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Appellate Courts Accept the Suggestions of a Baylor Law Professor

Aug. 30, 2011

When it comes to matters pertaining to Texas Administrative Law, appellate courts often look to Baylor Law Professor Ron Beal for his expertise. Recently, the Texas Supreme Court relied on Beal as an authoritative source and cited his treatise to that effect. In the majority opinion in a 5-4 decision of City of Dallas v. Stewart, Lexis 517, W.L. 2586882 (July 2, 2011), the Texas Supreme Court, specifically Chief Justice Wallace Jefferson, cited Baylor Law Professor Ron Beal's Texas Administrative Law Treatise. The treatise was cited a number of times regarding the power of a municipal agency to construe the meaning of the constitution and/or the finding of facts related to a constitutional claim. Beal wrote that agencies do not have the power to construe the constitution and that the courts can substitute judgment.

Then in August, the 3rd Court of Appeals in Austin relied on Beal's expertise. Earlier, the court affirmed the decisions of the district court and the Texas Commission on Environmental Quality (T.C.E.Q.) that denied the city of Waco the right to contest the major modification of a permit allowing a milk farm in Stephenville to radically increase the number of milk cows in its herd. As the court noted, the city of Waco had been involved in significant litigation over at least 10 years regarding the effect of numerous milk farms in Stephenville as to how their waste products contaminate the water in Lake Waco. Despite that fact, the court held the T.C.E.Q. had the legal authority to deny the right of the city of Waco to have a contested case hearing on the modification of the permit, City of Waco v. T.C.E.Q., Lexis 4644, W.L. 3329586 (Tex. App.-Austin 2011). The city of Waco filed a motion for rehearing asserting simply that the court had come to the wrong conclusion under the law governing the case.

Beal submitted an amicus brief asserting to the court that it and the district court had applied the incorrect standard of review in deciding whether the T.C.E.Q. had lawfully denied that hearing request. Beal did not argue the decision on the merits was incorrect. He simply asserted the court had a broader responsibility to review the decision of the agency more closely. Specifically, the district court had applied what is known as a "substantial evidence" standard of review but the circumstances required and the Texas Administrative Procedure Act demanded that the court apply a standard of review of "arbitrary, capricious and abuse of discretion." Beal noted that previous decisions of the court had incorrectly held to the contrary, but this was the court's opportunity to get it right and clarify the law. He also suggested that its substantive decision might change by applying the correct standard of review.

The 3rd Court of Appeals in Austin reconsidered the matter, issued an entirely new opinion, and wholly reversed itself on the merits by finding the T.C.E.Q. had arbitrarily denied the city of Waco the right to a contested case hearing. The court fully adopted the suggestions of Beal as to the correct standard of review and "clarified" that the prior decisions did not require a "substantial evidence" standard but one of "arbitrary and capricious."

As Texas Lawyer magazine noted in its March 3, 2008 issue, Beal also was credited with the Texas Supreme Court's modification of its final opinion in El Paso Hospital Dist. v. Texas Health and Human Services, 247 S.W.3d 709 (Tex. 2008). In the same year, the 3rd Court of Appeals in Austin in the case of Texas Board of Chiropractic Examiners v. Texas Medical Assoc., 270 S.W.3d 777 (Tex. App.-Austin 2008), made major revisions based on the suggestions of Beal in his amicus brief.

"Knowing they (the Texas Supreme Court justices) have my treatise and might view it as authoritative enough to go to it on their own was definitely a positive feeling," Beal said. "I have the goal of the Court getting the law correct so that cities as well as individual citizens are treated lawfully and fairly under the law. One decision of an appellate court can have tremendous effect on future decisions for the courts tend to follow prior decisions assuming they are correct and should control in the present case before them. If the appellate court gets it wrong, then the 'damage' can continue for years in many other decisions. If they get it right, of course that ensures correct and fair results in all future cases.

"It is a rewarding to see the Court apply the correct law and to see the effect of that decision in other cases. And I have to admit, if these decisions protect the quality of water in Waco, I will be a direct recipient of those decisions," he said.

As a case in point, Beal noted that since the City of Waco decision, the 3rd Court of Appeals in Austin has reversed a second decision of the T.C.E.Q denying the contestant the right to a hearing in another permit case related to milk farms."(see Bosque River Coalition v. T.C.E.Q., Lexis 6043, W.L. 2229586 (Tex. App.-Austin 2011)).

Considered an expert in Texas administrative law, Beal has authored numerous law review articles that have been cited as authoritative by the Texas judiciary, taught training courses for administrative law judges and lectured in advanced courses for practicing lawyers. In 1997, he completed a treatise, Texas Administrative Practice and Procedure, which is considered the "bible" of Texas administrative law.

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