(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.
|