      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00151-CV



                                  Verizon North, Inc., Appellant

                                                   v.

  Susan Combs, Comptroller of Public Accounts of the State of Texas; and Greg Abbott,
                 Attorney General of the State of Texas, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
        NO. D-1-GN-06-001295, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                               CONCURRING OPINION


                 Because Verizon contends only that the computer software program that it purchased

does not fall within the Comptroller’s regulatory definition of “computer program”1 and not that such

program falls outside the statutory definition of that term,2 I would affirm the judgment of the district

court. Although section 151.021 of the tax code allows the Comptroller to adopt rules that clarify

and implement the legislation, such rules must be consistent with the plain language of the statute.

See generally Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450, 474 n.24 (Tex. 1995)

(promulgated rules must be consistent with state constitution and statutes); Gerst v. Oak Cliff Sav.

& Loan Ass’n, 432 S.W.2d 702, 706 (Tex. 1968) (when exercising authority delegated by legislature,




        1
            See 34 Tex. Admin. Code § 3.308(b)(1) (2009) (defining “computer program”).
        2
            See Tex. Tax Code Ann. § 151.0031 (West 2008) (defining “computer program”).
agency must adopt rules consistent with state constitution and statutes). Accordingly, I decline to

adopt the majority’s analysis, and I concur in the judgment only.



                                             __________________________________________

                                             Jan P. Patterson, Justice



Before Justices Patterson, Pemberton and Waldrop

Filed: May 22, 2009




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