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RULE §155.419Consideration of Policy Not Incorporated in Referring Agency's Rules

(a) Agency policy. A party relying on a specific, written agency policy not incorporated in a rule has the burden of authenticating the policy and showing it to be applicable to a factual or legal issue in the case.

(b) Judge's consideration of agency policy. In resolving contested issues, the judge shall consider any applicable agency policy not incorporated in the agency's rules that is written and supported by the evidence. The judge's decision or recommendation on whether to apply an agency's policy will depend upon the nature and context of the policy, any request to apply it, and other factors such as:

  (1) the extent to which the parties were given notice of the policy, including whether:

    (A) the policy was made available through a generally accessible internet site as provided in Tex. Gov't Code §2001.007(a);

    (B) the parties had adequate opportunity to address it in the presentation of their cases and arguments; and

    (C) a party opposes application of the policy in the case;

  (2) the specificity of the policy statement and the relative certainty of its applicability to the case;

  (3) the stability and duration of the policy, as illustrated by the type of process that led to its adoption (including whether it was published in the Texas Register), the frequency and consistency with which it has been previously applied, and the level of formality of the process required for the agency to amend it;

  (4) the highest level within the agency at which the policy has been adopted or ratified;

  (5) whether the policy is a substantive principle coming within the agency's subject matter expertise and jurisdiction or pertains more to contested case procedure and practice; and

  (6) whether application of the policy would violate applicable constitutional or statutory provisions or would be inconsistent with the agency's rules or applicable decisions by Texas courts.

Source Note: The provisions of this §155.419 adopted to be effective November 26, 2008, 33 TexReg 9451; amended to be effective January 1, 2017, 41 TexReg 8593

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