVENUE, SUITE 2000
AUSTIN, TEXAS 78701

Originally prepared and presented for the

1997 ADVANCED ADMINISTRATIVE LAW CONFERENCE
September 25-26, 1997
Austin, Texas

TABLE OF CONTENTS

I. Introduction

II. Federal Judicial Deference and Chevron v. NRDC³

A. The Chevron Two-Step
1. The Chevron Standard
2. The Facts and Rationale for Chevron

B. In the Post-Chevron era, courts have not fully embraced the Chevron extreme deference standard.

1. Federal Court Deference to Federal Agencies
2. Federal Court Deference to a State Agency's Interpretation of Federal Law
3. Conclusion

III. Judicial Deference to an Agency's Interpretation of Its Statutes in Texas

A. The General Rule -- The "Serious Consideration" or "Great Weight" Standard

B. Historical Underpinnings and the "Butler factors"

C. Recent Texas Supreme Court Decisions on Judicial Deference to Agency Interpretations

1. Tarrant County Appraisal District v. Moore
2. Dodd v. Meno
3. State v. Public Utility Commission suggests an opening for extreme deference in Texas.
4. Summary of Recent Texas Supreme Court Decisions

D. Many lower court decisions in Texas rely on, but do not analyze, the Butler factors.

1. The First Butler Factor -- an Agency's Interpretation Is Only Legally Relevant for an Ambiguous Statute
2. The Second Butler Factor -- "Serious Consideration" and "Great Weight" Given to the Agency's Contemporaneous Construction
3. The Third Butler Factor -- the "Reasonableness" or "Not Contrary to Statute" Requirement

E. Integrating Another Rule -- Courts Review Agency Decisions on Questions of Law "de Novo"

F. Closing Comments

Table 1

Footnotes

A basic tenet of administrative law is that an administrative agency is a creature of statute; it has only those powers expressly conferred by statute and those necessary to accomplish its duties.⁽¹⁾ Once created, however, an administrative agency must interpret its enabling statutes to establish, develop, administer and enforce its regulatory programs. When a conflict arises, and the agency's actions are challenged in court, who should have the final say about statutory interpretation -- the courts or the agency itself? Almost every lawyer remembers from law school the resounding pronouncement made in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is."⁽²⁾ But that decision was reached when the country had only three branches of government. With the continued growth of the "fourth branch" of government -- the administrative branch -- deference to agency interpretation of law has become accepted; however, courts struggle with this encroachment on their authority and grant varying degrees of deference to an agency's interpretation of its implementing statutes. The justification given for the courts' deference is often the agency's expertise in a highly technical and specialized field, or the perception that the legislature intended to delegate policy development to the agency. This paper discusses the standards for judicial deference in the federal courts, and surveys Texas decisions reflecting standards for judicial deference.

II. Federal Judicial Deference and Chevron v. NRDC⁽³⁾

A. The Chevron Two-Step

1. The Chevron Standard

The most well-known judicial deference case may be Chevron v. NRDC.⁽⁴⁾ That case, decided by the U. S. Supreme Court in 1984, established a two-step test for deference to an agency's interpretation of law in the federal courts. The two steps are these. First, if the statute is unambiguous, it controls. The court "must give effect to the unambiguously expressed intent of Congress."⁽⁵⁾ Second, if the statute is ambiguous or silent, then the court asks whether the agency's interpretation is a "permissible" or "reasonable" construction of the statute. If so, the agency's interpretation is upheld. The court's description of the extreme deference to be accorded in this second step echoes the substantial evidence test:

In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.⁽⁶⁾

The Chevron court decided that, when Congress explicitly leaves a "gap" in the statutory program, it has expressly delegated the authority to the agency to "elucidate a specific provision of the statute by regulation."⁽⁷⁾ This delegation can be either explicit -- such as a statute that expressly requires the agency to flesh out the details of the regulatory program through rulemaking -- or implicit.⁽⁸⁾ Chevron created "an across-the-board presumption that, in the case of ambiguity, agency discretion is meant."⁽⁹⁾

2. The Facts and Rationale for Chevron

An overall picture of the competing forces in Chevron is essential to an understanding of its impact on judicial review of the actions of regulatory agencies.

Chevron involved a challenge to a 1981 U.S. Environmental Protection Agency rule reinterpreting the agency's definition of a "major stationary source" of air pollutants under the federal Clean Air Act. The controversy arose over whether EPA could apply the "bubble concept" when determining whether a modification would result in an increase in air emissions -- i.e., whether it could allow intra-plant offsets, and consider an entire plant to be a single source, rather than reviewing each of its components separately.

From 1970, when the Clean Air Act was adopted, until 1979, EPA applied the bubble concept in various situations.⁽¹⁰⁾ In a 1980 rulemaking, EPA adopted a "bright-line" rule that the bubble concept would apply only to programs designed to maintain air quality, but not to programs designed to improve air quality.⁽¹¹⁾ In promulgating that rule, EPA not only relied heavily on two U.S. Court of Appeals decisions that created the rule, but also expressed its own opinion that the dual definition was more consistent with congressional intent.⁽¹²⁾ In 1981, a new administration stepped in with an accompanying shift in policy. EPA changed its rules to apply the bubble concept to both types of programs -- those that maintain as well as those that improve air quality. In the new rule, EPA explained that the definition of "major stationary source" was not squarely addressed in either the statute or its legislative history and, therefore, involved agency "judgment as how to best carry out the act."⁽¹³⁾ It opined that the new definition would reduce confusion and inconsistency, remove disincentives to modernization and new investment, and accomplish the fundamental purpose of the Clean Air Act.⁽¹⁴⁾

Two environmental groups challenged the 1981 regulation as contrary to the statute, arguing for their own definition of "major stationary source." The D.C. Court of Appeals set aside the new regulation as "contrary to law," relying on its two prior decisions holding that the bubble concept should be applied in programs designed to maintain air quality but not in those designed to improve air quality. The United States Supreme Court reversed the court of appeals and upheld the regulation:

The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term stationary source when it had decided that Congress itself had not commanded that definition.⁽¹⁵⁾

The Supreme Court found that, once the court of appeals determined the absence of Congressional intent regarding the use of the bubble concept, the question before it was not whether, in the court's view, the concept was "inappropriate," but whether the agency's view -- that the concept was appropriate in the context of this particular program -- was reasonable.

In performing the first step of its analysis, the Court found that the language of the statute "simply does not compel any given interpretation of the term 'source.'"⁽¹⁶⁾ In other words, the statute was silent on the issue. Further, it found the legislative history "unilluminating," but "consistent with the view that the EPA should have broad discretion in implementing the policies" of the Clean Air Act.⁽¹⁷⁾ The Court then went on to the second step -- whether the agency's interpretation was reasonable.

In its review for reasonableness, the Court was not disturbed by EPA's shift in policy, but found a consistent pattern of flexibility in EPA's interpretations, considering the conflicting policies and technical nature of the statute:

Our review of the EPA's varying interpretations of the word "source" --both before and after the 1977 [Clean Air Act] Amendments--convinces us that the agency primarily responsible for administering this important legislation has consistently interpreted it flexibly--not in a vacuum, but in the context of implementing policy decisions in a technical and complex arena. The fact that the agency has from time to time changed its interpretation of the term "source" does not, as respondents argue, lead us to conclude that no deference should be accorded the agency's interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.⁽¹⁸⁾

Thus, even under the older principle that "long-standing agency interpretations are entitled to the most deference,"⁽¹⁹⁾ the Court deferred to the EPA's changing interpretation. Acknowledging the well-known and long-recognized fact that agencies act in a "technical and complex arena," the Chevron Court came to a new conclusion. It reasoned that agencies must be allowed some flexibility to develop and implement policies as necessary in an ever-changing world, finding that courts, which are subject to the rigidity of stare decisis, need only decide if an agency's interpretation is reasonable under the circumstances. Agency interpretations, the Chevron Court concluded, should not be "carved in stone."

The Court further found that policy choices are best left to the elected branches of government, who have a voting constituency, rather than to appointed judges.⁽²⁰⁾ "[F]ederal judges--who have no constituency--have a duty to respect legitimate policy choices made by those who do."⁽²¹⁾ Indeed, one of the major advantages to giving administrative agencies deference in statutory interpretations is to allow appropriate political participation in the administrative process; if it is within the range of discretion allowed by statute, perhaps the law should change "in light of new information or even new social attitudes impressed upon [the agency] through the political process."⁽²²⁾

Of course, "deference" does not mean the agency always has the final word; its action must be "reasonable." Under Chevron, when a court reviews an agency's construction of a statute, it is confronted with two questions. The first is whether the legislature has directly spoken on the question at issue: "If the intent of Congress is clear, that is the end of the matter; [because] the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."⁽²³⁾ Thus, before a court inquires into the reasonableness of the agency's action, it examines the statutory language itself. This requires some judicial discretion in finding "ambiguity" to determine whether to defer to the agency in the first place. As the Supreme Court has recognized, when questions of statutory interpretation are presented, "plain meaning, like beauty, is sometimes in the eye of the beholder."⁽²⁴⁾ Only where ambiguity exists, does the court proceed to the second step of determining whether the agency's interpretation is a reasonable construction of the statute.

In summary, the rule in Chevron is that, where Congress has not "directly spoken to the precise question at issue,"⁽²⁵⁾ and where "the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies,"⁽²⁶⁾ extreme deference should be accorded to the agency's interpretation.

B. In the Post-Chevron era, courts have not fully embraced the Chevron extreme deference standard.

1. Federal Court Deference to Federal Agencies

Before Chevron, disputes over agencies' interpretations of statutes were determined on a statute-by-statute basis.⁽²⁷⁾ In these case-by-case analyses, courts sometimes followed the standards articulated in Skidmore v. Swift & Co,⁽²⁸⁾ which held that a court should consider factors that bear on the persuasiveness of the agency's interpretation, such as the apparent thoroughness of the agency's consideration; the validity of its reasoning; whether the interpretation was consistent with earlier interpretations; and all other factors that give the agency the "power to persuade, if lacking power to control."⁽²⁹⁾ When the agency's interpretation reflected a longstanding and consistently-held position, courts generally accorded the agency's interpretation considerable deference,⁽³⁰⁾ although some authorities limited this deference to interpretations adopted in rulemaking but not in adjudication.⁽³¹⁾ The courts historically deferred to the agency when its expertise was critical to a full understanding of an interpretation's effect on a complex regulatory program. Chevron itself relies on some of these earlier cases involving agency expertise, referring to a "long recognized" rule that an agency's construction should be given "considerable weight" when a full understanding of policy implications "depend[s] upon more than ordinary knowledge respecting the matter subjected to agency regulations."⁽³²⁾

In this post-Chevron era, although the case has been cited over 4,000 times since its 1984 issuance,⁽³³⁾ the U.S. Supreme Court has not relied on the case as creating a bright-line rule; instead it continues to struggle with the judicial deference issue. Analyzing the various Supreme Court decisions on the subject, the U.S. Court of Appeals for the Sixth Circuit recently declared:

Quite frankly, the degree to which courts are bound by agency interpretations of law has been like quicksand. The standard has been constantly shifting, steadily sinking, and, from the perspective of the intermediate appellate courts, frustrating.⁽³⁴⁾

Some cases have retreated from the Chevron standard, relying on the earlier "persuasiveness" standards developed in Skidmore v. Swift & Co.⁽³⁵⁾ and other pre-Chevron cases.⁽³⁶⁾ In Immigration and Naturalization Service v. Cardoza-Fonseca,⁽³⁷⁾ decided only three years after Chevron, the Supreme Court disapproved of the rationale put forth in Chevron that an agency should be allowed to vary its interpretations and evaluate the wisdom of its policies on a continuing basis.⁽³⁸⁾ In declining to defer to the agency's interpretation, the INS Court commented that an agency's statutory interpretation that "conflicts with the agency's earlier interpretation is 'entitled to considerably less deference' than a consistently held agency view."⁽³⁹⁾ In Leachmere v. NLRB,⁽⁴⁰⁾ the Court acknowledged that an agency is entitled to judicial deference when "it interprets an ambiguous provision of a statute that it administers," but noted that, before granting deference, a court must determine whether the agency's interpretation is consistent with prior judicial interpretations:⁽⁴¹⁾

Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning.⁽⁴²⁾

Noting that it had previously interpreted the statute, the Court applied the doctrine of stare decisis and refused to defer because the agency's interpretation conflicted with the court's prior determination of the statute's "clear meaning."⁽⁴³⁾ So goes the continuing struggle of the federal courts to deal with judicial deference to federal agencies.

2. Federal Court Deference to a State Agency's Interpretation of Federal Law

In addition to considering judicial deference to a federal agency's interpretation, federal courts are sometimes called on to consider whether deference should be afforded to a state agency's interpretation of federal law. The administration of many federal programs is, or can be, expressly delegated to the states by federal statute -- for example, the Underground Injection Control program under the Safe Drinking Water Act, the State Implementation Plans required under the Clean Air Act, and the National Pollutant Discharge Elimination System program under the Clean Water Act. Where a state is entrusted with implementation of federal law, some courts have found that the state's interpretation is entitled to deference.⁽⁴⁴⁾ Other courts have held that state agencies are not entitled to the Chevron deference accorded a federal agency, but may be accorded deference under the arbitrary and capricious standard once the court determines that the agency has met all the requirements of federal law.⁽⁴⁵⁾ One court has reasoned that a distinction in the amount of deference given is merited because the direct and continuous supervision of Congress is absent when state authorities implement the regulatory program.⁽⁴⁶⁾ A bright-line rule on this issue probably is not appropriate because all the different federal programs administered by the states involve tremendous variation in federal oversight available, state agency expertise developed, and the extent to which state power is delegated to effectuate the goals of the federal statute.

3. Conclusion

In summary, although the Supreme Court appears to have stated a clearly-articulated and well-reasoned rule in Chevron, the rule has not produced the consistency in the law that one might expect. This lack of consistency and the resulting consternation have produced interesting commentary:

In both the pre-Chevron and post-Chevron decisions, there has been a discrepancy between the Court's deference rhetoric and its actions. When the Court wants to defer, it writes opinions emphasizing the importance of giving deference. In addition, it sometimes makes strong statements about the authority of agencies to alter their interpretations, and to depart from prior judicial interpretations. When the Court does not wish to defer, it ignores or limits its prior statements.⁽⁴⁷⁾

[I]t is harmless enough to speak about "giving deference to the views of the Executive" concerning the meaning of a statute, just as we speak of "giving deference to the views of the Congress" concerning the constitutionality of particular legislation -- the mealy-mouthed word deference not necessarily meaning anything more than considering those views with attentiveness and profound respect, before we reject them.⁽⁴⁸⁾

Federal standards governing judicial deference to an administrative agency's interpretation of the statutes it administers remain elusive. However, the separation of powers principle set out in Marbury v. Madison has not changed. The courts still seem to have the final say -- it is still ultimately and "emphatically" within the "province and duty" of the courts to decide "what the law is." Because the courts exercise choice about when to accord deference, the only evolution since 1803 seems to be in the various intellectual paths taken to arrive at the court's interpretation of the law.

III. Judicial Deference to an Agency's Interpretation of Its Statutes in Texas

A. The General Rule -- The "Serious Consideration" or "Great Weight" Standard

Texas courts have not expressly followed federal law; no Texas decisions adopt a standard like the "extreme deference" standard articulated in Chevron. The judicial deference standard in Texas could be called the "serious consideration" or "great weight" standard, which Texas courts have applied since it was first articulated in 1944.⁽⁴⁹⁾ To date, no Texas cases explore the rationale for judicial deference to the depths that Chevron did; and, in fact, Chevron deference may be inappropriate and unnecessary in Texas because our judiciary is elected, not appointed. Texas judicial deference to administrative interpretations of law is based on many of the "persuasiveness" factors applied in the federal cases noted above. In general, a Texas court will follow the agency's interpretation when it reaches the same conclusion by independently analyzing the statute -- using the agency's decision to bolster the court's position rather than applying a rule that defers to the agency's decision even when the court might not agree.

B. Historical Underpinnings and the "Butler factors"

Like the federal courts, Texas has historical precedent for deference to an agency's interpretation of its statutes. The Texas Supreme Court spoke on this issue as early as 1944 in Stanford v. Butler.⁽⁵⁰⁾ In that case, the court was asked to issue a writ of mandamus against the Texas Democratic Executive Committee, which had refused to certify certain petitioners' names as candidates for the position of Presidential Elector for the State of Texas. The issue was whether the Democratic Party had to nominate candidates for Presidential Electors by primary election or could select the nominees at the party's state convention. Finding the controlling statute somewhat ambiguous, the court turned to the Democratic Party's and the legislature's longstanding construction of the election laws and nominating practices. The court quoted verbatim from Texas Jurisprudence:

"The contemporaneous construction of an act by those who are charged with the duty of its enforcement -- that is, executive and administrative officers and departments, as well as by the courts and the legislature -- is worthy of serious consideration as an aid to interpretation, particularly where such construction has been sanctioned by long acquiescence. Although contemporaneous or practical construction is not absolutely controlling, it has much persuasive force and is entitled to great weight in determining the meaning of an ambiguous or doubtful provision.

"The courts will ordinarily adopt and uphold a construction placed upon a statute by an executive officer or department charged with its administration, if the statute is ambiguous or uncertain, and the construction so given it is reasonable."⁽⁵¹⁾

We can summarize these pronouncements into three rules of judicial deference -- which this paper calls "the Butler factors" -- as follows:

(1) agency interpretation is legally relevant in determining the meaning of an ambiguous or doubtful statute;

(2) contemporaneous construction by an agency charged with the statute's administration is not absolutely controlling, but is worthy of "serious consideration," has much persuasive force, and is entitled to "great weight"; and

(3) the agency's statutory construction ordinarily will be upheld if it is reasonable.⁽⁵²⁾

Noting the absence of a clear statutory provision authorizing the requested relief, and "in view of the fact that the [officers] charged with the execution of the election laws, as well as the legislature, have for such a long period of time construed the law as authorizing the selection of such nominees by convention, and not by primary ballot," the court held that it felt "compelled to give the law the same construction."⁽⁵³⁾

Thus, the Texas Supreme Court's decision to follow the past practice of nominating electors by convention relied on both the administrator's interpretation -- applying the Butler factors -- and legislative intent. Reliance on legislative intent along with agency interpretation has endured in Texas, and courts still summon the three Butler factors when reviewing an agency's interpretation of its statutes. As discussed below, there have been some departures -- primarily in the requirement for ambiguity in the statute and to a lesser extent for a "contemporaneous" interpretation -- but by-and-large Butler remains the law.

Another early Texas judicial deference case was the 1951 Texas Supreme Court decision in Pacific Employers Ins. Co. v. Brannon. In that case, the court stated the "well established" rule that "administrative construction of statutes merits our respect" where the statute's meaning is doubtful or ambiguous.⁽⁵⁴⁾ In that case, the court had to decide whether a decision of the Industrial Accident Board of Texas was "a final" decision over which the court had jurisdiction; the Board's policy interpreted its statute to mean its decision was final. Echoing the Butler requirement for reasonableness, the court adopted the same interpretation as the agency, stating that "we deem it the reasonable course" to hold that the order was final.

Similarly, in the 1968 case of Calvert v. Kadane, the court held that the statutory construction by the agency charged with its administration is "entitled to weight," if the statute's meaning is doubtful or ambiguous.⁽⁵⁵⁾ The case involved the Comptroller's interpretation, based on an Attorney General's opinion, that a tax exemption for "gas used for lifting oil" did not apply to casinghead gas used in well-head pump engines. The court reasoned that the statute was ambiguous; that the legislature could have expressly said that gas used for pump fuel was exempt, but did not; that the Attorney General had found that the gas is not exempt; and that the Comptroller had been using the Attorney General's interpretation for some time. It concluded that, for all those reasons, the gas used as pump fuel was not exempt.⁽⁵⁶⁾ Although it cited the rule that agency interpretations are entitled to "great weight," the court seemed to base its decision on its own reasoning, or at least its agreement with the state officials' reasoning, rather than on actual deference to the agency's interpretation.

The 1944 Butler factors and these other historical underpinnings set the stage for giving "serious consideration," "great weight" or "respect" to an agency decision, but not necessarily deferring to the agency where the court disagrees.

C. Recent Texas Supreme Court Decisions on Judicial Deference to Agency Interpretations

1. Tarrant County Appraisal District v. Moore

Interestingly, the most-frequently cited judicial-deference case in Texas is Tarrant County Appraisal District v. Moore, a case that did not directly consider whether an agency's statutory construction should be upheld, but whether jury instructions were erroneous;⁽⁵⁷⁾ those jury instructions stated that land does not qualify for the "open space" tax exemption if it is used principally for recreational purposes or "as a hobby." In Moore, a taxpayer challenged the taxing authority's decision that their land was not "qualified open-space land" subject to favorable tax treatment. The Texas Supreme Court recited various factors bearing on the statutory interpretation of the definition of "open space land": (1) the Constitution creates the open space exemption, but allowed the legislature to limit eligibility; (2) the Tax Code required the State Property Tax Board ("the Board") to develop procedures for verifying open space qualification; (3) the Board's rules were not inconsistent with any statute; and (4) the court of appeals' decision finding the jury charge erroneous ignored the Board's rules. Citing Butler, the court stated:

Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration so long as the construction is reasonable and does not contradict the plain language of the statute.⁽⁵⁸⁾

But it also noted that the tax rules at issue had been upheld by Texas courts. Without further comment on whether it might have reached a different conclusion or was deferring to definitions in the agency's rules, the court concluded:

Upon review of the entire definition of "agricultural use" included in the charge, we cannot say that inclusion of the phrase "use of land . . . principally for recreation, or as a hobby," in the definition of "agricultural use" in the jury charge was erroneous.⁽⁵⁹⁾

Thus, it is not clear whether the court based its decision on deference to the agency's policy-making role, or a conclusion that the agency's interpretation coincided with its own. Curiously, the court states in a footnote that two references to "hobby farming" had been removed from the agency's rules for the tax years after the ones at issue, but did not comment on whether that deletion should affect jury instructions in similar cases brought for later years.⁽⁶⁰⁾ If the court were to adopt the Chevron rationale, the agency's deletion of the words "hobby farming" from its guidance might mean that future use of the term in jury instruction would be erroneous.

2. Dodd v. Meno

One year later, in Dodd v. Meno,⁽⁶¹⁾ the Texas Supreme Court reviewed the Education Commissioner's decision not to re-hire a school nurse. In a 5-4 decision citing Moore, the court again relied on the second and third Butler factors -- that construction of a statute by the administrative agency charged with its enforcement is entitled to "serious consideration," so long as it is reasonable -- and adopted the Moore court's twist on the "reasonableness" requirement that the agency's interpretation must not "contradict the plain language of the statute."⁽⁶²⁾ The issue in Dodd was whether a licensed school nurse fell within the statutory definition of a "teacher" entitled to the protections of the Term Contract Nonrenewal Act. Although the court mentioned judicial deference to the agency's interpretation, it based its decision on legislative intent,⁽⁶³⁾ merely noting that the agency's interpretation was consistent with that intent, and that "we are not inclined to reverse" the decision-maker's "reasonable determination in an area where he possesses considerable authority and expertise." This is one of the few Texas cases that actually references agency expertise as a rationale for deference.⁽⁶⁴⁾ The four dissenting Justices took issue with any deference to the Education Commissioner's interpretation of the statute in this case because they disagreed with the majority's interpretation of legislative intent and, therefore, its statutory construction.⁽⁶⁵⁾

3. State v. Public Utility Commission suggests an opening for extreme deference in Texas.

In State v. Public Utility Commission, decided the same year as Dodd v. Meno, the Texas Supreme Court considered whether the PUC had authority under the Public Utility Regulatory Act to approve a particular accounting method (deferral of post-in-service carrying costs).⁽⁶⁶⁾ The court upheld the PUC's practice, noting that (1) the statute expressly gave the PUC broad authority in setting and defining a utility's system of accounts, (2) the practice was consistent with other portions of the statute regarding the PUC's authority to set rates, and (3) the "contemporaneous construction of a statute by the administrative agency charged with its enforcement is entitled to great weight."⁽⁶⁷⁾ The court also noted that

when an administrative agency is created to centralize expertise in a certain regulatory area, it is to be given a large degree of latitude in the methods it uses to accomplish its regulatory function.⁽⁶⁸⁾

The court then upheld the PUC's order under the "abuse of discretion" standard.

The majority's reasoning with regard to deference seems to rely on both the Butler factors and some of the Chevron deference considerations.⁽⁶⁹⁾ Consistent with the second Butler factor -- that the contemporaneous construction by an agency charged with the statute's administration is not absolutely controlling, but is worthy of "serious consideration," has much persuasive force and is entitled to "great weight" -- the court noted that an agency's interpretation is persuasive if it is contemporaneous with the statute's enactment. It also referred to deference to be accorded when the agency has centralized expertise. Some of the court's reasoning, however, could be consistent with Chevron extreme deference. The court noted the statutory delegation of "broad authority" and stated that an agency with centralized expertise should be given "a large degree of latitude" in the methods it uses to implement its regulatory program.⁽⁷⁰⁾ But this case did not seem to be a hard one for the court, which mentioned nothing that it found offensive in the PUC's rule. The case does lean toward the extreme deference standard enunciated in Chevron.⁽⁷¹⁾

4. Summary of Recent Texas Supreme Court Decisions

Table 1, which lists judicial deference cases, first by jurisdiction and then by date, summarizes the Texas Supreme Court decisions. As noted, a majority of the Texas Supreme Court cases mention contemporaneous or long-standing interpretation as a factor in agency deference, which is antithetical to the reasoning in Chevron and, in fact, something later courts of appeals' decisions seem to ignore. Nearly all of the cases discussing deference uphold the agency's decision, and all carry forward the Butler factors to some degree.

D. Many lower court decisions in Texas rely on, but do not analyze, the Butler factors.

Texas Courts of Appeals' decisions recite, but do not analyze, the Butler judicial deference factors. These cases are summarized in Table 1, which indicates which factors the courts recite and whether the agency's interpretation was upheld. In general, however, the courts seem to follow the overall approach suggested in Butler of considering legislative intent as well as the agency's interpretation, and seem to independently interpret the statute, noting deference to the agency's position principally to bolster the courts' own independent analyses. Two recent lower court decisions that suggest somewhat more deference than Butler are Quorum Sales, Inc. v. Sharp⁽⁷²⁾ and City of Plano v. Public Utility Commission.⁽⁷³⁾ Both these opinions find that, if the statute can be reasonably read as the agency has interpreted it, and that reading is in harmony with the rest of the statute, then the court "is bound to accept that interpretation" even if other reasonable interpretations exist.⁽⁷⁴⁾ This suggests extreme deference, but -- as in the federal courts -- the Texas courts still retain the power to determine whether the interpretation is "reasonable" and in harmony with the rest of the statute.

Several of the cases summarized in Table 1 and one provision of the Code Construction Act, raise issues that merit a separate discussion about the evolution or survival of the Butler factors in Texas.

1. The First Butler Factor -- an Agency's Interpretation Is Only Legally Relevant for an Ambiguous Statute

Of the three Butler factors, the first one -- that an agency's interpretation is only legally relevant for an ambiguous statute -- has been most eroded, by both the case law and the legislature. The Texas Code Construction Act provides express statutory authorization for judicial deference to agency interpretations whether or not the statute is ambiguous. Section 311.023 of the Texas Government Code states:

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

. . . .

(6) Administrative construction of the statute;⁽⁷⁵⁾

Since this statutory provision was adopted in 1967,⁽⁷⁶⁾ no Texas court has considered the possible separation of powers problems inherent in this purported grant of authority to the judicial branch to consider an agency's construction of an unambiguous statute. However, granting power to either the judicial branch or the executive branch to change the meaning of an unambiguous statute seems to be in direct conflict with the exclusive power to make laws that is vested only in the legislature by Article II, section 1 of the Texas Constitution.⁽⁷⁷⁾ One court has suggested that a distinction can be made under the separation of powers doctrine under which agencies can decide issues of "policy" while statutory interpretation "is a judicial rather than a legislative act."⁽⁷⁸⁾ The case suggests that interpretations involving public health and welfare are "policy" decisions best left to the administrative agencies, while other issues are legal determinations constitutionally conferred on the courts.⁽⁷⁹⁾

Despite the statutory invitation of the Code Construction Act, courts generally decline to consider an agency's statutory construction of unambiguous statutes. In Ex parte Roloff,⁽⁸⁰⁾ decided in 1974, the Texas Supreme Court held that, where a disputed statute is "clear and unambiguous," extrinsic aids and rules of statutory construction are "inappropriate."⁽⁸¹⁾ The Texas Supreme Court reiterated this rule in 1983.⁽⁸²⁾ Again, in the 1996 case of Texas Water Commission v. Brushy Creek Municipal Utility District, the Texas Supreme Court stated that "[w]e resort to rules of construction only when the statute in question is ambiguous."⁽⁸³⁾ The context of the court's statement indicated that the court clearly viewed an agency's interpretation as an aid in statutory construction, not as an independent issue of agency deference.⁽⁸⁴⁾ Some cases hold that courts should not turn to aids in statutory construction when the statute is unambiguous, unless the result would be absurd.⁽⁸⁵⁾ Two 1994 decisions of the Austin Court of Appeals held that judicial deference is permissible only if the meaning of the statute is not clear.⁽⁸⁶⁾

Although some courts have examined an agency's interpretation of an unambiguous statute,⁽⁸⁷⁾ most courts emphasize that the rule giving great weight to agency interpretations is "especially true" when the statute is ambiguous.⁽⁸⁸⁾ The agency's interpretation in these cases serves little more than to bolster the court's own understanding of the statute's meaning, but the fact that courts will even consider agency interpretation of an unambiguous statute may signal a distinction between judicial deference and statutory interpretation. In other words, some courts may distinguish between (1) relying on an agency's interpretation as an aid in statutory construction of ambiguous of statutes and (2) giving deference to an agency's interpretation as a matter of policy or -- as Chevron suggests -- because the legislature has expressly delegated the agency the authority to "fill in the gaps." In Resolution Trust Corp. v. Tarrant County Appraisal District, for example, the court found that it was required to give the unambiguous statute its ordinary meaning without resort to extrinsic aids of construction but, in addition, it must consider the agency's interpretation:

Since neither party complains that the Section 23.55(a) is ambiguous, we are required to give the statute its common ordinary meaning without the use of extrinsic aids or rules of statutory construction. We must also give consideration to the construction that the statute has been given by the agency charged with its enforcement.⁽⁸⁹⁾

Similarly, in Quorum Sales, Inc. v. Sharp, the court noted that section 311.023(6) of the Code Construction Act allows consideration of the agency's interpretation of an unambiguous statute, and that it may give weight to any construction placed upon a statute by the agency charged with its administration so long as it is "reasonable and does not contradict the plain language of the statute."⁽⁹⁰⁾

In summary, courts appear to be divided on whether an ambiguous statute is a prerequisite to judicial deference. Although the Code Construction Act allows consideration of the agency's interpretation when construing an unambiguous statute, in general, the courts disfavor it. The Constitution may prohibit it.

2. The Second Butler Factor -- "Serious Consideration" and "Great Weight" Given to the Agency's Contemporaneous Construction

Courts frequently cite the Butler factor that contemporaneous construction by an agency charged with the statute's administration is worthy of "serious consideration," has much persuasive force and is entitled to "great weight."⁽⁹¹⁾ One substantive departure from this rule has been in the requirement for "contemporaneous" or long-standing interpretations. The decisions citing or relying on this rule often leave out the concept that the agency's interpretation must be contemporaneous or long-standing in order to command deference, suggesting application of the Chevron rationale that agencies should have discretion to shift their interpretations with a change in policy and/or political power. Nevertheless, some recent cases still note a long-standing interpretation as a persuasive factor. In Texas Water Commission v. Brushy Creek Municipal Utility District, the Texas Supreme Court relied on the long-standing administrative interpretation of the statute, along with the absence of any language to the contrary in the statute, to uphold an agency interpretation.⁽⁹²⁾

In Borden, Inc. v. Sharp,⁽⁹³⁾ the court engaged in a detailed discussion of legislative history through which it reached a statutory construction that agreed with the Comptroller's. Having reached that conclusion, it then stated that construction of the statute "by an administrative agency charged with this enforcement is entitled to serious consideration, as long as the construction is reasonable and does not contradict the plain language of the statute."⁽⁹⁴⁾ The court also noted, however, that the Comptroller had "consistently" applied the interpretation upheld by the court, suggesting that consistency of agency interpretation is one of the persuasiveness factors that the Texas courts will consider. In this case, as in others, the court used the agency's interpretation to support the interpretation it had independently reached. The rationale that the courts should defer to agencies because of their expertise, which is mentioned in some Texas judicial deference decisions, probably is encompassed by this second Butler factor. By suggesting that the court should defer to interpretations by agencies "charged with" the statutes' enforcement or administration, this factor likely presumes that the agency has developed some expertise in the area. The cases that discuss expertise say that courts should defer to the agency in their specialized fields. In Hunter Industrial Facilities v. Texas Natural Resources Conservation Commission, for example, the Austin Court of Appeals, after commenting on the TNRCC's expertise in waste management, stated "the legislature obviously intended that the Commission, a politically accountable body, be responsible for assessing the need for different types of waste disposal technology."⁽⁹⁵⁾ In this statement, we hear the Chevron Court's concern with leaving policy decisions to the politically-appointed agencies, although the court cites to Moore, not Chevron. In Southwestern Bell v. Public Utility Commission, the court -- stating that it should follow the agency's construction so long as it did not contradict the plain meaning of the statute -- noted that the PUC is required to harmonize various statutory definitions "in complex technical circumstances and under a statutory framework assigning the agency very difficult tasks indeed."⁽⁹⁶⁾ Other cases that mention agency expertise are noted in Table 1.

3. The Third Butler Factor -- the "Reasonableness" or "Not Contrary to Statute" Requirement

As Table 1 shows, the third Butler factor -- that the agency's statutory construction ordinarily will be upheld if it is reasonable -- is the most-often recited rule of judicial deference. Simply citing Moore, the courts discuss any one of the various deference factors, and conclude with the statement "so long as the construction is reasonable and does not contradict the plain language of the statute." Except for the reasoning noted below discussing "de novo" review of agency decisions on questions of law under the "clearly erroneous" standard, the cases contain no significant analysis of this requirement.

E. Integrating Another Rule -- Courts Review Agency Decisions on Questions of Law "de Novo"

Not to be forgotten is the independent rule that courts review agency decisions on questions of law "de novo." Although an agency's statutory interpretation might be accorded deference, Texas courts have held that such a question of law is subject to "de novo" review.⁽⁹⁷⁾ The agency's decision is neither binding nor entitled to a presumption of validity.⁽⁹⁸⁾ Language in the Texas APA that a court "shall reverse or remand" an agency decision where substantial rights of the appellant have been prejudiced because, among other things, the agency's "findings, inferences, conclusion, or decisions" are in violation of a statutory provision or are "affected by other error of law"⁽⁹⁹⁾ supports this rule; in fact, the "error of law" standard has been interpreted by the Texas Supreme Court to mean that judicial review of an agency's legal conclusions is de novo.⁽¹⁰⁰⁾

The remaining question is: what is "de novo" judicial review? "De novo" judicial review of an agency's decision under the APA cannot require a new trial; absent extraordinary circumstances or express statutory authorization for a new hearing, the appeals are based on the administrative record.⁽¹⁰¹⁾ Most likely, "de novo" review of an agency determination on a question of law simply means that the agency's determination is not entitled to a presumption of validity under the substantial evidence or arbitrary and capricious standards. Some courts have held that, while an agency's statutory construction is not entitled to a presumption of validity, it is reviewed under the "plainly erroneous" standard.⁽¹⁰²⁾ "Plainly erroneous" may mean that the interpretation cannot stand if it is inconsistent with the statute⁽¹⁰³⁾ -- a component of the third Butler factor for judicial deference to the agency's interpretation. In a somewhat different context, at least one Texas court has found that the plainly or "clearly erroneous" standard gives the reviewing body broader authority than the "substantial evidence" review, and allows a decision to be overturned despite its "theoretical reasonableness."⁽¹⁰⁴⁾ Case law and the Code Construction Act clearly allow the courts to accord deference to the agency's determination of a question of law in the form of "serious consideration" and "great weight," at least where the determination is reasonable and not contrary to the statute. The rule that the court has the power to construe an unambiguous statute independently of the agency's determination brings us back to the separation of powers principle of Marbury v. Madison.

F. Closing Comments

Butler formally adopted the old, traditional rules of judicial deference in Texas -- deference factors similar to the "persuasiveness" factors that were followed before Chevron and still are followed by many federal court decisions. Chevron, and to a very limited extent State v. Public Utility Commission in Texas,⁽¹⁰⁵⁾ suggested a rationale for departing from the rules that (1) the court has the final say, and (2) the longevity or "contemporaneous" nature of the interpretation is material (so long as the agency's determination is thoughtful and well-reasoned). The Chevron court decided that policy choices need to be made by the political branches of government. To date, the Texas courts, and many federal courts, have been reluctant to apply the two-step Chevron test and turn over the court's job of statutory interpretation to the "administrative branch" of government. The case-by-case analysis continues, with the inherent instability in the agencies' interpretation of their statutes. No final decision has been reached about whether the voting public must communicate its ultimate policy choices to the legislative branch or to the executive branch -- or in Texas even to the judicial branch.

Setting aside the larger issue of separation of powers, and focusing on the practical day-to-day practice of administrative law, a bright-line rule on judicial deference is probably impractical. For lawyers and judges that practice in the area of administrative law, flexible case-by-case analysis that (1) considers agency expertise and the complexity of the regulatory program, (2) balances the consistency found in long-standing interpretations against shifting public policy, and (3) evaluates the ultimate reasonableness of the agency's interpretation, just might be the best approach.

1. State v. PUC, 883 S.W.2d 190, 194 (Tex. 1994) ("As a general rule, an administrative agency is a creation of the legislature and, as such, has only those powers expressly conferred and those necessary to accomplish its duties."); Sexton v. Mount Olivet Cemetary Ass'n, 720 S.W.2d 129, 137 (Tex. App.-- Austin 1986, writ ref'd n.r.e.).

2. 5 U.S. (1 Cranch) 137, 177 (1803).

3. 467 U.S. 837, 104 S. Ct. 2778 (1984).

4. 467 U.S. 837 (1984).

5. Id. at 842-43.

6. Id. at 844.

7. Id. at 843-44.

8. Id.

9. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 516 [hereinafter Justice Scalia].

10. Chevron, 467 U.S. at 845-48, 853-57.

11. Id. at 857 (citing to 45 Fed. Reg. 52,697 (1980)).

12. Id. at 857.

13. Id. at 858.

14. Id. at 858 (citing 46 Fed. Reg. 16,281 (1981)).

15. Chevron, 467 U.S. at 842. The decision was a 6-0 decision, with three Justices "taking no part."

16. Id. at 860.

17. Id. at 862.

18. Id. at 863-64.

19. Id. at 844.

20. Id. at 866.

21. Id. at 866.

22. See Justice Scalia, supra at 517 n. 9.

23. Chevron, 467 U.S. at 842-43.

24. Florida Power & Light Co. v. Lorion, 105 S. Ct. 1598, 1603 (1985).

25. Chevron, 467 U.S. at 843.

26. Chevron, 467 U.S. at 865 (citations omitted).

27. Justice Scalia, supra, at 516 n. 9.

28. 323 U.S. 134 (1945).

29. 323 U.S. 134, 140 (1945). See also Russell Weaver, A Foolish Consistency is the Hobgoblin of Little Minds, 44 Baylor L. Rev. 529, 531-32 (year) (discussing the Skidmore factors).

30. Weaver, supra, at 532 n. 29.

31. Weaver, supra, at 532 n. 29.

32. Chevron, 467 U.S. at 844.

33. Chevron was cited over 400 times just in the four years after it was decided.

34. Wolpaw v. Commissioner of Internal Revenue, 47 F.3d 787, 790 (6th Cir. 1995) (citing Ohio State Univ. v. United States Department of Health and Human Services, 996 F.2d 122, 123 n.1 (6th Cir. 1993)).

35. 323 U.S. 134 (1945).

36. See e.g., Rust v. Sullivan, 111 S. Ct. 1759, 1769 (1991).

37. 480 U.S. 421 (1987).

38. See Chevron, 467 U.S. 837, 863.

39. 480 U.S. 421, 446 n. 30 (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)).

40. 502 U.S. 527 (1992).

41. Id. at 536-37.

42. Id. (citing Maislin Industries, U.S. Inc. v. Primary Steel, Inc., 497 U.S. 116, 131 (1990).

43. Id. at 536-37, 538.

44. Clark v. Alexander, 85 F.3d 146, 152 (4th Cir. 1996). But see Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988), cert. denied, 491 U.S. 905 (1989) (the court declined to accord deference to the state's interpretation because the state had not been delegated implementation of federal law, noting that courts defer to federal agencies because of the agencies' expertise in implementing federal policy).

45. See Amisub (PSL) v. Colorado, 879 F.2d 789, 795-96 (10th Cir. 1989).

46. Kenaitze, 860 F.2d at 316.

47. Weaver, supra note 29, at 532.

48. Justice Scalia, supra note 9, at 513-514.

49. Stanford v. Butler, 181 S.W.2d 269, 273 (Tex. 1944).

50. 181 S.W.2d 269 (Tex. 1944).

51. Id. at 273 (citations omitted).

52. In addition to these three factors, the court noted that the statute in question had been amended several times since its initial interpretation by the Democratic Party and the Secretary of State, and recited the following rule as being "very well-established:"

Where a statute of doubtful construction has been construed by executive officers of the State charged with its execution, and it has been subsequently been re-enacted without substantial change of language, it will continue to receive the same construction.⁽⁵³⁾

53. Butler, 181 S.W.2d at 275.

54. 242 S.W.2d 185, 189 (Tex. 1951) (citing two lower court rulings).

55. 427 S.W.2d 605, 608 (Tex. 1968) (citing Slocumb v. Cameron Indep. School Dist., 116 Tex. 288, 288 S.W. 1064 (1926)).

56. 427 S.W.2d at 609 (Greenhill, J. dissenting).

57. 845 S.W.2d 820, 821 (Tex. 1993).

58. Id. at 823.

59. Id. (ellipsis in original).

60. Id. at 823-24 n.2.

61. 870 S.W.2d 4, 7 (Tex. 1994).

62. Id.

63. Id. at 5 ("We conclude that the Legislature did not intend the TCNA to apply to school nurses, and we therefore affirm the judgment of the Court of Appeals.").

64. See also State v. Pub. Util. Comm'n , 883 S.W.2d 190, 196 (Tex. 1994) (noting that an agency created to "centralize expertise in a certain regulatory area" is to be given "a large degree of latitude in the methods it uses to accomplish its regulatory function"); Gilder v. Meno, 926 S.W.2d 357, 360 (Tex. App.--Austin 1996, writ denied) (the court accorded deference because of the Commissioner's "expertise and experience"); Southwestern Bell v. Pub. Util. Comm'n, 745 S.W.2d 918, 923-24 (Tex. App.--Austin 1988, writ denied) (the PUC is required to harmonize various statutory definitions in "in complex technical circumstances and under a statutory framework assigning the agency very difficult tasks indeed").

65. Dodd at 7-9 (J. Spector, J. Hightower, J. Doggett and J. Gammage, dissenting).

66. 883 S.W.2d 190, 196 (Tex. 1994).

67. Id. at 194-196.

68. Id. at 197.

69. The decision in State v. Public Utility Commission was a 5-4 decision. The dissent's opinion did not comment on deference.

70. Id. at 197.

71. See also McMullen v. Employees Retirement Syst., 935 S.W.2d 189, 191 (Tex. App.--Austin 1996, writ denied) (finding that the agency had the "undoubted power to determine as a matter of law" certain definitions because it had been "empowered by statute" to establish certain specifications).

72. 910 S.W.2d 59, 62 (Tex. App.--Austin 1995, writ denied). Note that the opinion goes on to state that "[w]hen the Comptroller's interpretation of the scope of a tax exemption statute is reasonable, in that it harmonizes with the statute, then this Court is bound to accept that interpretation regardless of the existence of other reasonable interpretations.) Id. at 64 (citing Hammerman & Gainer, Inc. v. Bullock, 791 S.W.2d 330 (Tex.App.-Austin 1990, no writ).

73. No. 03-96-00691 (Austin Aug. 14, 1997, n.w.h.).

74. City of Plano, slip op. at 6 (citing Quorum); Quorum Sales,910 S.W.2d at 64.

75. Tex. Gov't Code Ann. § 311.023 (Vernon Supp. 1997).

76. Code Construction Act, 60th Leg., R.S., ch. 455, § 1, sec. 3.03, 1967 Tex. Gen. Laws 1036, 1038.

77. Tex. Const. art. II, § 1; Calvert v. Kadane, 427 S.W.2d 605, 609 (Tex. 1968) (Greenhill, J., dissenting, stating that to give effect to administrative construction of an unambiguous statute "would be to recognize that a legislative power was vested in the executive branch of government contrary to the provisions of Article II, § 1 of the Texas Constitution."). Cf. Palella v. Leyden Fam. Serv. & Mental Health Ctr., 404 N.E.2d 228, 231 (Ill. 1990) (a legislative body has no power to determine how the judiciary shall construe a legislative enactment); Hot Springs Indep. Sch. Dist. No. 10 v. Fall River Landowners Ass'n, 262 N.W.2d 33, 39 (S.D. 1978) (subsequent legislature's resolution regarding the intent of an existing statute was ineffective); State v. Sissions, 292 So.2d 523, 527 (La. 1974) (a legislative amendment that purports to direct the manner in which a statute is to be construed is an ineffective attempt to exercise a judicial function); Village of Moyie Springs, Idaho v. Aurora Mfg. Co., 353 P.2d 767, 774 (Idaho 1960) (the legislature cannot bind courts with a declaration that an act shall not be construed to violate the constitution); Martin v. Baldwin, Jr., 110 S.E.2d 344, 349-50 (Ga. 1959) (a resolution declaring that court of appeals had limited the meaning of an act was an unconstitutional attempt by the legislature to perform a judicial function).

78. Firemen's Pension Comm'n v. Jones, 939 S.W.2d 730, 735 (Tex. App.--Austin 1997, n.w.h.).

79. Id. at 735 (distinguishing the holding in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 714 (1959), that statutory interpretation is a legislative act committed to the agency's discretion, stating that Davis involved a determination of public policy, "whether conditions in a particular section of the city were detrimental to the city's public health, safety, morals or welfare.").

80. 510 S.W.2d 913 (Tex. 1974).

81. Id. at 915.

82. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983).

83. 917 S.W.2d 19, 21 (Tex. 1996).

84. Id.

85. Borden, Inc. v. Sharp, 888 S.W.2d 614, 618 (Tex. App.--Austin 1994, writ denied).

86. Southwestern Bell Tel. Co. v. Pub. Util. Comm'n, 888 S.W.2d 921, 927 (Tex. App.--Austin 1994, writ denied) (deference is permitted "only if the meaning is unclear or ambiguous); Meno v. Kitchens, 873 S.W.2d 789 (Tex. App.--Austin 1994, writ denied).

87. Resolution Trust v. Tarrant County Appraisal Dist., 926 S.W.2d 797, 799 (Tex. App.--Fort Worth 1996, no writ) (finding that no party complains of ambiguity in the statute, the court states "we must also give consideration to the construction that the statute has been given by the agency charged with its enforcement.").

88. See Texas Ass'n of Long Distance Tel. Cos. v. Pub. Util. Comm'n, 798 S.W.2d 875, 884 (Tex. App.--Austin 1990, writ denied).

89. Resolution Trust Corp. v. Tarrant County Appraisal Dist., 926 S.W.2d 797, 799 (Tex. App.--Fort Worth 1996, no writ) (citing Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993) and other authorities).

90. 910 S.W.2d 59, 62 (Tex. App.--Austin 1995, writ denied).

91. See Table 1.

92. 917 S.W.2d 19, 23 (Tex. 1996).

93. 888 S.W.2d 614 (Tex. App.--Austin 1994, writ denied).

94. 888 S.W.2d at 620 (citing Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)).

95. 910 S.W.2d 96, 111 (Tex. App.--Austin 1995, writ denied).

96. 745 S.W.2d 918, 923 (Tex. App.--Austin 1988, writ denied).

97. In re Humphreys, 880 S.W.2d 402, 404 (Tex 1993); Firemen's Pension Comm'n v. Jones, 939 S.W.2d 730, 735 (Tex. App.--Austin 1997, n.w.h.)

98. Wilmer-Hutchins Indep. Sch. Dist. v. Brown, 912 S.W.2d 848, 850 (Tex. App.--1995, writ denied); Teacher Retirement Syst. v. Cottrell, 583 S.W.3d 928, 930 (Tex. App.--Austin 1979, writ ref'd n.r.e.).

99. Tex. Gov't Code Ann. § 2001.174 (Vernon 1997).

100. In re Humphreys, 800 S.W.2d at 404. With regard to de novo review of questions of law, the federal APA is even stronger, stating that a reviewing court shall "decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." 5 U.S.C. § 706 (1996).

101. Tex. Gov't Code Ann. § 2001.174 (Vernon 1997).

102. Wilmer-Hutchins Indep. Sch. Dist., 912 S.W.2d at 850.

103. Moore v. Central Educ. Agency, 768 S.W.2d 1, 4 (Tex. App.--Austin 1989, writ denied).

104. Hunter Indus. Facils. v. Texas Nat. Res. Conservation Comm'n, 910 S.W.2d 96, 104 (Tex. App.--Austin 1995, writ denied) (discussing the clearly erroneous standard for the Commissioner's review of an Administrative Law Judge's conclusion of law).

105. 883 S.W.2d 190, 196 (Tex. 1994).

Copyright © 1998 State Bar of Texas Administrative and Public Law Section, All Rights Reserved.