Devvy Kidd John Kidd M. J. Shadden John Cole R.M.Daiey Tracy Stephens Patricia Stroyick Dorothy Morrow Charles Morrow Amy Williams David Williams Norman Kuehn Elizabeth Theiss Rebecca Gutierrez Marie Nugent Steve G. Crutchfield v. Texas Public Utility Commission AEP Texas Central Company AEP Texas North Company CenterPoint Energy Houston Electric, LLC Texas-New Mexico Power Company And Oncor Electric Delivery Company, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00661-CV

Devvy Kidd; et al.,1 Appellants

v.

Texas Public Utility Commission; AEP Texas Central Company; AEP Texas North
Company; CenterPoint Energy Houston Electric, LLC; Texas-New Mexico Power
Company; and Oncor Electric Delivery Company, LLC, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-12-003059, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

OPINION

This appeal can be considered a sequel of sorts to this Court’s recent Bonser-Lain

decision,2 in which we held in part that the remedies provided by the Administrative Procedure Act

1
In addition to Devvy Kidd, the appellants are John Kidd; M.J. Shadden; John Cole; R.M. Dailey;
Tracy Stephens; Patricia Stroyick; Dorothy Morrow; Charles Morrow; Amy Williams; David Williams; Norman Kuehn;
Elizabeth Theiss; Rebecca Gutierrez; Marie Nugent; Steve G. Crutchfield; Linda A. Crutchfield; Kendall C. Palmer;
M.A. Kirk; Kaydene Jordan; Bobby Jordan; Tom Brazen; David J. Allen; Patt Allen; David Scot Houlette; Denis
Lullenkamp; Kathy Lullenkamp; China Lanier; Donna Lee Wilson; Julia Nathan, M.D.; Giselle Ellis; Gerald Sawyer;
Beverely Hickman; Thomas Hickman; Cindy Carriger; Deborah Wiseman; Newly Sage; Russell Sage; Beth Biesel; Lacy
Crary; Dardine Roedel; Harold Boenig; Joyce Kelley; Brenda Denholm; Michael Denholm; Mark Atkins; Robert Paul;
Thelma Taormina; Nick Taormina; Sherman Rogers; Judy Chambers; Wayne Chambers; Jeffrey Emrich; Jill Freidman;
Dolores Bolock; Bruce Bolock; Jackqulyn Bodenstedt; Twyla Parsons; Amanda M. Voelkel; Michelle T. Voelkel; Nell
Reynolds; Stanley Reynolds; Katrina Evenhouse; Randall Evenhouse; Patricia Ignazio; Joseph Ignazio; Gina Gentile;
James Gentile; John Tyson; Steve Gagnon; Thomas Bailey; Alfreda Ballard; James Benge; Linda Rund; Frank Harriss;
Sam Harris; Lysbeth Warneke; Ralph Shawver; Shelley McCoy; Brian Dansby; Mo Bond; David Bond; John Buffa;
Melissa Gochnour; Jeffrey Gochnour; Amy Watkins; Donald Anderson; Carol Dean; Michelle Guy; Terry Guy; Evelyn
Montalvo; Abel Montalvo; Gay Armstrong; Dave Armstrong; Diane Wilson; John Wilson; Beatrice Worley; Lawrence
Worley; Eva Finegan; Patti Glass; Ken Glass; Dagne Florine, Ph.D.; Cynthia Wilkes; Michael Wilkes; Lolly Nayola;
John Tweedell; Carolynne Tweedel; Marita Segal; Howard Segal; Rita Trauth; Dr. Christopher Trauth; Toni White;
Janice Pearson; Ricky Pearson; JoAnn Louise Zant; Nathan Lloyd Zant; Hoi Heldt; Rochelle Wilkes; Corey Wilkes;
Daryl Hampton; Kathleen Grimes; Brian Grimes; Cindy Schafer; Mary Stayton; Ellen Mickle; Ingrid Stassi; Joe Stassi;
Gaye Haehnel; Billy Haehnel; Erin Konkel; Nancy Lochridge; Byron Lockridge; Gemi Powell; and Gregory Johnson.

2
Texas Comm’n on Envtl. Quality v. Bonser-Lain, 438 S.W.3d 887 (Tex. App.—Austin
2014, no pet.).
(APA)3 for challenging agency actions in court do not extend to authorizing suits to challenge an

agency’s refusal to promulgate rules.4 Here we consider whether, in an instance when an agency has

denied a petition requesting it to promulgate rules—a decision that cannot in itself be judicially

challenged under the APA, per Bonser-Lain—the APA has nonetheless conferred jurisdiction on

courts to enforce an asserted right of the petitioners to obtain a public hearing at which they

can present arguments and evidence to justify the rules they had requested. We conclude it does not.

BACKGROUND

While the underlying controversy encompasses a more diverse array of issues, the

facts material to the narrow jurisdictional questions before us are straightforward and undisputed.

The appellants are approximately 135 individuals who, with others, joined in filing a May 17, 2012

petition to the Public Utilities Commission requesting that the Commission initiate rulemaking

processes to address a number of perceived concerns related to the ongoing deployment of so-

called “Smart Meters” by Texas electric utilities. In their petition, appellants also prayed that the

Commission convene a public hearing at which they could present evidence of what they regarded

as the compelling need for the rules they had requested. The Commission docketed appellants’

petition as “Project No. 40404,” published notice of the petition, afforded an opportunity for public

comment, and received over 120 written comments, most of which favored the petition. However,

the Commission did not additionally convene the public hearing that appellants had requested.

On July 13, 2012, the Commission issued an order denying appellants’ rulemaking

petition. In the order, the Commission explained that it already had another project pending,

3
Tex. Gov’t Code §§ 2001.001–.902.
4
See Bonser-Lain, 438 S.W.3d at 893–94.

2
No. 40190, in which it had been studying the feasibility of an opt-out program “to address

[Petitioners’] concerns” about Smart Meters and in which it had received “extensive comments that

raise concerns like those in the petition in this project.” The Commission deemed it “more efficient

and effective . . . to consider smart meter concerns in one project,” and opted to “focus its

consideration of concerns about smart meters [in] Project No. 40190” instead of 40404.5

Seeking to challenge this administrative order in the Judicial Department, appellants

filed suit against the Commission in Travis County district court. As the suit originated, appellants’

claims sought primarily to compel the Commission to proceed with Project 40404 and initiate the

rulemaking they had sought in their petition, which had sought rules more expansive than merely

an opt-out program. Appellants also complained specifically of the Commission’s failure to afford

them the “full hearing and determination on the merits” they had requested, insisting that both the

APA and Commission rules guaranteed them that procedural right. To establish the district court’s

subject-matter jurisdiction over their claims (which, again, named the Commission as the defendant

and would have thereby implicated sovereign immunity),6 appellants purported to rely on the waiver

of immunity incident to the remedy provided by section 2001.038 of the APA, which authorizes “an

5
Ultimately, the Commission’s study of the issue would take the form of a third project,
No. 41111, which yielded rule provisions providing consumers a means of opting out of metering
by Smart Meters. See 38 Tex. Reg. 1328 (proposed Mar. 1, 2013), adopted 38 Tex. Reg. 5452
(Aug. 23, 2013), codified at 16 Tex. Admin. Code § 25.133 (eff. Sept. 1, 2013) (Non-Standard
Metering Service); 38 Tex. Reg. 1328 (proposed Mar. 1, 2013), adopted 38 Tex. Reg. 5452
(Aug. 23, 2013), codified as an amendment to 16 Tex. Admin. Code § 25.214 (eff. Sept. 1, 2013)
(Terms and Conditions of Retail Delivery Service Provided by Investor Owned Transmission
and Distribution Utilities). Unless otherwise indicated, all cites to 38 Tex. Admin. Code are to rules
promulgated by the Commission.
6
See, e.g., Bacon v. Texas Historical Comm’n, 411 S.W.3d 161, 172 (Tex. App.—Austin
2013, no pet.) (“Absent Legislative waiver, sovereign immunity deprives Texas courts of subject-
matter jurisdiction over any suit against the State or its agencies or subdivisions.” (citing Texas Dep’t
of Transp. v. Sefzik, 355 S.W.3d 618, 620–21 (Tex. 2011) (per curiam))).

3
action for declaratory judgment” against an agency to determine “[t]he validity or applicability of

a rule” where “it is alleged that the rule or its threatened application interferes with or impairs,

or threatens to interfere with or impair, a legal right or privilege of the plaintiff.”7 The Commission

answered and the other appellees identified in our caption intervened.

During the pendency of appellants’ suit, this Court issued its decision in Bonser-Lain.

That ruling prompted the Commission, with the briefing support of the other appellees, to file a plea

to the jurisdiction seeking dismissal of all of appellants’ claims based on Bonser-Lain’s holding

that the APA’s remedies do not authorize claims seeking to challenge an agency’s decision not to

promulgate rules.8 In response, appellants acknowledged that Bonser-Lain precluded any claims

purporting to seek judicial reversal of the Commission’s denial of their rulemaking petition.

However, appellants distinguished these claims focusing on the Commission’s denial of their

rulemaking petition, per se, from their claims complaining of the Commission’s failure or refusal

to convene a public hearing at which they could present argument and evidence to demonstrate the

need for the rules they had requested. While Bonser-Lain was fatal to the former claims, it did not

impact the latter, they insisted, because the APA and the Commission’s rules conferred upon them

7
Tex. Gov’t Code § 2001.038(a); see Slay v. Texas Comm’n on Envtl. Quality, 351 S.W.3d
532, 544 (Tex. App.—Austin 2011, pet. denied) (observing that section 2001.038 waives sovereign
immunity to the extent of the remedy the statute provides). Appellants’ pleading similarly purported
to invoke the right of judicial review provided under Subchapter G of the APA, which operates
with respect to a state-agency decision in a “contested case.” Tex. Gov’t Code § 2001.171;
see Texas Dep’t of Prot. & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 197
(Tex. 2004) (concluding that section 2001.171, by providing right of judicial review of agency
order in a “contested case,” waives sovereign immunity to extent of permitting that claim). At
this juncture, appellants do not appear to rely on Subchapter G as a basis for jurisdiction, and it is
plainly unavailing. See Tex. Gov’t Code § 2001.003(1) (defining “contested case” as “a proceeding,
including a ratemaking or licensing proceeding, in which the legal rights, duties, or privileges of a
party are to be determined by a state agency after an opportunity for adjudicative hearing”).
8
See Bonser-Lain, 438 S.W.3d at 893–94.

4
an “absolute procedural right” to present their position to the Commission through this public

hearing (and, perhaps, prompt subsequent Commission action) that was not dependant upon, nor

could be avoided by, the Commission’s denial of their rulemaking petition or whether that decision

could be challenged in court. Appellants similarly reasoned that the APA authorized them to enforce

these hearing rights in court and obtain a remand to the Commission for purposes of conducting the

public hearing.

The district court granted the Commission’s plea in its entirety and dismissed all of

appellants’ claims for want of subject-matter jurisdiction. It is from that final judgment that this

appeal is taken.

ANALYSIS

Appellants seek reversal of the portion of the district court’s judgment that dismissed

their claims seeking a public hearing. As refined by the briefing and oral argument on appeal,

appellants’ position rests upon two sets of basic contentions: (1) the APA and Commission rules

entitled them to a public hearing at which they could present evidence and argument to justify

the rules they had requested, and this “absolute procedural right” is not dependent upon, nor limited

by, the Commission’s decision not to grant their rulemaking petition; and (2) the remedy and

accompanying waiver of sovereign immunity provided by APA section 2001.038 authorizes

appellants to sue the Commission to enforce this right and obtain judicial relief compelling the

Commission to hold the hearing. Both sets of contentions rest principally upon construction of

the APA, which presents a question of law that we review de novo.9 We seek to ascertain the

Legislature’s intent, which is first and foremost a function of the objective meaning of the words it

9
See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

5
has used in the statute.10 We consider statutes as a whole rather than their isolated provisions.11

We presume that the statute’s language was chosen with care, with each word included, or

omitted, purposefully.12 We rely on the ordinary meaning of the words used, except where a

different meaning is supplied by legislative definition or is apparent from context, or unless such a

construction leads to absurd results that the Legislature could not have intended.13 Additionally,

where, as here, we are analyzing whether or the extent to which the Legislature has waived sovereign

immunity, the Legislature has instructed us not to construe a statute to be such a waiver unless that

intent is “effected by clear and unambiguous language.”14 Especially in light of the latter limitation,

we must reject appellants’ construction of the APA as unsupported by the statute’s text.

As the statutory basis for the “absolute procedural right” to a public hearing

that appellants claim, they cite section 2001.029 of the APA. That provision, titled “Public

Comment,” states:

(a) Before adopting a rule, a state agency shall give all interested persons a
reasonable opportunity to submit data, views, or arguments, orally or in
writing.

(b) A state agency shall grant an opportunity for a public hearing before it adopts
a substantive rule if a public hearing is requested by:

10
See id.; Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006).
11
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011) (citing
Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)).
12
See id. (citing In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)).
13
Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010);
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); City of Rockwall v. Hughes,
246 S.W.3d 621, 625–26 (Tex. 2008) (citing Mega Child Care, 145 S.W.3d at 177)).
14
Tex. Gov’t Code § 311.034.

6
 (1) at least 25 persons;

(2) a governmental subdivision or agency; or

(3) an association having at least 25 members.

(c) A state agency shall consider fully all written and oral submissions about a
proposed rule.15

Appellants emphasize subsection (b) and insist that because more than 25 of them joined

in requesting a public hearing, the provision requires that the Commission “shall”—a term of

mandatory obligation16—grant them one.

As for how section 2001.038 of the APA authorizes them to seek judicial enforcement

of this claimed right to a public hearing, appellants emphasize that courts have employed

this remedy with some frequency to invalidate rules based on agency noncompliance with the

procedural requirements for APA notice-and-comment rulemaking,17 requirements that include

section 2001.029.18 Appellants similarly observe that section 2001.035 of the APA expressly

provides that a “rule is voidable” unless adopted in substantial compliance with the Act’s procedural

requirements for rulemaking.19 They add that these procedural requirements, including the public-

hearing requirement of section 2001.029, are aimed at ensuring that interested persons and the

15
Id. § 2001.029.
16
See id. § 311.016 (“shall” generally “imposes a duty”).
17
See, e.g., El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709,
714–15 (Tex. 2008) (holding that “rule” not properly promulgated under APA procedures is invalid);
Texas State Bd. of Pharmacy v. Witcher, 447 S.W.3d 520, 534–36 (Tex. App.—Austin 2014,
pet. filed) (same).
18
See generally Tex. Gov’t Code §§ 2001.0225–.034 (APA’s notice-and-comment
rulemaking procedures).
19
See id. § 2001.035.

7
public have notice of proposed rules and the opportunity to offer meaningful input regarding

them, and that the agency in turn “might exercise intelligently its responsibilities in arriving at the

contents of the rule as finally adopted, in stating reasons for and against adoption, and in formulating

the required contents of the adopting order, including a ‘reasoned justification’ for the rule.”20

Together, appellants reason, these statutory requirements and remedies embody “the strong objective

of obtaining as much relevant public comment as possible on a proposed rule,” coupled with a

legislative policy judgment that “[f]ailing to follow [such] procedure is . . . fatal to the rulemaking

process.”

While appellants are correct about the salutary overarching objectives of the APA’s

notice-and-comment rulemaking requirements, they cannot quite connect their observations and

reasoning to the actual statutory language that controls the district court’s subject-matter jurisdiction

here. Most critical is the text of section 2001.038, the waiver of sovereign immunity on which they

rely in their attempt to establish jurisdiction. Section 2001.038, again, authorizes “an action for

declaratory judgment” against an agency to determine “[t]he validity or applicability of a rule”

where “it is alleged that the rule or its threatened application interferes with or impairs, or threatens

to interfere with or impair, a legal right or privilege of the plaintiff.”21 Thus, “[f]rom the face of

[section 2001.038],” as we have previously observed, “a challenged agency action that constitutes

20
Unified Loans, Inc. v. Pettijohn, 955 S.W.2d 649, 650–51 (Tex. App.—Austin 1997,
no writ); see National Ass’n of Indep. Insurers v. Texas Dep’t of Ins., 925 S.W.2d 667, 670
(Tex. 1996) (noting that “purposes of [APA] section 2001.033 [reasoned justification and other
required contents of agency order adopting rule] [are] to provide meaningful public participation in
the rulemaking procedure, to allow opponents of the rule to formulate specific challenges, and to
ensure that the agency carefully considers and analyzes a rule before adopting it”), superseded on
other grounds by statute as noted in Lower Laguna Madre Found. v. Texas Nat. Res. Conservation
Comm’n, 4 S.W.3d 419, 421 n.8 (Tex. App.—Austin 1999, no pet.).
21
Tex. Gov’t Code § 2001.038(a).

8
a ‘rule’ is among the facts (more precisely, a mixed question of law and fact) that must exist in order

for a claimant to successfully invoke . . . a trial court’s subject-matter jurisdiction over the claim for

relief authorized by the statute.”22 The APA defines a “rule,” in turn, as:

(A) . . . a state agency statement of general applicability that:

(i) implements, interprets, or prescribes law or policy; or

(ii) describes the procedure or practice requirements of a state agency;

(B) includes the amendment or repeal of a prior rule; and

(C) does not include a statement regarding only the internal management or
organization of a state agency and not affecting private rights or procedures.23

Appellants’ claims at issue do not complain of any Commission “rule”—rather, they arise in the

admitted absence of a “rule,” and focus on the procedure the Commission employed prior to its

decision not to adopt a “rule.”24 Consequently, these claims are not within the waiver of sovereign

immunity provided by section 2001.038.

In maintaining otherwise, appellants advocate in essence that we should broadly

construe section 2001.038’s “rule” element so as to authorize suits challenging the “rulemaking

process” even where no “rule” has been adopted, those challenging “agency consideration of

rulemaking petitions,” or those challenging other agency action that does not precede or concern an

adopted “rule.” The Legislature has instructed us to do precisely the opposite—“a statute shall

22
Slay, 351 S.W.3d at 544–45 (citing Combs v. City of Webster, 311 S.W.3d 85, 100–01
(Tex. App.—Austin 2009, pet. denied)).
23
Tex. Gov’t Code § 2001.003(6); see Slay, 351 S.W.3d at 545 (recognizing that this is the
operative definition of “rule” when applying APA section 2001.038).
24
See also Slay, 351 S.W.3d at 548 (observing that a “rule” must necessarily have some
independent legal effect (citing Tex. Gov’t Code § 2001.003(6))).

9
not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and

unambiguous language”25—and section 2001.038 is “clear and unambiguous” in its restriction to,

not expansion beyond, “rule” challenges.26 Appellants further urge that if sovereign immunity is held

to bar their claims here, APA section 2001.029 would have granted a “right” without a “remedy,”

which they regard as “a situation . . . so inequitable that it could not have been intended” by the

Legislature. That sovereign immunity might arbitrarily deprive a litigant of judicial remedies for its

grievances against government or be perceived to operate inequitably is, like it or not, a characteristic

feature of this centuries-old doctrine,27 and we must presume that the Legislature was well aware of

such consequences when it limited section 2001.038’s remedy as it did.28 We are bound to give

effect to these statutory limitations and the Legislative policy judgments they reflect.29

Nor is this jurisdictional defect susceptible to being cured.30 Although appellants

have not framed their claims in these terms, the claims’ substance—predicated as they are on the

claimed existence of a mandatory statutory duty on the part of the Commission to grant them a public

25
Tex. Gov’t Code § 311.034 (emphasis added).
26
Slay, 351 S.W.3d at 544–45 (citing City of Webster, 311 S.W.3d at 100–01).
27
See, e.g., Bacon, 411 S.W.3d at 172 (“Simply described, sovereign immunity generally
shields our state government’s ‘improvident acts’—however improvident, harsh, unjust, or
infuriatingly boneheaded these acts may seem—against the litigation and judicial remedies that
would be available if the same acts were committed by private persons.” (citing Tooke v. City of
Mexia, 197 S.W.3d 325, 331–32 (Tex. 2006)).
28
See, e.g., Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990) (courts
presume that the Legislature was aware of the background law and acted with reference to it).
29
See, e.g., Bacon, 411 S.W.3d at 172–73 (emphasizing judicial deference to Legislature’s
policy judgments in determining whether or how to waive sovereign immunity).
30
See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“a pleader
must be given an opportunity to amend in response to a plea to the jurisdiction only if it is possible
to cure the pleading defect”).

10
hearing—could potentially implicate the ultra vires exception to sovereign immunity if repleaded

to name the commissioners, in their official capacities, as defendants rather than the Commission.31

But that avenue would be available only if, as appellants insist, section 2001.029 imposed a non-

discretionary duty upon the Commission to provide appellants the hearing they had requested.32

It does not.

As appellees emphasize, the public-hearing requirement under APA section 2001.029

comes into play only if and when an agency decides to promulgate certain types of rules. This is

readily apparent from the face of the requirement, found in subsection (b) of section 2001.029—“A

state agency shall grant an opportunity for a public hearing before it adopts a substantive rule if a

public hearing is requested . . . .”33 Similarly, the broader public-participation requirement that

appears in subsection (a) of section 2001.029—“a state agency shall give all interested persons a

reasonable opportunity to submit data, views, or arguments, orally or in writing”—is preceded by

the qualifying clause, “Before adopting a rule, . . . .”34 Both requirements are phrased as

31
See City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009); see also Sefzik,
355 S.W.3d at 623 (permitting repleading in ultra vires context to substitute official-capacity
defendants for agency).
32
See Heinrich, 284 S.W.3d at 372–73 (to invoke ultra vires exception, claimant “must
allege, and ultimately prove, that the officer acted without legal authority or failed to perform a
purely ministerial act”); see also Texas Dep’t of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691,
701–02 (Tex. App.—Austin 2011, no pet.) (to make that determination, we “construe the provisions
of the [statutes] that define the scope of [the governmental body’s] legal authority, apply them to the
facts [the claimant has presented], and ascertain whether those facts constitute acts beyond [the
agency’s] legal authority” (citing Heinrich, 284 S.W.3d at 372–73; Creedmoor-Maha Water Supply
Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 516 n.8 (Tex. App.—Austin 2010,
no pet.))).
33
Tex. Gov’t Code § 2001.029(b) (emphasis added).
34
Id. § 2001.029(a) (emphasis added).

11
prerequisites to an agency’s ultimate adoption of rules, not as an “absolute procedural right” to a

public hearing in connection with a petition requesting an agency to adopt rules.

On the other hand, another subsection of section 2001.029, (c), requires that “[a] state

agency shall consider fully all written and oral submissions about a proposed rule,”35 a proviso

that, if read in isolation, could conceivably lend some support to appellants’ arguments. However,

any such uncertainties quickly dissipate once section 2001.029 is placed in its proper context within

the APA’s rulemaking subchapter. The material provisions of that subchapter can be summarized

as follows:

• Section 2001.021 provides that an “interested person by petition to a state agency
may request the adoption of a rule.”36

• In the event a rulemaking petition is submitted to an agency, section 2001.021 also
requires that the agency “shall,” within sixty days, either (1) “deny the petition in
writing, stating its reasons for the denial”; or (2) “initiate a rulemaking proceeding
under this subchapter.”37

• No succeeding provision of the subchapter refers explicitly to an agency’s denial of
a rulemaking petition. However, several provisions impose additional requirements
in the event an agency decides to take further steps toward making or adopting a
rule. Per section 2001.023, an agency “shall give at least 30 days’ notice of its
intention to adopt a rule before it adopts the rule,” and shall file such notice with
the Secretary of State for publication in the Texas Register.38 Section 2001.024
specifies the required content of the notice, which must include, among other
requisites, “a brief explanation of the proposed rule,” the rule’s text, “a statement
of the statutory or other authority under which the rule is proposed to be adopted,”

35
Id. § 2001.029(c).
36
Id. § 2001.021(a).
37
Id. § 2001.021(c).
38
Id. § 2001.023(a), (b).

12
 “note[s]” concerning fiscal impact and “public benefits and costs,” and “a request
for comments on the proposed rule from any interested person.”39

• From here, section 2001.027 addresses one possible conclusion of this rulemaking
process: if an agency has not adopted, adopted as amended, or withdrawn the
“proposed rule” within six months after the date of publication of notice in the
Texas Register, the “proposed rule is withdrawn.”40

• However, in the event the agency decides to “finally adopt[] a rule,”
section 2001.033 requires that it must issue a written order that includes a “reasoned
justification for the rule as adopted”; a restatement of the “statutory provisions under
which the rule is adopted and of how the agency interprets” those provisions so as
to require or permit the rule; and “a certification that the rule, as adopted, has been
reviewed by legal counsel and found to be a valid exercise of the agency’s legal
authority.”41 The “reasoned justification” must consist of “a summary of comments
received from parties interested in the rule,” “a summary of the factual basis for the
rule as adopted which demonstrates a rational connection between the factual basis
for the rule and the rule as adopted,” and “the reasons why the agency disagrees with
party submissions and proposals.”42

It is within this framework that section 2001.029 requires that “[a] state agency shall

consider fully all written and oral submissions about a proposed rule”; that “[b]efore adopting a

rule,” an agency “shall give all interested persons a reasonable opportunity to submit data, views,

or arguments”; and that, in specified instances, an agency “shall grant an opportunity for a public

hearing before it adopts a substantive rule.”43 Against this statutory backdrop, it becomes clear

that the public-participation rights set forth in section 2001.029 operate with respect to rules

“proposed” by the agency pursuant to sections 2001.023 and .024, not rules merely requested through

39
Id. § 2001.024(a).
40
Id. § 2001.027.
41
Id. § 2001.033(a).
42
Id.
43
Id. § 2001.029.

13
rulemaking petitions contemplated by section 2001.021. And this context brings into further relief

the nature of the public-hearing right on which appellants rely and refutes appellants’ notion of an

“absolute procedural right” to a public hearing on a rulemaking petition whenever sufficient numbers

request one.44

In sum, section 2001.029 does not, as a matter of law, impose any duty on the

part of the Commission to afford appellants a public hearing. That conclusion would be fatal to

any attempt to replead their claims under the ultra vires rubric.45 Appellants have suggested no

alternative theories through which they might conceivably invoke the district court’s subject-matter

jurisdiction, nor do we perceive any.

44
Similarly unavailing is appellants’ reliance on the Commission’s rules to support their
contention that the submission of a petition for rulemaking invokes an “absolute procedural right”
to a public hearing. Compare 16 Tex. Admin. Code § 22.282 (Notice and Public Participation in
Rulemaking Procedures) (providing that an “opportunity for public hearing shall be granted” if the
commission initiates a rulemaking project by publishing notice of the proposed rule in accordance
with the APA), with 16 Tex. Admin. Code § 22.281(a) (Initiation of Rulemaking) (providing that
while “[a]ny interested person may petition the commission requesting the adoption of a new rule,”
the Commission “either shall deny the petition . . . or shall initiate rulemaking proceedings”)
(emphases added).
45
Appellees also urge that sovereign immunity would independently bar appellants’ claims
because the relief they seek would effectively “undo” the Commission’s final order denying
their rulemaking petition, as opposed to seeking the sort of “prospective” relief authorized within
the ultra vires exception. See Heinrich, 284 S.W.3d at 372–73, 375–76 (explaining that claim
under ultra vires exception to sovereign immunity must seek only “prospective” rather than
“retrospective” relief); Southwest Pharmacy Solutions, Inc. v. Texas Health & Human Servs.
Comm’n, No. 03-11-00802-CV, 2013 Tex. App. LEXIS 7815, at *28–29 (Tex. App.—Austin
June 27, 2013, no pet.) (recognizing that ultra vires claim that would “undo” previously-concluded
agency action independently implicates sovereign immunity by seeking retrospective relief (citing
Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 119–20 (Tex. App.—Austin 2007,
no pet.)). In light of our preceding holdings, we need not address whether, for this reason, sovereign
immunity would independently bar appellants’ claims.

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 CONCLUSION

We affirm the district court’s judgment granting the Commission’s plea to the

jurisdiction and dismissing appellants’ claims.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: November 25, 2015

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