TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
NO. 03-98-00579-CV
Texas Alcoholic Beverage Commission, Appellant
v.
Amusement and Music Operators of Texas, Inc., Appellee
NO. 98-06901, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
While both agency statements address the legality of eight-liners, there the similarity ends. In Brinkley, the Lottery Commission, which regulates bingo parlors and any eight-liners placed in those halls, warned its licensees that eight-liners could be legal or illegal, depending on how they were configured and operated. The Lottery Commission sent out two letters to some 2500 licensees describing some of the criteria that might be used by the licensee to evaluate the legality of the eight-liners in their bingo halls. The first letter stated: "This notice is intended to make licensees aware of the agency's position and to afford an opportunity to licensees for voluntary compliance." The second included a warning that the guidelines were advisory and could not be guaranteed to determine legality. We held that these letters were advisory and non-binding on the licensee:
The letters sent by the Commission in this instance were, on their face, simply advisory guidelines; they did not purport to express a final opinion on the legality of eight-liners of any particular kind. We have previously noted the valuable role such advisory opinions serve in administration. . . . Considering the number of bingo-parlor licensees and the variety of ways in which eight-liners can be configured, the practical value of the letters is obvious. Nothing in the letters purports to foreclose an individual licensee from seeking, if he wishes, a formal opinion from the Commission regarding particular eight-liners. While private parties may voluntarily comply with such guidelines, they are not legally bound to do so.
Brinkley, 986 S.W.2d at 770 n.9.
By contrast, the memoranda issued by the Alcoholic Beverage Commission in this case impose binding instructions on law enforcement agents that affect the private rights of all owners of eight-liners. They are agency statements that implement, interpret or prescribe law or policy; they amend or repeal a prior enforcement policy of the Commission; and they do not constitute statements regarding only the internal management or organization of the Commission without affecting private rights. Clearly, they are statements of general, not particular, applicability. In WBD Oil & Gas Co. v. Railroad Commission of Texas, No. 3-97-002-CV (Tex. App.--Austin Feb. 4, 1999, reh'g filed), we determined that field rules of the Railroad Commission that satisfied this literal statutory definition could confer jurisdiction for a declaratory judgment action challenging the rules' validity under APA section 2001.038. See slip op. at 15. We follow that holding here.
Bea Ann Smith, Justice
Before Justices Jones, B. A. Smith and Yeakel
Appellant's Motion for Rehearing Granted
Filed: July 29, 1999
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NO. 03-98-00579-CV
Texas Alcoholic Beverage Commission, Appellant
v.
Amusement and Music Operators of Texas, Inc., Appellee
NO. 98-06901, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
While both agency statements address the legality of eight-liners, there the similarity ends. In Brinkley, the Lottery Commission, which regulates bingo parlors and any eight-liners placed in those halls, warned its licensees that eight-liners could be legal or illegal, depending on how they were configured and operated. The Lottery Commission sent out two letters to some 2500 licensees describing some of the criteria that might be used by the licensee to evaluate the legality of the eight-liners in their bingo halls. The first letter stated: "This notice is intended to make licensees aware of the agency's position and to afford an opportunity to licensees for voluntary compliance." The second included a warning that the guidelines were advisory and could not be guaranteed to determine legality. We held that these letters were advisory and non-binding on the licensee:
The letters sent by the Commission in this instance were, on their face, simply advisory guidelines; they did not purport to express a final opinion on the legality of eight-liners of any particular kind. We have previously noted the valuable role such advisory opinions serve in administration. . . . Considering the number of bingo-parlor licensees and the variety of ways in which eight-liners can be configured, the practical value of the letters is obvious. Nothing in the letters purports to foreclose an individual licensee from seeking, if he wishes, a formal opinion from the Commission regarding particular eight-liners. While private parties may voluntarily comply with such guidelines, they are not legally bound to do so.
Brinkley, 986 S.W.2d at 770 n.9.
By contrast, the memoranda issued by the Alcoholic Beverage Commission in this case impose binding instructions on law enforcement agents that affect the private rights of all owners of eight-liners. They are agency statements that implement, interpret or prescribe law or policy; they amend or repeal a prior enforcement policy of the Commission; and they do not constitute statements regarding only the internal management or organization of the Commission without affecting private rights. Clearly, they are statements of general, not particular, applicability. In WBD Oil & Gas Co. v. Railroad Commission of Texas, No. 3-97-002-CV (Tex. App.--Austin Feb. 4, 1999, reh'g filed), we determined that field rules of the Railr