ON MOTION FOR REHEARING
In its initial appellate briefing, the Board’s principal arguments were that (1) the Board’s order did not contain or adopt a “rule” at all, and (2) if it did, the rule fell within one of the narrow circumstances in which ad hoc rulemaking is permitted. The Board has now filed a motion for rehearing raising wholly new issues and arguments. Although we conclude that the motion for rehearing does not require that we alter the substance of our original opinion, we add this supplemental opinion to address some of the new arguments raised in the motion.
It is undisputed that, at all relevant times, there was no statute or regulation that mandated the imposition of an identical reciprocal sanction for a Texas licensee whose out-of-state pharmacist’s license had been suspended ,or revoked by another state. Rather, the Board’s formally adopted regulations provided a number of aggravating and mitigating factors to be considered in determining the appropriate disciplinary sanction in an individual disciplinary proceeding. See 22 Tex. Admin. Code § 281.62 (providing evaluative factors in cases involving non-criminal conduct). The disciplinary action taken by another jurisdiction was but one of those factors. Id. § 281.62(1)(I). The central issue in this case is whether the Board improperly engaged in ad hoc rulemaking (also referred to as adjudicative rulemak-ing) when it applied a general policy that requires, as a standard sanction, the imposition of a reciprocal sanction without regard to any other factor identified in the applicable regulation and without regard to whether the rationale underlying the policy is actually implicated by the affected pharmacist’s individual circumstances.
An ad hoc rule is a general statement of law or policy that is made in the context of a contested case and the impact of which *536will extend to persons beyond those who are parties to the proceeding at hand.
[T]he Texas Supreme Court and the Austin Court of Appeals have both recognized that an agency may formulate a rule for the first time within a contested case proceeding. Such act of rulemak-ing has been labeled ad hoc adjudication or ad hoc rulemaking or case by case rulemaking.
... [A]n ad hoc “rule” is not a mere finding of fact or interpretation of a statutory term but it is an agency formulating policy subject to its delegated rule making power that sets forth a standard that is binding on the parties before the agency.
2 Ronald L. Beal, Texas Administrative Practice and Procedure § 10.1 at 10-2 to 10-3 (Supp. 6/2009) (footnotes omitted).
While ad hoc rulemaking is an exercise of legislative power, the rules are developed by the “common law” method [i.e., within a contested case] that then imposes the rules by stare decisis and precedent. While the particular contested case order which adopted an ad hoc rule is only directly applicable to those to whom it has been applied, the agency will be required to apply it to future parties with substantially similar conditions.
1 Beal, supra § 2.4 at 2-58 (Supp. 6/2010).
The present case presents a quintessential example of ad hoc rulemaking. Pursuant to the APA’s notice-and-comment rulemaking procedures, the Board had formally adopted a rule setting forth 15 aggravating factors and 12 mitigating factors that could be considered in determining the appropriate sanction to be assessed against a pharmacist who had violated Board rules. See 22 Tex. Admin. Code § 281.62. Nonetheless, in this case the Board’s contested-case order stated that, as a matter of policy, one of the aggravating factors listed in Rule 281.62(1) would be dispositive in all cases in which that factor was present, regardless of the presence or absence of any of the other 26 enumerated factors. Id. at 281.62(1)(I). This statement was announced as a matter of general policy. This is the essence of an ad hoc rule. See 1 Beal, supra at § 2.4 (Supp. 6/2010); Ron Beal, Ad Hoc Rulemaking in Texas: The Scope of Judicial Review, 42 Baylor L.Rev. 459, 461-67 (1990); Ron Beal, Ad Hoc Rulemaking: Texas Style, 41 Baylor L.Rev. 101, 102-07 (1989); see also Ron Beal, The APA and Rulemaking: Lack of Uniformity within a Uniform System, 56 Baylor L.Rev. 1, 13-18 (2004).
The main thrust of the Board’s motion for rehearing is that the Board (and, by extension, any administrative agency) has virtually unrestricted discretion to engage in ad hoc rulemaking. In advancing this position, which was not previously made to this Court, the Board relies largely on two arguments, which were likewise not previously made to this Court. First, the Board asserts that certain statements in Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex.1999), in which the Texas Supreme Court recognized severe limitations on an agency’s authority to engage in ad hoc rulemaking, are mere “dictum” that can safely be ignored. Second, the Board asserts that, in any event, the holding in Rodriguez was undercut if not overturned — sub silentio — by the supreme court’s later opinion in Railroad Commission of Tex. v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex.2003). We disagree on both counts.
Rodriguez v. Service Lloyds Ins. Co.
The supreme court in Rodriguez emphasized the importance of requiring agencies to adhere to the notice-and-eomment rule-making procedures mandated by the APA: *537“A presumption favors adopting rules of general applicability through the formal [notice-and-comment] rulemaking procedures as opposed to administrative adjudication. Allowing an agency to create broad amendments to its rules through administrative adjudication rather than through its rulemaking authority undercuts the Administrative Procedure Act (APA).” 997 S.W.2d at 255. The court held that agencies could utilize ad hoc rulemaking only in narrow circumstances:
In exceptional cases, an agency may choose to formulate and enforce a general requirement through a decision in a particular case. An agency may do this when using the [notice-and-comment] rulemaking procedure would frustrate the effective accomplishment of the agency’s functions. Adjudicative rule-making may be appropriate, for example, when the agency is construing a new rule or when a dispute deals with a problem that requires ad hoc resolution because the issue cannot be captured within the bounds of a general rule. The agency’s discretionary- choice to rely on adjudication is subject to judicial review and revision.
Id. (citations omitted) (emphases added). In recognizing stringent limitations on an agency’s power to use ad hoc rulemaking, the Rodriguez court did not make new law and did not go out on a jurisprudential limb.9 Rather, the court upheld the plain language of the APA as prescribing the method and manner by which a state agency can adopt generally applicable statements of law, policy, procedure, or practice. See Tex. Gov’t Code §§ 2001.0225-.034 (governing agency rulemaking); cf. generally Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 173, 199 (Tex.2004) (holding that APA’s plain language controls in absence of express conflict with agency’s enabling statute or unless clear evidence exists of contrary legislative intent). An improperly adopted rule is voidable. Tex. Gov’t Code § 2001.035(a).
In its motion for rehearing in the present case, the Board attempts to dismiss these holdings in Rodriguez as dictum. They are not. In Rodriguez, the Texas Workers’ Compensation Commission had formally adopted a rule requiring that an initial impairment rating be disputed by the claimant within 90 days after the rating was assigned. 997 S.W.2d at 252. Over the years, however, the Commission had purported to create ad hoc exceptions to the 90-day deadline. Id. at 254-55. The claimant in Rodriguez sought to take advantage of those exceptions. The su*538preme court rejected the agency’s ad hoc exceptions as improper, holding that the formally adopted rule would control:
Here, we see no reason to overturn the presumption favoring the fairness and public participation that accompany formal rulemaking under the APA. The 90-day Rule certainly is not new. In addition, the Commission could have easily formulated exceptions in the language of a general rule. In fact, the Commission appeals panels formulated their exceptions in the language of a general rule....
Id. at 255 (citations omitted).
Thus, the Rodriguez opinion not only announced the standard by which courts should determine the validity of ad hoc rules, it specifically applied that standard in evaluating — and rejecting — the Commission’s ad hoc exceptions. Far from being peripheral to the court’s holding, the Rodriguez opinion’s references to the exceptional circumstances needed to make ad hoc rulemaking permissible (“construing a new rule” or addressing an “issue [that] cannot be captured within the bounds of a general rule”) were central to the court’s decision. Accordingly, the relevant statements in Rodriguez were not dictum. See Bryan A. Garner, A Dictionary of Modem Legal Usage 274 (2nd ed.1995) (quoting Judge Posner’s definition of “dictum” as “a statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding .... ” contained in Samoff v. American Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir.1986)). We therefore continue to be bound by the holdings in Rodriguez, which can only be read as affirming that ad hoc rulemaking is a narrow exception to the APA’s mandate that agency rules be adopted through notice-and-comment rulemaking procedures.
Railroad Commission of Texas v. WBD Oil & Gas Co.
The second major argument raised in the Board’s motion for rehearing is that the supreme court’s holding in Rodriguez described above was undercut by the court’s later opinion in Railroad Commission of Tex. v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex.2003). Even a casual reading of WBD, however, shows that it is inapplicable to the present case. The sole issue in WBD was whether field rules adopted by the Railroad Commission after a trial-type proceeding (which the supreme court held to be a contested case) could be challenged under section 2001.038 of the APA or instead had to be challenged through contested-case procedures. See id. at 74. Section 2001.038 provides that “[t]he validity or applicability of a rule ... may be determined in an action for declaratory judgment if 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.” Tex. Gov’t Code § 2001.038(a). The court held that the field rules at issue could not be challenged under section 2001.038 but had to be challenged through the procedure for challenging a contested-case order:
Thus, as we read the APA, judicial review of orders, adopting field rules should be the same as in other contested case decisions....
Accordingly, we conclude that Commission field rules adopted in a contested case like those involved here cannot be challenged in a declaratory judgment action under section 2001.038 of the APA.
WBD, 104 S.W.3d at 79. Nowhere in the supreme court’s WBD opinion is ad hoc rulemaking mentioned. Nowhere in the opinion is Rodriguez cited, much less dis*539cussed or overruled. In short, ad hoc rulemaking was never an issue in WBD.
The procedural posture of the present case, on the other hand, is radically different. Here, Witcher did use contested-case procedures to challenge the Board’s ad hoc rule. She timely filed a motion for rehearing with the Board, complaining of the ad hoc reciprocal-sanction rule. When that was overruled, she timely filed a suit for judicial review, again complaining of the ad hoc. rule. See Tex. Gov’t Code §§ 2001.171, .174-76. The trial court agreed, ruling that “the Board’s use of an unwritten policy to impose an enforced suspension of Ms. Witcher’s license is 1) arbitrary and capricious, 2) improper ad-hoc rulemaking, and 8) a violation of the APA and Pharmacy Act’s rulemaking requirements.” Thus, as stated above, the dispositive issues in this appeal are (1) whether the Board’s contested-case order applied an ad hoc “rule,” and (2) if it did, whether the circumstances fall within one of the narrow exceptions in which ad hoc rulemaking is permitted. WBD does not control these questions.
Nonetheless, the Board appears to contend in its motion for rehearing that WBD stands for the proposition that (1) agencies generally have unqualified discretion to adopt rules either by notice-and-comment rulemaking or by ad hoc adjudication and (2) an agency statement that “implements, interprets, or prescribes law or policy” adopted ad hoc in an adjudicative proceeding can never be a statement of general applicability as required to meet the APA’s definition of a “rule.” See Tex. Gov’t Code § 2001.003(6) (defining “rule” for purposes of APA). Neither of these broad propositions is supported by the applicable statutory schemes or the relevant jurisprudential environment.
We will not revisit the second proposition because our original opinion adequately explains our conclusion that the reciprocal-sanctions policy meets the APA’s definition of a rule and we discern nothing in WBD that alters that conclusion.10 Our discussion of the first proposi*540tion proceeds from our conclusion that the reciprocal-sanctions policy is a rule that was not promulgated under the APA’s mandatory rulemaking procedures before being applied to dictate the sanction imposed in Witcher’s case.
In a nutshell, (1) the APA contains a statutory mandate governing agency adoption of rules of general applicability; (2) the Board’s enabling statute, the TPA, contains no language that limits the APA’s reach or expands the Board’s rulemaking authority; and (3) to the extent the Board arguably has discretion to use its limited statutory adjudicatory authority to adopt ad hoc rules of general applicability, the facts of this case do not support the exercise (through any recognized or proffered exception to APA rulemaking) of any such discretion in contravention of the APA’s plain language and the presumption favoring APA rulemaking.
As a general proposition, “[u]nless mandated by statute, the choice by an agency to proceed by general rule or by ad hoc adjudication is one that lies primarily in the informed discretion of the agency.” State Bd. of Ins. v. Deffebach, 631 S.W.2d 794, 799 (Tex.App.-Austin 1982, writ ref d n.r.e.) (citing SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947)). The APA is a statute that mandates the procedures by which agencies are permitted to adopt rules, and in Mega Child Care, the Texas Supreme Court affirmed the unremarkable proposition that the APA must be applied according to its plain language absent an express conflict with an agency’s enabling statute. 145 S.W.3d at 199 (“[I]n the absence of express statutory language [in the agency’s enabling statute] prohibiting judicial review, a legislative intent to prohibit judicial review [otherwise afforded under the APA] must be established by specific legislative history or other reliable evidence of intent.”). There is nothing in the TPA that support’s the conclusion that the TPA’s general grant of rulemaking authority or limited grant of adjudicatory authority categorically trumps the APA’s mandate that agencies are to adopt rules of general applicability via notice-and-comment rule-making.
With regard to rulemaking, the TPA states:
(a) The board shall adopt rules consistent with this subtitle for the administration and enforcement of this subtitle.
(b) If the board determines it necessary to protect the health and welfare of the citizens of this state, the board may make a rule concerning the operation of a licensed pharmacy located in this state applicable to a pharmacy licensed by the board that is located in another state.
(c) The board shall adopt rules regarding records to be maintained by a pharmacist performing a specific act under a written protocol.
(d) The board by rule shall specify minimum standards for professional responsibility in the conduct of a pharmacy-
Tex. Occ.Code § 554.051. Thus, the TPA authorizes the Board to adopt rules but is silent with regard to the method or methods by which the Board may do so. The APA, on the other hand, is not silent about how agencies are required to adopt, rales. See Tex. Gov’t Code §§ 2001.0225-.036. Nevertheless, relying on the presumption that agencies have some discretion to select the method for adopting rales in the absence of a statutory prohibition, the Board now argues that the absence of an express prohibition against adjudicative rulemaking is all that is required to supersede the APA’s plain directive. Such a position, however, is contrary to bedrock principles of statutory construction, which eschew reliance on extrinsic construction *541aids that alter a statute’s plain meaning. See Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.-Austin 2010, no pet.) (courts may resort to rules of construction or extrinsic aids only when statutory text is ambiguous); cf. generally Mega Child Care, 145 S.W.3d at 173 (holding that plain language of APA provides independent right to judicial review when agency’s enabling statute neither specifically authorizes nor specifically prohibits judicial review).
In the present case, the TPA does not contain any language that limits the APA’s mandate that agencies use notice-and-comment procedures to adopt rules, including making them available for public inspection and comment. See Tex. Gov’t Code §§ 2001.004-.005, .0225-.034. Nor is there any other evidence of clear legislative intent to override or limit the APA’s scope or to expand the Board’s rulemaking authority.11 Applying the APA as written, that statute provides the procedures required for the Board to adopt rules or regulations of general applicability. Although narrow exceptions have been recognized where necessary to allow the agency to accomplish its functions, the Board has cited none that would apply under the facts of this case, as we previously discussed and further explain here.
To the extent the Board has “discretion” to adopt, repeal, or modify rules in an adjudicative proceeding by virtue of its statutory authority to adjudicate disciplinary actions, the case law cannot be read to support the unfettered discretion alluded to in the Board’s motion for re*542hearing. Rather, the principle of “informed discretion” has long been tempered by “[a] presumption [that] favors adopting rules of general applicability through the [APA’s] formal rulemaking procedures as opposed to administrative adjudication.” Rodriguez, 997 S.W.2d at 255; see Railroad Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 688-689 (Tex.1992); cf. City of El Paso v. Public Util. Comm’n of Tex., 883 S.W.2d 179, 189 n. 21 (Tex.1994) (observing that agency “discretion to proceed on a ‘case-by-case basis is not absolute” and that agency is “bound to follow the [APA’s] formal rulemaking procedures” when circumstances supporting ad hoc adjudication are not present). Thus, when an agency seeks to adopt rules of general applicability, there is a “presumption favoring the fairness and public participation that accompany formal rule-making under the APA” because “[allowing an agency to [amend] its rules through administrative adjudication ... undercuts the APA.”12 Rodriguez, 997 S.W.2d at 255.
In “exceptional cases,” an agency “may choose to formulate and enforce a general requirement through a decision in a particular case,” but that may be done only when “using the rulemaking procedure would frustrate the effective accomplishment of the agency’s functions.” Id. (citing Lone Star Gas Co., 844 S.W.2d at 689, and Amarillo Indep. Sch. Dist. v. Meno, 854 S.W.2d 950, 958 (Tex.App.-Austin 1993, writ denied)). Courts have recognized that ad hoc rulemaking “may be” appropriate, for example, when the agency is presented with a novel issue; when a dispute deals with a problem that is too technical, complex, or varied to be captured within the bounds of a general rule; or to fill in the interstices of a new statute or rule. See, e.g., Rodriguez, 997 S.W.2d at 255; City of El Paso, 883 S.W.2d at 188-89 & n. 21 (citing Chenery, 332 U.S. at 202-03, 67 S.Ct. 1760, and Southwestern Bell Tel. Co. v. Public Util. Comm’n of Tex., 745 S.W.2d 918, 926-27 (Tex.App.Austin 1988, writ denied)); see also Beal, supra, 56 Baylor L.Rev. at 16 (“[N]otice and comment rulemaking procedures must be utilized unless a bona fide exception exists.”). As stated in our original opinion, none of these circumstances applies to the reciprocal-sanctions policy at issue here. Even on rehearing, the Board has offered no exceptional circumstances to support adopting the reciprocal-sanctions policy on an ad hoc basis.
The Board asserts that the reciprocal-sanctions policy was not newly adopted in Witcher’s case, or even in Nealy, but instead was adopted in contested cases 30 years ago (or over the course of the past 30 years) to address the issue at a time when it was “novel.” That proposition, however, is not supported by the plethora of Board decisions submitted for the first time in its motion for rehearing, nor by the history of the statutes governing pharmacist licensing. Until Nealy and the order in the present case, there is no indication that the results were governed by a prospective policy of general applicability rather than the significantly more egregious and entirely distinguishable factual and procedural circumstances presented in those cases. Moreover, this is not an issue that was unfamiliar to the legislature or the Board when the TPA was enacted. Indeed, suspension, revocation, cancellation, or restriction of an out-of-state li*543cense has been a basis for disciplining a Texas licensee since the TPA’s inception.13 The reciprocal-sanctions policy simply does not address any novelty in the regulation of pharmacists that had not already been contemplated by the legislature in enacting the TPA.
Even if the issue had been “novel” at an earlier time, there are several other reasons why the Board would have abused its discretion in continuing to apply an ad hoc rule, including that any novelty or exigencies that might have previously warranted a deviation from the APA’s procedures or the need for continued reliance on an ad hoc rule should have been temporary and lasted only so long as reasonably necessary to allow the Board an opportunity to comply with the APA in adopting the rule.14 See City of El Paso, 883 S.W.2d at 188-89 & n. 21; cf. Tex. Gov’t Code § 2001.034 (agency may enact “emergency rule without prior notice or hearing” upon finding “imminent peril to public health, safety, or welfare” but such rule may be used only temporarily pending adoption following APA’s notice-and-comment rule-making procedures). The availability of the APA rulemaking process and the amenability of the subject matter to promulgation as a formal rule support the presumption favoring the fairness and public participation that accompany notice- and-comment rulemaking under the APA.15
*544In sum, the Board’s motion for rehearing does not persuade us that WBD requires a different outcome in this case. Nor does it persuade us that the Board appropriately adopted the reciprocal-sanctions policy as a rule of general applicability without complying with the APA.
The Board’s Other Arguments in its Motion for Rehearing
, The Board also complains that we are required to uphold the Board’s decision if there is a rational basis underlying the reciprocal-sanction policy and if there is some evidence that it is applicable under the facts of Witcher’s case. However, an agency’s legislative rule is binding on all concerned, including the judicial department, only if the rule is (1) reasonable, (2) within the power delegated to the agency, and (3) the product of proper procedure. General Elec. Credit Corp. v. Smail, 584 S.W.2d 690, 694 (Tex.1979) (citing and quoting K. Davis, Administrative Law Treatise § 5.03 (1958 ed. and Supps.)); Sharp v. Cox Tex. Publ’ns, Inc., 943 S.W.2d 206, 209 (Tex.App.-Austin 1997, no writ). “When an agency promulgates a rule without complying with proper rule-making procedures, the rule is invalid.” El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d 709, 715 (Tex.2008). Having concluded that the rule here is not the product of proper procedure, it lacks the force of law without regard to its reasonableness vel non.
The Board also complains that the trial court erred in limiting the scope of remand to a determination of an appropriate sanction based on the established record and the affirmed fact findings and conclusions of law, which were not challenged below or on appeal. The Board contends that the only remedy for applying an improperly promulgated rule is remand for entirely new proceedings affording Witcher notice of the rules of decision to be applied, including the reciprocal-sanctions policy. Cf. Texas State Bd. of Pharmacy v. Seely, 764 S.W.2d 806, 814 (Tex.App.-Austin 1988, writ denied) (“Assuming], without deciding, that the Board [of Pharmacy] possessed authority to promulgate official policy as to what that norm or standard [of conduct] should be; that it promulgated a valid policy consistent with the statutory provisions committed to the Board’s administration; and that it permissibly promulgated and applied that policy retroactively in the course *545of adjudicating Seely’s case, rather than formulating and promulgating that policy under the rulemaking provisions of [the predecessor to the APA] to be applied prospectively” — all such assumptions being necessary to valid, license-revocation order — due process required, at minimum, that Board give pharmacist prior notice of legal criteria Board would apply to his conduct); Madden v. Texas Bd. of Chiropractic Exam’rs, 663 S.W.2d 622, 626-27 (Tex.App.-Austin 1983, writ refd n.r.e.) (chiropractic board “arguably” had discretion to announce and apply new definition in ad hoc adjudicative proceeding rather than by promulgation of general rule through exercise of its rulemaking power, but, at minimum, due process required prior notice of legal criteria and hearing relative to issues that would actually control result). In the present appeal, the Board did not challenge the trial court’s order with respect to the scope of remand. Accordingly, if there is any error in that regard, it has been waived. See Secure Comm, Inc. v. Anderson, 31 S.W.3d 428, 430-31 (Tex.App.-Austin 2000, no pet.) (holding that appellant waives right to complain of ruling to which no error was assigned).
Finally, the Board summarily asserts that sovereign immunity bars Witcher’s claims against the individual appellants who were sued in their official capacity.16 Subject to the limited “ultra vires” exception, sovereign immunity protects state officers sued in their official capacities to the same extent that it protects their employers. See, e.g., University of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 776 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.) (“[T]o the extent [the nurse] was acting in her official capacity, she enjoys the same governmental immunity as UTMB on [the plaintiffs] claims under the Nurse Reporting Act.”). The Texas Supreme Court has explained the derivative nature of a state official’s immunity as follows:
When a state official files a plea to the jurisdiction, the official is invoking the sovereign immunity from suit held by the government itself. It is fundamental that a suit against a state official is merely “another way of pleading an action against the entity of which [the official] is an agent.” A suit against a state official in his official capacity “is not a suit against the official personally, for the real party in interest is the entity.” Such a suit actually seeks to impose liability against the governmental unit rather than on the individual specifically named and “is, in all respects other than name, .... a suit against the entity.”
Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex.2007) (internal citations omitted) (emphasis added); see also, e.g., De Mino v. Sheridan, 176 S.W.3d 359, 365 (Tex.App.-Houston [1st Dist.] 2004, no pet.). (“It is a well-established and generally accepted principle of law that suit against a government employee in his official capacity is, in all respects, a suit against the governmental unit.”). It is undisputed in this case that the Board’s immunity from suit is waived by section *5462001.171 of the APA.17 Because the Board is not immune from suit, neither are the individual appellants who were sued in their official capacities.
We overrule the Board’s motion for rehearing.
CONCLUSION
For the reasons stated, we affirm the trial court’s judgment.
Dissenting Opinion by Justice Goodwin
. See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (observing that agencies are less justified in resorting to ad hoc procedures in lieu of promulgating general rules, but recognizing that, to avoid "stultifying] the administrative process,” ad hoc decision making would be warranted in appropriate circumstances including reasonably unforseeable situations, inexperience with particular problems, or inability to capture problem within bounds of general rule); Railroad Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.1992) (noting that agency has “informed discretion” in making decision to proceed via rulemaking or ad hoc adjudication but stating that rulemaking should be utilized except " ‘[when] there is a danger that its use would frustrate the effective accomplishment of the agency’s function”); Amarillo Indep. Sch. Dist. v. Meno, 854 S.W.2d 950, 958 (Tex.App.-Austin 1993, writ denied) ("exceptional cases” may arise in which "agency may justifiably choose, in its discretion to formulate and enforce a general requirement [ad hoc]” rather than by formal rulemaking, including construing new rule or statute or matter incapable of articulation as general rule); 1 Frank E. Cooper, State Administrative Law 177-85 (1965) (observing that legislature delegates rulemaking power to agency in expectation that it will ordinarily employ that power to formulate and adopt requirements of general applicability).
. We reiterate our initial observations that the Board's disciplinary order included affirmative statements of general applicability that were prospective in operation and based on general policy considerations rather than Witcher’s individual circumstances. Cf. Combs v. Entertainment Publ'ns Inc., 292 S.W.3d 712, 724 & n. 8 (Tex.App.-Austin 2009, no pet.) (agency not precluded from making individual determination, on case-by-case basis, but pronouncement of policy applicable to all similarly situated businesses without regard to individual circumstances constituted "rule” under APA). The evidence established that the Board considers a reciprocal sanction to be the "standard sanction.” Moreover, and perhaps most importantly, the indefinite-suspension sanction the Board imposed against Witcher’s Texas license is so at odds with the Board’s fact findings as to be inexplicable without the application of an outcome-determinative factor not found in the enabling statute or governing regulations. Without resort to such a rule, the sanction imposed is not supported by basic underlying fact findings and the Board's own precedent. Further, in addition to espousing a general policy to justify the selection of a standard sanction in reciprocal disciplinary scenarios, the Board’s decision only sets forth justifications or explanations that contradict its fact findings. The Board’s motion for rehearing presents no reason for us to reconsider our prior holding that the reciprocal-sanctions policy meets the APA’s definition of a “rule.”
We do not read WBD as holding that contested-case proceedings can never give rise to a statement that meets the APA’s general applicability standard. In that case, the supreme court concluded that the field rules emanating from a contested-case proceeding were not statements of general applicability because they affected only individual interests in a specific field and had no impact on other oil and gas fields in the state. See WBD, 104 S.W.3d at 79. That is not the situation presented here; the policy the Board articulated and applied in this case has statewide ramifications that extend far beyond the specific party to the contested-case proceeding.
. To the contrary, when the TPA was enacted in 1981, the statute expressly required the Board to adopt rules in accordance with the APA. See Act of May 28, 1981, 67th Leg., R.S., ch. 255, § 16(a), 1981 Tex. Gen. Laws 638, 645 ("The rules shall be adopted, amended, or repealed in accordance with the Administrative Procedure Act.”). During a non-substantive codification in 1999, the foregoing language referring to compliance with the APA was removed. See Act of May 28, 1999, 76th Leg., R.S., ch. 388, § 1, 1999 Tex. Gen. Laws 1431, 1949 (current version at Tex. Occ. Code § 554.051). But according to a “Re-visor's Note” to the revised statute, the sentence requiring adoption of rules under the APA was deleted as "unnecessary” because the APA, by its express terms, applies to all agencies: "The revised law omits as unnecessary the portion of [the prior statute] that requires rules to be adopted, amended, or repealed in accordance with the Administrative Procedure Act. Chapter 2001, Government Code, requires each agency to follow that law in adopting rules.” Id. (Revisor's Note). Notwithstanding this explanation, the Board asserts that the deletion of the reference to the APA means that, under the TPA, the Board has complete discretion to adopt rules in individual adjudications without regard to the APA. We disagree.
Although a revisor’s note cannot vary the plain language of a statute, the ability to proceed via "adjudicative rulemaking” is not included anywhere in the TPA. Therefore, the discretion to forgo compliance with APA rule-making procedures could exist only by resorting to an extra-textual presumption that would create a conflict with the APA's plain language. Harmonizing the TPA and APA to avoid such a conflict — and consistent with the legislature's intent in adopting both statutes— the APA must be construed to govern the Board’s rulemaking activities in the absence of an express provision in the TPA to the contrary or clear evidence of legislative intent to restrict the APA’s scope and applicability vis-á-vis the Board. Cf. Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 199 (Tex.2004) ("In the absence of express statutory language prohibiting judicial review, a legislative intent to prohibit judicial review [despite independent right provided by the APA] must be established by specific legislative history or other reliable evidence of intent.”); cf. also Texas Indus. Energy Consumers v. CenterPoint Energy Hous. Elec. LLC, 324 S.W.3d 95, 107 (Tex.2010) (resort to "specific-controls-over-general maxim” is unnecessary because maxim only applies if overlapping statutes cannot be reconciled and court was able to construe two provisions to harmonize rather than conflict).
. Although the Board attempts to distinguish Rodriguez on the basis that its holding is limited to amendments of rules made on an ad hoc basis, it is axiomatic that amending a rule is substantively, legally, and effectively indistinguishable from adopting a new rule or repealing an old one.
. See generally Acts 1973, 63d Leg., R.S., ch. 286, § 1, 1973 Tex. Gen. Laws 677, 678. (authorizing Board to issue Texas pharmacy ■ license by reciprocity on applicant's satisfaction of certain conditions) (repealed); Act of May 28, 1981, 67th Leg., R.S., ch. 255, §§ 22(a)(5), 26(a)(15), 1981 Tex. Gen. Laws 638, 652, 54 (current versions at Tex. Occ. Code §§ 558.101, 565.001(a)(16), 565.051) (prohibiting Board from issuing Texas pharmacy license by reciprocity if applicant had license granted by another state "suspended, revoked, canceled or otherwise restricted for any reason" and authorizing a range of disciplinary actions against Texas licensee or applicant whose "license to practice pharmacy issued by another state [was] canceled, revoked, or suspended for conduct substantially equivalent" to conduct that would subject pharmacist to discipline under TPA); Act of May 28, 1987, 70th Leg., R.S. ch. 262, §§ 3, 5, 1987 Tex. Gen. Laws 1584, 1585 (current versions at Tex. Occ.Code § 558.05 l(a)(F), 559.005(a)) (amending TPA to prohibit initial licensing by examination if pharmacist had license issued by another state "suspended, revoked, canceled, surrendered, or otherwise restricted for any reason” and prohibiting Texas licensee from obtaining new license upon same circumstances if Texas license lapsed without renewal for two or more years).
. Over the years, the Board has promulgated rules governing disciplinary, sanctions on several occasions but failed to formally adopt the reciprocal-sanctions rule until June 2012, after its decision in Witcher’s case. See 22 Tex. Admin. Code § 281.67 (Texas State Bd. of Pharmacy, Sanctions for Out-of-State Disciplinary Actions). The Board's regulatory history reveals that, in March 2000, it promulgated a rule expressly setting forth aggravating and mitigating factors as guidelines for determining the appropriate sanction in disciplinary actions under section 565.001 of the TPA, but the Board apparently was not moved at that time to include its "long-standing” reciprocal-sanctions policy in the new rule. See 25 Tex. Reg. 2574 (Mar. 24, 2000) (former 22 Tex. Admin. Code § 281.57). Nor was it moved to do so when the rule was amended in 2005 and later repealed and replaced in 2006, both of which occurred after the Board’s decision in In re Nealy, Bd. Order # N-03-005 (May 10, 2005). See 30 Tex. Reg. 7874 (Nov. 25, 2005) (former 22 Tex. Admin. Code § 281.57); 22 Tex. Admin Code § 281.62 (current version). Instead, "disciplinary actions taken by any regulatory agency of the federal government or any state” was included in the sanctions guidelines as one factor among many that could be considered.
.The inadvisability of allowing the Board to freely adopt, amend, or repeal its rules in disciplinary proceedings is further demonstrated by the TPA's confidentiality provisions, which preclude the Board from publicly disclosing the contents of an order disciplining an impaired pharmacist. See Tex. Occ.Code §§ 564.002 ("All records and *544proceedings of the board, an authorized agent of the board, or a pharmaceutical organization committee relating to the administration of this chapter (governing Texas's program to aid impaired pharmacists and pharmacy students) are confidential and are not considered public information....”), .003 ("The board may disclose that the license of a pharmacist who is the subject of [a confidential] order ... is suspended, revoked, canceled, restricted, or retired ... [but] may not disclose the nature of the impairment or other information that resulted in the board's action.”). Because the Board’s orders are not uniformly made available for public inspection, using the disciplinary adjudicative process to announce new, amended, or repealed rules of general applicability would hinder the goals of openness and public participation reflected in the APA's provisions. See, e.g., Tex. Gov’t Code § 2001.004 (requiring agencies to make available for public inspection "all rules and other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions’’); see also Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 255-56 (Tex. 1999) ("[informally amending this rule through a contested case hearing or an appeals panel decision results in the 'issuance of private opinion that will never be known by anyone except those few persons who take the time to research the files of an agency.’ ” (quoting Ron Beal, Ad Hoc Rulemaking: Texas Style, 41 Baylor L.Rev. 101, 120 (1989))).
. Although courts occasionally use the terms "sovereign immunity” and "governmental immunity” interchangeably, they are distinct concepts. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). The Board generally asserts that its board members and executive director enjoy "immunity” from suit in their official capacities. We construe this as a claim of "sovereign immunity,” which refers to the state’s immunity from suit and liability and extends not only to the state but also to various divisions of state government, including agencies, boards, hospitals, and universities. Id.
. See Tex. Gov't Code § 2001.171 (authorizing an aggrieved person to file suit for judicial review of agency’s final decision in contested case); Mega Child Care, 145 S.W.3d at 198 (recognizing APA’s limited waiver of sovereign immunity for suits for judicial review).