State Bar of Texas Administrative and Public Law Section

Featured Article - October 1998

BIOGRAPHICAL INFORMATION

Judge McCown was first elected as Judge of the 345th District Court of Travis County Texas, in l988.

Before his election as judge, Judge McCown was a trial attorney with Vinson & Elkins in Houston, an assistant professor of law at U.T., and a special assistant attorney general of Texas and Chief of the Criminal Law Enforcement Division. As Chief of the Criminal Law Enforcement Division, Judge McCown represented the state's criminal justice agencies, including the state prison in the Ruiz case.

Judge McCown graduated from the University of Texas School of Law with Honors in 1979 where he was Order of the Coif, Order of Barristers, and on the Editorial Board of the Texas Law Review.

MONICA LEO
STAFF ATTORNEY, 345TH DISTRICT COURT

Ms. Leo has served as staff attorney to Judge McCown since August, 1996. She graduated from the University of Texas School of Law in December, 1994. During law school Ms. Leo clerked in the Natural Resources Division of the Office of the Attorney General, and then worked as an assistant attorney general in that division until joining the judge's staff.

TABLE OF CONTENTS

• I. INTRODUCTION
• II. THE DECISIONMAKERS: WHO ARE THOSE GUYS?
  • A. Administrative Law Judges
  • B. Agency Heads
  • C. Summary
• III. THE TYPES OF DECISIONS: LAW, FACTS, AND MORE FACTS
  • A. Introduction
  • B. Questions of Law
  • C. Questions of Fact
• IV. THE MODELS
  • A. Only for Reasons of Policy
  • B. Not Supported by the Great Weight of the Evidence
  • C. Not Supported by a Preponderance of the Evidence, or Shall Be Based Solely Upon the Record
  • D. Clearly Erroneous
  • E. The ALJ Did Not Properly Apply or Interpret Applicable Law, or A Prior Administrative Decision is Incorrect and Should be Changed
  • F. Technical Error in a Finding of Fact
• V. HOW TO COMPLY
  • A. Identify
  • B. Explain
    • 1. Evidentiary questions
    • 2. Law and Policy Matters
• VI. SHOULD BE
• VII. CONCLUSION
• APPENDIX: RELEVANT STATUTES
• CHART: FACTUAL SUFFICIENCY
• FOOTNOTES

WHEN CAN AN AGENCY CHANGE THE FINDINGS OR CONCLUSIONS OF AN ADMINISTRATIVE LAW JUDGE?

F. Scott McCown and Monica Leo

I. INTRODUCTION

We commonly assert that the aim of our legal system is to do justice according to the law and the facts. By "the law" we mean, more precisely, the law as determined by whatever actor the legal system charges with responsibility for determining the applicable law. By "the facts" we mean, more precisely, the facts as determined by whatever actor the legal system charges with responsibility for determining the facts. Before knowing whether we succeed in doing justice, we must take account of some fundamental characteristics of both law and facts, and of our ways of determining them.⁽¹⁾

Those words were penned by Judge Robert Keeton in reference to the respective functions of judge and jury in courts. Here, however, his words provide a starting point for a discussion of the allocation of decisiorimaking power between the administrative law judge (ALJ) hearing a contested case and the agency that will issue the final order.

At one time, agency heads had virtually unlimited discretion to disregard any findings of a hearings examiner. No longer. The perception of unfairness that resulted when a party in a contested case was also the final decisionmaker led to legislation curtailing the authority of the agency to modify the ALJ's decisions.

Currently, at least eight Texas statutes address the allocation of power between the ALJ and the agency.⁽²⁾The circumstances of a contested administrative case often require choices that blur the line between pure law (which, as will be discussed later. tend to fall on the agency's side of the decisionmaking fence) and pure fact (which should generally go to the ALJ). Ascertaining which final decisions are properly made by the agency and which should be made by the ALJ requires an understanding of who the decisionmakers are and of the types of decisions to be made.

Part II of this article discusses the two decisionmaking groups-the ALJs and the agency heads, as well as their primary responsibilities in the administrative process and their respective backgrounds and areas of expertise. Part III contains an analysis of the kinds of decisions likely to be involved in a contested case; the distinction between different types of "facts," as well as between the law and the facts. Part IV identifies the six standards that currently govern the authority of an agency to change an ALJ's findings. Part V is an "how to" section, providing practical ideas to the agency head in crafting an order in compliance with the governing statutes. Finally, Part VI contains a not-yet thoroughly baked idea as to how the law might better address existing problems and achieve the desired goals.

II. THE DECISIONMAKERS: WHO ARE THOSE GUYS?

A. Administrative Law Judges

The statutes that address final. order decisionmaking are applicable only to ALJs employed by the State Office of Administrative Hearings (SOAH). SOAH is an independent agency created in 1991 by the 72nd Texas Legislature to conduct contested case hearings under the Administrative Procedure and Texas Register Act (now the Administrative Procedure Act, codified at TEX. GOVT. CODE ANN. §§ 2001.001-901). Prior to the creation of SOAH, contested case hearings were conducted by examiners employed by the agencies. That system created at least an appearance of unfairness, because the ALJS were directly accountable to the decisionmakers at the agency.⁽³⁾ SOAH was created to "assure that hearings in contested cases are conducted fairly, objectively, promptly, and efficiently, and result in quality and timely decisions."⁽⁴⁾

Originally, SOAH provided its services only to agencies that did not employ fiill4ime hearings officers. however, subsequent legislation has transferred contested case authority to SOAH for numerous other agencies, including the Public Utility Commission of Texas (PUC) and the Texas Natural Resource Conservation Commission (TNRCC). SOAH now contracts with approximately 70 state agencies.

The Chief Administrative Law Judge is the head of the SOAH organization; the Deputy Chief Administrative Law Judge has the management responsibilities for daily operation of the agency. SOAH is divided into four divisions: the Central Hearings Panel, the Natural Resources Division, the Utility Division, and the Administrative License Revocation Division, each supervised by a division director. Division directors assign incoming cases to the ALJs within a division based on a number of factors, including caseload, experience, interest, and expertise on particular issues. Some cross-assignment between divisions occurs to meet shifting caseloads. Sixty ALJS are currently employed by the agency, with an average of nine years of presiding experience. Most worked as hearings officers assigned to a particular agency before joining SOAH.⁽⁵⁾

Until the statute was amended by the 75th Legislature, ALJS had only to be licensed to practice law "and meet other requirements prescribed by the chief administrative law judge."⁽⁶⁾ A survey by the Texas Senate Committee on State Affairs conducted in October 1995 revealed concern among agencies served by SOAH regarding the lack of subject matter expertise among the ALJs⁽⁷⁾ The Legislature responded by increasing The qualifications for ALJS within some divisions to include certain training and experience guidelines.

For example, applicable to the Utility Division:

(d) To be eligible to preside at a hearing, an administrative law judge, regardless of temporary or permanent status, must be licensed to practice law in this state and have not less than five years of general experience or three years of experience in utility regulatory law.⁽⁸⁾

Additionally, Senate Bill 323, passed by the 75th Legislature effective September 1, 1997, addresses general education requirements for SOAH ALJS:

(a) The office shall provide at least 30 hours of continuing legal education and judicial training to each new administrative law judge employed by the office who has less than three years of presiding experience. The office shall provide the training required by this subsection during the administrative law judge's first year of employment with the office. The office may provide the training through office personnel or through external sources, including state and local bar associations and the National Judicial College. The training may include the following areas: (1) conducting fair and impartial hearings; (2) ethics; (3) evidence; (4) civil trial litigation; (5) administrative law; (6) managing complex litigation; (7) conducting high-volume proceedings; (8) judicial writing; (9) effective case-flow management; (10) alternative dispute resolution methods; and (11) other areas that the office considers to be relevant to the work of an administrative law judge.

(b) The office shall provide continuing legal education and advanced judicial training for other administrative law judges employed by the office to the extent that money is available to this purpose.⁽⁹⁾

Thus, ALJS can be characterized as licensed attorneys, unconnected to any particular enforcement agency, trained in the procedures, organization, and ethics of conducting impartial hearings, with little or no formal experience in the subject matter before them.

B. Agency Heads

State agencies are governed by officials who are either elected (e.g., the Agriculture Commissioner, the Comptroller, and Railroad Commissioners) or appointed through a process of nomination by the Governor and approval by the Senate (e.g., the commissioners of the TNRCC and the PUC). The enabling statutes for each agency establish the number of officials that will sit on a board or commission, the eligibility requirements, and the terms of office. In some cases, the statute requires a board or commission balanced as to representatives of the regulated industry and representatives of the protected class.

Whether the agency is headed by elected or appointed officials, the agency has the responsibility of administering the statutes passed by the Legislature to achieve stated purposes or objectives. In other words, the Legislature, having identified a public policy requiring the regulation of some business or other matter of public interest, has delegated the responsibility of carrying out those objectives to the agency. With that broad authority, the agency will necessarily determine the details of the overriding public policy and develop rules to implement their objectives.

C. Summary

The puzzle of who should make the final decision in a contested case cannot be solved without an appreciation of the qualifications, experience, and responsibilities of each decisionmaking group. On one hand, ALJS are attorneys with experience and training in "judging," procedural experts, charged by the legislature with the responsibility for conducting efficient and unbiased hearings, who may or may not have subject-matter experience. On the other hand, agency heads are elected or appointed officials, generally subject matter experts, charged by the legislature with the responsibility for developing and implementing a consistent body of regulation of their particular industry.

III. THE TYPES OF DECISIONS: LAW, FACTS, AND MORE FACTS

A. Introduction

"[T]he distinction among the kinds of issues which contribute to a decision [in a contested case] is a powerful analytical tool. ... Both the type of procedures and the level of external control, judicial and otherwise over the agency should, and do, depend on the kinds of issues involved in an administrative process."⁽¹⁰⁾

B. Questions of Law

In the "who decides" debate, there should be little argument that the 'agency is best suited to have the final say on issues of policy and law. As discussed above, the agency is the entity created and charged by the legislature to develop expertise and experience in the industry it regulates. Issues of law that arise in contested cases typically implicate regulatory policies embodied in the agency 5 statute. For this reason, the courts themselves, whose function is to resolve questions of law, frequently give some deference to an agency's interpretation of its own statute and regulations.⁽¹¹⁾

Furthermore, the agency decisionmakers are politically accountable-directly as elected officials or indirectly as appointees of elected officials-for implementing policies that reflect certain social values, and to adjust those policies to meet changing circumstances, within the limits set by the statute. When the agency promulgates rules that set limits or prohibit certain conduct, the agency is functioning as a group representative of society's values, or more precisely, of finding a proper balance between competing values.

For example, in regulating activities' that impact the environment, the values of progress, thriving businesses, and a healthy economy must be balanced against the values of clean air and water, thriving wildlife populations, and the continuing availability of natural resources. Each "value" standing alone appears to be desirable, but in many cases activities that would promote one value may threaten another. "Too much" progress may threaten the environment. "Too much" protection of the environment may stifle business. The TNRCC is the agency charged with finding the balance between the conflicting primary proper values.

The "who decides" question having been settled, the issue becomes what standard should the agency use when reviewing an ALJ's legal conclusions and consistency with agency policy? On issues of law, the question is always "did they get it right'?" The agency reviewing the ALJ should always be empowered to have the final say in whether the ALJ got the law right, just as the court reviewing the agency has the authority to determine whether the agency got the law right.

Where the law or policy has been established by rule or other agency precedent, the ALJ has no discretion and must defer to the existing policy. The ALJ's ruling should be reviewed by the agency using a de novo standard. Where the issue is one of first impression, the ALJ must exercise their best judgment, but the final decision should still be subject to de novo review by the agency. (See further discussion below of Hunter Indus. Facilities. Inc. v. Texas Natural Resource Conservation Com'n. 910 S.W.2d 96 (Tex.App.--Austin 1995, writ denied).) Limiting the agency's power to correct the ALJ's misunderstanding or misapplication of the law would be delegating policymaking power to a single ALJ. As stated by the court in Hunter, "forcing the Commission to accept the hearing examiners' conclusions of law would destroy the Commission's discretion to interpret the rules that the Commission itself has promulgated."

Some suggestion has been made that where the statute requires the agency to "provide the administrative law judge with a written statement of the applicable rules or policies,"⁽¹²⁾ the agency is foreclosed from rejecting an ALJ's decision on an issue of law if the agency failed to provide the ALJ with a rule or policy on that point. There is simply no way, however, that every legal issue that will find its way into a contested case can be foreseen by the agency in advance such that a written rule or policy can be provided. Moreover, the failure by an agency to list an applicable rule in policy should not give ALJs carte blanch to interpret other laws in any manner they wish.

C. Questions of Fact

In addition to dividing issues into question of law and questions of fact, it is helpful to distinguish between two types of facts used in deciding cases. The distinction was noted by Professor Davis:

When a court or an agency finds facts concerning the immediate parties--who did what, where, when, how and with what motive or intent--the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative. facts. When a court or an agency develops law or policy, it is acting legislatively; the courts have created the common law through judicial legislation, and the facts which form the tribunal's legislative judgment are called legislative facts."⁽¹³⁾

Judge Keeton further explained the importance of the distinction noted by Professor Davis.

The distinction between "adjudicative facts" and "premise facts⁽¹⁴⁾" is very important because legal precedents have authorized methods for deciding 'premise facts" that are very different from the methods authorized for deciding "adjudicative facts." Stated another way, the point is that far more constraints on method apply to deciding "adjudicative facts."...[T]he choice among methods by which facts are decided in each instance of a material dispute of fact depends on the anticipated use of the facts-whether as premises for adopting a legal rule that affects the outcome of many cases or instead as facts that affect outcome only in the case at hand (and perhaps in closely related cases within the scope of claim preclusion and issue preclusion).

Having different methods for deciding disputes of fact may also mean having different decisionmakers. Thus, to determine who will decide a particular dispute of fact in the course of reaching a final judgment in a case, we need to know the purpose for which the fact determination is being made-whether or not the fact determination is part of the court's reasoning in arriving at a lawmaking choice.⁽¹⁵⁾

Davis' and Keeton's "adjudicative facts" are simply case-specific facts. Who, what, when, where, how. "Was the light red or was the light green'?" It was one or the other. There may be conflicting evidence about the color of the light and the decisionmaker must determine how much weight to give each piece of evidence, but either way, it is an historical fact that the light was actually red or green (even if the factfinder gets it wrong). The outcome is material only in that particular case. No other court will look to this factual finding to see whether the light in another case was red or green.

Davis' "legislative facts" and Keeton's 'premise facts," on the other hand, require judgments that go beyond the individual case. They call upon the decisionmaker to characterize information or to determine how things "should" be. Determination of these "facts" will affect other cases by establishing a point of comparison or precedent.

Legislative facts are also often based on predictions or evaluations of future events. When this is the case, time and more information will prove the prediction to be right or wrong. In other words, given time, legislative facts based on predictions may become historical facts.

Hunter indus. Facilities. Inc. V. Texas Natural Resource Conservation Corn 'n, 910 S.W.2d 96 (Tex.App.--Austin 1995, writ denied), the key case in the area of agency discretion to change an ALJ's findings, provides examples of the distinctions between adjudicative facts and legislative facts, as well as between questions of fact and questions of law. It also illustrates that it can be difficult to fact - as "adjudicative" or characterize a "legislative."

Hunter Industries sought judicial review of the agency's denial of its application for hazardous waste disposal permits. The company proposed to dispose of hazardous waste by injecting it into abandoned salt domes, an experimental approach to hazardous waste disposal. The proposal for decision issued by the hearings examiner recommended granting some of the permits, but the agency changed key findings by the ALJ in reaching its decision to deny all of the permits. The agency's discretion to change the examiner's findings and conclusions was governed by the Solid Waste Disposal Act, § 361.0832.

The ALJ in Hunter had to decide many questions of adjudicative fact-who, what, where, and when. At issue were questions about the particular salt domes for which permits were sought regarding capacity, location of boundaries, permeability of subsurface structures, etc. These are adjudicative facts--each salt dome is different and the findings about a particular geologic structure will not be material in other cases.

An example from Hunter of a legislative factual issue was whether there was a "substantial and obvious need" for the proposed facility, a finding required under the regulations.⁽¹⁶⁾The applicant produced evidence using its proposed method which indicated that the future shortfall in waste disposal capacity would reach over 13 million tons. Contrary evidence produced using a different method indicated a projected 1.5 million ton shortfall. Once the ALJ determines the tonnage, the ALJ must determine whether that amount constitutes a "substantial and obvious need" for the proposed facility, i.e., a shortfall. Whatever the actual tonnage, characterizing it as a "shortfall" establishes a precedent for other cases. This is a legislative fact. The Hunter court held that the agency does have the discretion to make these determinations and to reject a contrary ALJ finding. The court recognized that these questions are within the agency's "technical knowledge and expertise" to determine.⁽¹⁷⁾ This is the type of issue that we want to empower the agency to decide.

Sometimes it can be difficult to distinguish between an adjudicative fact and a legislative fact. Consider this example from Hunter. TNRCC hazardous waste disposal regulations require an applicant for the type of permit involved in Hunter to provide a "thorough geologic characterization of the salt dome" to be used for waste disposal. One issue in the case was whether the applicant had complied with this requirement. Is this an adjudicative fact or a legislative fact? Technology in the field of determining geologic formations is advancing. As science develops more accurate means of measurement, the exact boundaries of a salt dome become more capable of determination. What any particular method yields is an adjudicative fact. Whether that particular method is characterized as "thorough" is a legislative fact, albeit one that turns in part on adjudicative facts about reliability and accuracy.

The ALJ in Hunter heard evidence from both sides on which method should be used to characterize a salt dome. The same evidence on the same question would be admissible in other salt-dome cases. While determination of the proper method to characterize a salt dome may be said to be a factual finding, acceptance of a method as one that provides a "thorough geologic characterization" will set standards or precedents for other similar cases. The finding of which method should be used, then, may be said to be a finding as to a "legislative" fact.

Why is the distinction between adjudicative and legislative facts important? Because understanding the role a particular fact finding plays in the ultimate decision determines who should be responsible for making the finding. Where the fact is material only to deciding a particular case-where it as an adjudicative fact-we want the final decision to rest with the ALJ for several reasons.

First, the ALJ is a disinterested hearings officer. We trust the ALJ to call them as they are. We distrust the agency, who, after all, has an interest in the proceeding. Second, the ALJ, unlike the agency or later the court, has focused entirely on the proceeding and presumably has heard all of the evidence. Third, as part of hearing the evidence, the ALJ, again unlike the agency or later the court, has seen the demeanor of the witnesses. We hear demeanor talked about so often as to make it sound trite, but seeing the cross-examination of live witnesses is truly a superior fact-finding method. As the United States Supreme Court noted in an early ease, we will be less likely to trust an agency's finding "when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's."⁽¹⁸⁾

Finally, even where focus or demeanor are not factors, efficiency considerations weigh in favor of empowering the ALJ with final decisionmaking authority on adjudicative facts. The ALJ heard the case. We do not want to relitigate the facts at each subsequent step of review. For reasons in part of efficiency, as to adjudicative facts, it is the ALJ's call.

However, where the fact is a legislative fact-we want the final decision to rest with the agency. We spoke a moment ago of "trust." While we trust the disinterested ALJ as a hearing officer to call it as it is in the context of a single case, we distrust the ALJ to make policy for all cases. The ALJ is a single person of unknown predilections and politics. Moreover, the ALJ is unaccountable to the rest of us, except to the extent their decision is subject to review. The agency, on the other hand, is designed to make policy and is accountable for the policy it makes.

IV. THE MODELS

We have identified six "models" governing agency authority to change ALJs' findings. Each of these models is used in one or more of the statutory provisions currently in effect.⁽¹⁹⁾ Understanding the applicable model will enable a party in a contested case governed by any statute using that model to better prepare for or respond to challenges that the agency improperly changed an ALJ's finding.

A. Only for Reasons of Policy

This language is found in the Administrative Procedure Act, TEX. GOV'T CODE ANN. § 2001.058(e) (applicable to findings of fact or conclusions of law); and the Solid Waste Disposal Act, TEX. HEALTH & SAFETY CODE ANN. § 361 .0832(e) (applicable to ultimate findings of compliance with a statutory standard).

This model immunizes the ALJ's findings from revision by the agency, except when the agency can point to a reason of policy. Rightfully, the Legislature believed that developing and implementing policy is the proper realm of the agency, and authorized rejecting an ALJ decision where policy requires it. Some commentators writing on this standard have focused on finding a definition of the term "policy" in attempting to guide agencies in complying with the statute.⁽²⁰⁾ Determining what constitutes policy is an important first step, but compliance with this model requires more--it requires the agencies to explain in their orders why the ALJ's finding that the agency seeks to change is in conflict with that policy. Take, for example, the statement "it is the policy of this agency to promote the safety and protect the health of the citizens of Texas." This is a statement of policy, but it does not tell the parties or the reviewing court why the ALJ's finding must be changed, which is the statutory requirement.

As explained above, policy considerations may appropriately justify changes to an ALJ's erroneous finding of a legislative fact or a legal matter, but not to an adjudicative fact. Where the agency wants to change an adjudicative fact finding, the only options available to the agency under this provision are to adopt the order with the ALJ's facts, or come up with some "reason of policy" to reject the findings.

Given these two options, state agencies have been very creative in developing "policy" reasons to support changing an adjudicative fact found by an ALJ. For example, the Professional Counselors Examiners Board promulgated the following rule:

To protect the public interest and to ensure that appropriate principles govern the decisions of the board, it is the policy of the board to change a finding of fact or conclusion of law or to modify the proposed order of an administrative law judge when the board determines that the proposed order is: (A) against the weight of the evidence; (B) based on misapplication or misinterpretation of laws, rules, or policies; (C) based on insufficient review of the evidence; (D) not sufficient to protect the public interest with respect to the recommended disciplinary action; or (E) not appropriate recognition of whether or not rehabilitation of the licensee or applicant has occurred with respect to the recommended disciplinary action.⁽²¹⁾

The Board has compiled a laundry list of every imaginable scenario in which it may want to change an ALJ's ruling. But promulgating a rule and calling it agency "policy" is not what the Legislature had in mind when it enacted these provisions restricting the agencies' authority to change a finding. The Board's rule, if given effect, would put the agency right back in the position is was in before the enactment of these provisions-that of having unlimited discretion to change a finding.

What, then, is a "policy reason" sufficient to comply with the requirements of these statutes? Simply put, it is a principle that the ALJ got wrong that applies beyond the case. Where adjudicative facts are concerned, there are no "policy reasons" for changing a finding. The facts are material only in that case, so the agency has no power to change those findings. But with law, policy, and legislative facts, a principle identified by the agency and material to other cases as well as the contested case will support its decision to change an ALJ's finding.

B. Not Supported by the Great Weight of the Evidence

"Not supported by the great weight of the evidence" is found in the Solid Waste Disposal Act, TEX. HEALTH & SAFETY CODE ANN. § 361 .0832(c) (applicable to underlying findings of fact).

In authorizing the commission to overturn an underlying finding of fact "not supported by the great weight of the evidence," this model gives the agency more discretion in reviewing adjudicative factual findings than does the model "only for reasons of policy."

The meaning of this provision was considered by the court of appeals in Hunter. What the court in Hunter said was that "not supported by the great weight" does not mean the same as "against the great weight," a term of art used in the review of a jury verdict to mean that the evidence favoring the proponent is so strong that a verdict against the proponent must be set aside. The court also said that "the legislature intended to significantly restrict the Commission's discretion to reject an examiner's underlying fact findings," and that "the Commission is no longer permitted to overturn an examiner's underlying finding of fact because it would have reached a contrary decision."⁽²²⁾ But while the court said what the standard was not, the court did not say what the standard was.

In our opinion, the legislature intended to authorize an agency to change a fact finding in situations analogous to when a trial judge would disregard a jury verdict. The agency cannot reweigh the evidence and substitute its judgment for the ALJ, but the agency can correct grossly aberrational results, just like a trial judge can disregard a grossly unfair verdict. The court of appeals appears to have rejected this analogy, but perhaps wrongly so. Too much was made of the distinction between "not supported by the great weight" and "against the great weight." The Hunter court noted that "the legislature chose not to use the well-understood language [of against the great weight] and opted instead for a 'not supported by the great weight' standard."⁽²³⁾ But there is a simple explanation for the legislature's choice of language that squares with our reasoning.

In reviewing jury verdicts, there are two factual sufficiency challenges, each with its own terminology. To refresh your recollection, we have attached a chart. The first is a challenge by the proponent that a negative finding should be set aside because it is "against the great weight of the evidence." The second is a challenge by the opponent that an affirmative finding should be set aside because it is "not supported by sufficient evidence." The phrase "not supported by the great weight of the evidence" appears to merely merge the terms of art that have developed in factual sufficiency cases into one all-purpose standard governing challenges of either an affirmative finding favoring the proponent or a negative finding favoring the opponent.

Because the legislature appears to have borrowed from the factual sufficiency jurisprudence, we suggest looking to that area of the law for guidance on the agency's role in reviewing ALJ factual findings under this "merged" standard. In an excellent article on the topic of factual sufficiency, Prof William Powers, Jr. and Prof Jack Ratliff discuss the difficulty of devising a clear test for factual sufficiency points.

The decision necessarily turns on a process that is incapable of formulation, because its purpose is to allow the judge to correct a miscarriage of justice even when no formula or specific standard compels the correction. The language from appellate opinions offers little help. Courts are told that the jury's findings should not be disturbed unless the verdict is "manifestly unjust," or such as to "shock the conscience" or "clearly demonstrate bias." Yet, these are findings on questions which have gone to the jury only because reasonable minds could differ on the answers. Furthermore, courts of appeals arc told to "weigh all of the evidence" but not "reweigh" it. Perhaps the most helpful description of limits on the granting of new trials for factual insufficiency is the one suggested by Professors Wright and Miller for federal courts. They suggest that although a trial court does not "sit to approve miscarriages of justice," it should have a "decent respect for the collective wisdom of the jury" and accept the verdict in most cases.⁽²⁴⁾

Likewise, the agency should not be allowed to reweigh the evidence on factual findings and should have "a decent respect" for the decisions of the ALJ, who heard the evidence and is trained in making factual determinations. The agency should depart from the ALJ's findings in only the grossly aberrational cases. This comports with the intention of the legislature that the discretion to reject an examiner's findings be "significantly" restricted.⁽²⁵⁾

Does it matter whether the fact reviewed is an adjudicative fact or a legislative fact? Review of Hunterindicates that the court may have actually applied the "not supported by the great weight" standard to give the agency more discretion to reject the ALJ's findings on legislative facts than on adjudicative facts. The court deferred to the commission's decision on a legislative fact issue: the amount of future waste disposal capacity shortfall.⁽²⁶⁾ The court stated in its discussion on that issue that "[t]he Commission . . . has the discretion to discount evidence that it does not consider credible."⁽²⁷⁾ However, the court was not so deferential to the Commission on its decision to overturn an adjudicative fact finding: that the applicant had established its ability to obtain funding to construct the facility.⁽²⁸⁾ The court stated that "[b]ecause [the applicant) provided at least one viable plan for construction financing, the Commission improperly applied [the standard) to overturn the examiner's findings."⁽²⁹⁾ The level of discretion imparted to the commission appears to be based on the type of issue involved: the one that reaches beyond the case justifies greater agency discretion than does the one affecting only that contested case. This fits with our own analytic framework.

C. Not supported by a preponderance of the evidence or Shall be based solely upon the record made before the administrative law judge

"Not supported by a preponderance of the evidence" is found in the Administrative Procedure Act, TEX. GOV'T CODE ANN. § 2003.047(g)(1)(B) (applicable to the Public Utility Commission on findings of fact); and in the Agriculture Code. TEX. AGRIC. CODE ANN. § 12.020(t)(l)(B) (applicable to the Department of Agriculture on findings of fact). "Shall be based solely upon the record made before the administrative law judge" is found in the Insurance Code, TEX. INS. CODE ANN. art. I .33B(c)(5) (Vernon Supp. 1997); and in the Administrative Procedure Act, TEX. GOV'T. CODE ANN. 2003.047(i)(2) (applicable to the Texas Natural Resource Conservation Commission, except in cases governed by the Solid Waste Disposal Act).

These standards are very deferential to the agency on adjudicative fact issues. "Not supported by a preponderance of the evidence" does not require that the ALJ's finding be a gross aberration (as does "not supported by the great weight"), but merely that slightly more evidence supports an opposite finding. "Shall be based solely upon the record" imposes virtually no restriction upon the agency's discretion to change a finding, except that the agency may not consider evidence that was not before the ALJ. These provisions do contain a requirement that the agency explain its decision. While explaining is not a part of the standard governing their authority to change a finding, the agency must nevertheless explain its decision in order for the decision to withstand a challenge based on improper procedure. The requirement that agencies explain their reasoning is discussed in Part V.B of this article.

D. Clearly erroneous in light of precedent - and applicable rules

This provision is found in the Solid Waste Disposal Act, TEX. HEALTH & SAFETY CODE ANN. § 361.0832(d) (applicable to conclusions of law).

This model establishes a "clearly erroneous" standard for an agency overturning a question of law decided by an ALJ. Does this mean that if the ALJ got it wrong, but not clearly wrong, the agency cannot change the conclusion? Does this create the anomaly that all questions of first impression are necessarily decided solely by the ALJ? Of course, this is silly. The statute's use of the term "clearly erroneous" is inexplicable. To begin with, "clearly erroneous" is a standard applied to factual findings, not legal conclusions. For example, the Hunter court cites United States v. United States Gypsum Co.. 333, U.S. 364, 395, 68 S.Ct. 525, 542 (1948), where the U.S. Supreme Court was reviewing factual findings in an action tried without a jury. The test borrowed by the Hunter court from the U.S. Supreme Court in Gypsum is that "(a] finding is considered clearly erroneous when the reviewing body 'is left with the definite and firm conviction that a mistake has been committed."'⁽³⁰⁾ This test makes sense m the context of fact finding, but what does it mean with regard to legal conclusions? It means only "got it wrong." Who, after all, does not have a definite and firm conviction about someone else's mistaken legal reasoning?

E. If the agency determines that the ALJ did not properly apply or interpret applicable law; agency rules, written policies, or prior administrative decisions; or that a prior administrative decision on which the ALJ relied is incorrect or should be changed

This language is found in the Administrative Procedure Act, TEX. GOV'T. CODE ANN. § 2003.047(g)(1)(A) and (g)(2) (applicable to the Public Utility Commission on findings of fact and conclusions of law); in the Agriculture Code, TEX AGRIC. CODE ANN. § 12.020(t)(1)(A) and (2) (applicable to the Department of Agriculture); and in Senate Bill 332, to become TEX. GOV'T CODE ANN. § 2001.058(e)(1) and (2) (applicable to occupational licensing agencies on findings of fact and conclusions of law).

This model defers to the agency's interpretation of its statute and recognizes the authority of the agency to retain control over its own rules, policies, and prior decisions. The agency has complete discretion to change the decision of the ALJ where the findings reflect a lack of understanding or a misapplication of the existing laws, rules, or policies. Also, where the ALJ correctly applied precedent, but changing circumstances necessitate a change in that prior decision, the agency is empowered to enact that change.

Although this standard is expressly applicable to both conclusions of law and findings of fact, in reality it does not empower the agency to change an ALJ's decision on an adjudicative fact because no policy with impact beyond the case will touch on the finding.

F. Technical error in a finding of fact

This standard is found in Senate Bill 332, to become TEX. GOV'T CODE ANN. §2001.058(e)(3) (applicable to occupational licensing agencies). This language appears to authorize the agency to change a factual finding which includes a mistake that even the ALJ would have corrected, had the mistake been brought to their attention. In a similar vein, another interpretation might be that this standard authorizes the agency to make changes to factual findings that do not require reversal of the ultimate decision of the ALJ. In other words, 'technical errors" would be defined as trivial, formal or merely academic errors committed in the course of the trial which do not prejudice the party and thus are not grounds for reversing a judgment or order.⁽³¹⁾ The agency, reviewing the ALJ's decision, would be expressly authorized to change the erroneous finding before issuing the final order, but the ultimate recommendation of the ALJ (e.g., to grant the license) would become the final decision.

V. HOW TO COMPLY

Section 2001.174 of the APA governs judicial review of the decisions of administrative agencies. That provision authorizes the court to reverse or remand an agency determination when "(2) . . . the administrative findings, inferences, conclusions, or decisions are: (A) in violation of a constitutional or statutory provision; [or] (B) in excess of the agency's statutory authority."⁽³²⁾ As Hunter established, because the agencies' discretion to change an ALJ's findings and conclusions is not curtailed by statute, failure to comply with the statutory requirements in overturning those findings and conclusions empowers the court to reverse or remand the decision on the basis of § 2001.174(2)(A) or (B).⁽³³⁾ A party challenging the decision might also argue that it is in violation of § 2001.1 74(2)(F), i.e., arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. So how do you survive such a challenge?

There are two steps that agencies can take to shore up their final orders against challenges that they improperly changed an ALJ's findings: identify and explain.

A. Identify

First, identify the type of finding that the agency wants to change. Is it a legal conclusion or factual finding? If it is a legal conclusion, move to the next step--explain why it is wrong as a matter of law. If it is a factual finding, is it legislative or adjudicative? If it is legislative, move to the next step--explain why it is wrong as a matter of policy. If it is adjudicative, however, you have more work to do before you can begin to explain.

Your authority to change an adjudicative decision is determined by which of the above models governs your agency. If you are governed by the models under Part IV. A⁽³⁴⁾ or E⁽³⁵⁾ above: give up. This is a decision you don't get to make. This is a bitter pill to swallow, but if it is truly an adjudicative fact, then it is just one case. Don't cheat by attempting to create a fictitious policy reason.

If you are governed by the model discussed in Part IV. B⁽³⁶⁾ (which means you are the TNRCC and this is a SWDA case): you must determine whether this finding is a gross aberration. Is the weight of the evidence so against this finding that a trial court would have ordered a new trial had this verdict been rendered? If so, move to the next step. If not, you are not empowered to change this finding simply because you would have reached a different decision.⁽³⁷⁾

If you are governed by the models found in Part IV. C⁽³⁸⁾ above: you have alm6st unlimited discretion to change an adjudicative factual finding. Move on to the next step.

If you are governed by the model discussed in Part IV. F⁽³⁹⁾: go ahead and correct the error. The finding itself may be challenged on a substantial evidence basis, but the decision to change the finding will not survive a challenge because it does not affect the outcome of the case. It is either a mistake that the ALJ would agree to changing, or it is harmless error. Move to the next step.

B. Explain

Each statute regulating an agency's authority to change an ALJ's findings requires the agency to state in writing the reasons for doing so. The requirement serves to encourage careful consideration by the agency of the actual reasons for making the changes to the ALJ's findings; and to provide a basis on which the affected parties and a reviewing court can gauge compliance with the statutes governing the agency's authority to change the findings. It is here that the agency can most effectively protect itself against challenges that it improperly changed the ALJ's findings.

1. Evidentiary questions

Where the agency proposes to change an adjudicative fact finding, the standards "not supported by the great weight of the evidence" and "not supported by a preponderance of the evidence" compel the agency to show that at least slightly more of the probative evidence in the record supports a finding different than that of the ALJ. To establish that it does, the agency must detail in the order the evidence on both sides of the fact issue. Do not simply list the evidence that supports the fact as found by the agency, but list the evidence on both sides of the dispute so that a reviewing court can see that the evidence indeed preponderates in favor of the agency's decision (if it is a "not supported by a preponderance" standard); or that the ALJ's finding is grossly aberrational (if it is a "not supported by the great weight" standard).

See the discussion in Pool V. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986), about how to explain the rejection of fact findings. A review of cases following Pool will illustrate how this is done. An agency following the examples set out in those cases would give the affected parties and the reviewing court a clear picture of the evidence on both sides of the issue and of why the agency believes it is justified in changing an ALJ's factual finding.

2. Law and Policy matters

Where the agency proposes a change to a conclusion of law or a finding as to a legislative fact, the agency must provide a specific reason and legal basis for rejecting or modifying the ALJ's finding. We read the

statutes to require more from the agency than a statement of policy, or a reference to agency rules or regulations. Instead, the statutes mandate an explanation of the reason that the ALJ's decision was wrong and must be changed. Compliance with the requirement means the agency must articulate why the ALJ's finding conflicts with a policy of the agency that requires the finding to be changed. Avoid form statements that merely refer to agency rules and regulations, for example: "the reasons of policy and legal basis for the changes are: the authority of the Board to revoke or suspend a license and the rules of the Board." Such a statement may state a valid policy and refer to an existing rule, but it lacks the specificity required to determine how the ALJ got it wrong. Don't make the reviewing court guess at how the referenced rule supports the change.

Taking the time and making the effort to carefully articulate the reason for changing an ALJ's finding or conclusion will increase an agency's probability of surviving a challenge to that decision.

VI. SHOULD BE

As promised back on page 2, we have a not-yet thoroughly baked idea as to how the law might better allocate power between the ALJ and the agency. Why not give the agency the same right as the other parties in a contested case: the right of appeal of the decision to court? Under such a plan, where the agency is prohibited from changing an adjudicative fact finding, the final order reflects the facts as found by the ALJ. Review by the court would be conducted using the substantial evidence standard: could reasonable minds have reached the conclusion that the ALJ must

have reached in order to justify the finding?⁽⁴⁰⁾ If so, the finding stands. If, however, the agency prevails in persuading the court that the finding is not supported by substantial evidence, the court may remand for further findings or reverse the ALJ, depending Qn the circumstances of the case.

This approach has the - advantage of taking the pressure off the agency to develop a phony policy reason to change adjudicative fact decisions. It also has the advantage of collapsing all the various models of review of adjudicative facts into one model familiar in administrative law-substantial evidence. Most important, it seems to appropriately allocate decisionmaking power between the ALJ and the agency. If a reasonable fact finder could have found the adjudicative facts as did the ALJ, then the ALJ's finding is sustained. If not, the agency appropriately substitutes its own finding.

Some might say that it is an anomaly for the agency to appeal from its own final order. Administrative law, however, is built on this very anomaly. At various points, an agency combines the legislative, the executive, and the judicial. In an enforcement case, for example, the agency has historically played the roles of both prosecutor and the judge: While the current Administrative Procedure Act does not grant a right of appeal to the agency, the appeal provision of the APA was enacted when agencies had unlimited discretion to change ALJ recommendations, meaning agencies were never caught in a situation where they were statutorily prohibited from changing a factual finding before issuing the final order. Now that agency authority is limited, perhaps the agency should have a right to appeal.

As the ALJ/agency relationship has developed, some legislation has recognized the need for the agency to have a right of appeal where its authority to change a finding is restricted. Senate Bill 332, for example, provides that, where an agency has adopted a rule authorizing the ALJ to render a final decision, "the occupational licensing agency and any other party to the contested case is entitled to obtain judicial review of the final decision in accordance with this chapter."⁽⁴¹⁾ Perhaps this approach should be extended.

VII. CONCLUSION

We hope this analysis has been helpful. We caution that this is an emerging area of the law. However it may appear to us now, later it may appear differently. Nevertheless, we offer these thoughts to assist in the important ongoing effort to properly allocate the decisionmaking power between the ALJ and the agency.

APPENDIX: RELEVANT STATUTES

A. The Administrative Procedure Act

A state agency may change a finding of fact or conclusion of law made by the administrative law judge, or may vacate or modify an order issued by the administrative law judge, only for reasons of policy. The agency shall state in writing the reason and legal basis for a change made under this subsection.

TEX. GOV'T CODE ANN. § 2001.058(e)(Vernon Pamph. 1997).

B. The Solid Waste Disposal Act

I.(c) The commission may overturn an underlying finding of fact that serves as the basis for a decision in a contested case only if the commission finds that the finding was not supported by the great weight of the evidence. (d) The commission may overturn a conclusion of law in a contested case only on the grounds that the conclusion was clearly erroneous in light of precedent and applicable rules. (e) If a decision in a contested case involves an ultimate finding of compliance with or satisfaction of a statutory standard the determination of which is committed to the discretion or judgment of the commission by law, the commission may reject a proposal for decision as to the ultimate finding for reasons of policy only. (f) The commission shall issue written rulings, orders, or decisions in all contested cases and shall fully explain in a ruling, order, or decision the reasoning and grounds for overturning each finding of fact or conclusion of law or for rejecting any proposal for decision on an ultimate finding."

TEX. HEALTH & SAFETY CODE ANN. § 361.0832 (Vernon 1992).

C. APA Chapter 2003. State Office of Administrative Hearings-Utility Division

1. (b) The utility division shall conduct hearings relating to contested cases before the commission. other than a hearing conducted by one or more commissioners. The commission by rule may delegate the responsibility to hear any other matter before the commission if consistent with the duties and responsibilities of the division.

   ...

   (g) Notwithstanding Section 2001.058, the commission may change a finding of fact or conclusion of law made by the administrative law judge or vacate or modify an order issued by the administrative law judge only if the commission:

   (1) determines that the administrative law judge:

   (A) did not properly apply or interpret applicable law, commission rules or policies, or prior administrative decisions; or

   (B) issued a finding of fact that is not supported by a preponderance of the evidence; or

   (2) determines that a commission policy or a prior administrative decision on which the administrative law judge relied is incorrect or should be changed.

   (11) The commission shall state in writing the specific reason and legal basis for its determination under Subsection (g).

TEX. GOV'T CODE ANN. § 2003.047, Utility Division

D. Labor Code

(1))In a case in which a hearing is conducted by the State Office of Administrative Hearings under Section 411.049, 413.031, or 415.034, the administrative law judge' who conducts the hearing for the State Office of Administrative Hearings shall enter the final decision in the case after completion of the hearing.

(c) In a case in which a hearing is conducted in conjunction with Section 402.072, 407.046, or 408.023, and in other cases under this subtitle that are not subject to Subsection (b), the administrative law judge who conducts the hearing for the State Office Of Administrative Hearings shall propose a decision to the commission for final consideration and decision by the commission.

TEX. LABOR CODE ANN. § 402.073 (Vernon 1997).

E. Transportation Code

(a) If the administrative law judge finds in the affirmative on each issue under Section 724.042, the suspension order is sustained. If the person is a resident without a license, the department shall continue to deny to the person the issuance of a license for the applicable period provided by Section 724.035.

(b) If the administrative law judge does not find in the affirmative on each issue under Section 724.042, the department shall reinstate the person's license or rescind any order denying the issuance of a license because of the person's refusal to submit to the taking of a specimen under Section 724.032(a).

TEX. TRANSPORTATION CODE ANN. § 724.043 (Vernon 1997).

F. S.B. 332: To amend the Administrative Procedure Act

1. An Act relating to the decisions of certain administrative law judges in occupati9nal licensing contested cases and to judicial review of those decisions. . . . Section 2001.058, Government Code, is amended by amending Subsection (e) and adding Subsection (f) to read as follows: (e) A state agency may change a finding of fact or conclusion of law made by the administrative law judge, or may vacate or modify an order issued by the administrative judge. only if the agency determines: (I) that the administrative law judge did not properly apply or interpret applicable law, agency rules, written policies provided under subsection (c), or prior administrative decisions; (2) that a prior administrative decision on which the administrative law judge relied is incorrect or should be changed; or (3) that a technical error in a finding of fact should be changed. The agency shall state in writing the specific reason and legal basis for a change made under this subsection.

(f) A state agency by rule may provide that, in a contested case before the agency that concerns licensing in relation to an occupational license and that is not disposed of by stipulation, agreed settlement, or consent order, the administrative law judge shall render the final decision in the contested case. if a state agency adopts such a rule, the following provisions apply to contested cases covered by the rule: . . (5) the occupational licensing agency and any other party to the contested case is entitled to obtain judicial review of the final decision in accordance with this chapter....

Sec. 2003.042. POWERS OF ADMINISTRATIVE LAW JUDGE. An administrative law judge may: . . . (6) if expressly authorized by a state agency rule adopted under Section 2001.058(f), make the final decision in a contested case.

S.B. 332, 75th Leg., R.S. (1997), to be codified at TEX. GOV'T CODE ANN. § 2001 .058(e)-(f) and 2003.042 (effective September 1, 1997).

G. The Insurance Code

The commissioner may amend the proposal for decision, including any finding of fact, but any such amendment thereto and the order of the commissioner promulgating the rate shall be based solely upon the record made before the administrative law judge. Any such amendment by the commissioner may refer the matter back to the administrative law judge to reconsider findings and conclusions set forth in the proposal for decision or to take additional evidence or to make additional findings of fact or conclusions of law.

TEX. INS. CODE ANN. art. l.33B(c)(5) (Vernon Supp. 1997).

H. APA Chapter 2003. State Office of Administrative Hearings--Natural Resource Conservation Division

The commission may amend the proposal for decision, including any finding of fact, but any such amendment thereto and order shall be based solely on the record made before the administrative law judge. Any such amendment by the commission shall be accompanied by an explanation of the basis of the amendment. The commission may also refer the matter back to the administrative law judge to reconsider any findings and conclusions set forth in the proposal for decision or take additional evidence or to make additional findings of fact or conclusions of law.

TEX. GOV'T CODE ANN. § 2003.047(i)(2) (Vernon Pamph. 1997), Natural Resource Conservation Division

CHART: FACTUAL SUFFICIENCY

FOOTNOTES

1. Robert E. Keeton, Judging 28 (1990).

2. REPORT TO THE 75th LEGISLATURE, Texas Senate Committee on State Affairs, September 1996, p.1.

3. REPORT TO THE 75th LEGISLATURE, Texas Senate Committee on State Affairs, September 1996, p.1.

4. REPORT TO THE 75th LEGISLATURE, Texas Senate Committee on State Affairs, September 1996, p.3, citing to the Texas State Office of Administrative Hearings, Agency Strategic Plan for the 1992-98 Period (Austin, 1992), 4.

5. TRAVIS COUNTY BENCH BOOK 1-14 (1996) and interview with Phillip A. Holder, Deputy chief Administrative Law Judge, State Office of Administrative Hearings, June 24, 1997.

6. TEX. GOV'T CODE ANN. § 2003.041(b) (Vernon Pamph. 1997).

7. REPORT TO THE 75th LEGISLATURE, Texas Senate Commit tee on State Affairs, September 1996, p.1.

8. TEX. GOV'T CODE ANN. § 2003.047(d) (Vernon Pamph. 1997).

9. S.B. 323, 75th Leg.., R.S. (1997), to be codified at TEX. GOV'T CODE ANN. § 2003.0451.

10. CHARLES H. KOCH, JR, ADMINISTRATIVE LAW AND PRACTICE 29 (1985).

11. See, e.g., Public Util. Comm'n v. Gulf States Utils.Co., 809 S.W.2d 201, 207 (Tex. 1991)

12. E.g., TEX. GOV'T CODE ANN. § 2OO1.058(c)(Vernon Pamph. 1997).

13. K. C. DAVIS, TREATISE ON ADMINISTRATIVE LAW § 15.03 at 353 (2d ed. 1979).

14. Keeton prefers the term "premise fact" to Davis' "legislative fact."

15. KEETON, supra, 39-40 (emphasis added).

16. Hunter, 910 S.W.2d at 109-111.

17. Hunter, 910 S.W.2d at 111.

18. Universal Camera Corp. V. National Labor Rel. Bd., 340 U.S. 474, 496, 71 S.Ct. 456,469 (1951).

19. The statutory provisions have been set out in Appendix A attached to this article.

20. See. e.g., Williams, "For Reasons of Policy" Revisited: Who Has the Final Say?, State Bar of Texas 8th Annual Advanced Administrative Law Course, (September 1996) ("A policy, then, is.... an official pronouncement that sets forth the agency's position on how it is to carry out its statutory mandate."); Walker, Who is the Final Decision-maker in Contested Cases-SOAH or the Agency? State Bar of Texas 7th Annual Advanced Administrative Law Course, (September 1995)("'Policy' is defined in Black's Law Dictionary (199()) as 'the general principles by which a government is guided in its management of public affairs, or the legislature in its measures.'").

21. 22 TEX. ADMIN. CODE § 681.220(d)(2)(West 1997).

22. Hunter, 910 S.W. 2d at 103

23. Id.

24. William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEXAS LAW REVIEW, 515, 525-26 (Feb. 1991 )(citations omitted).

25. Hunter, 910 S.W.2d at 103.

26. Id. at 112.

27. Id. at 111.

28. Id. at 109.

29. Id.

30. Id. at 104.

31. BLACK'S LAW DICTIONARY, 6th ed. 1021(1991).

32. TEX. GOV'T CODE ANN. § 2001.174(2)(A)-(B)(Vernon Pamph. 1997).

33. Hunter, 910 S.W.2d at 105.

34. "Only for reasons of policy."

35. "If the agency determines that the ALJ did not properly apply or interpret applicable law, agency rules, written policies, or prior administrative decisions, or that a prior administrative decision on which the ALJ. relied is incorrect or should be changed."

36. "Not supported by the great weight of the evidence."

37. Hunter, 910 S.W.2d at 113.

38. "Not supported by a preponderance of the evidence" or "shall be based solely upon the record made before the administrative law judge."

39. "Technical error in a finding of fact."

40. Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.. 1994).

41. S.B. 332, 75th Leg., R.S. (1997)(to be codified at TEX. GOV'T CODE ANN. § 2001.058(f)(5), effective September 1, 1997).

Copyright © 1996-1998 State Bar of Texas Administrative and Public Law Section, All Rights Reserved.