
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


C O N C U R R I N G   O P I N I O N


		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,
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
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").
