      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00178-CV



                                   Zimmer US, 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, 345TH JUDICIAL DISTRICT
     NO. D-1-GN-09-002096, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                               CONCURRING OPINION


               I concur in the majority’s judgment. I agree that the district court’s judgment must

be reversed because it is predicated upon an administrative construction of rule 3.284 that is

inconsistent with the rule’s text. See 34 Tex. Admin. Code § 3.284 (2011) (Tex. Comptroller of Pub.

Accounts, Drugs Medicines, Medical Equipment, and Devices (Tax Code § 151.313)); Texas Indus.

Energy Consumers v. Center Point Energy Houston Elec., LLC, 324 S.W.3d 95, 97-100 (Tex. 2010)

(stating that “if an agency ‘does not follow the clear, unambiguous language of its own regulation,

we reverse its action as arbitrary and capricious’” (quoting Rodriguez v. Service Lloyds Ins. Co.,

997 S.W.2d 248, 255 (Tex. 1999))). However, I do not join in the majority’s sua sponte analysis of

rule 3.284’s validity, including its holding that the underlying statute is ambiguous.
                                           __________________________________________

                                           Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Filed: February 9, 2012




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