      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00474-CV



       Susan Combs, Comptroller of Public Accounts of the State of Texas, Appellant

                                                   v.

                           Entertainment Publications, Inc., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
      NO. D-1-GN-08-002240, HONORABLE GUS J. STRAUSS JR., JUDGE PRESIDING



                              CONCURRING OPINION


               I concur in the judgment and reasoning of the majority opinion, with the exception

of the discussion of the four-part test for defining an “interpretive rule,” found in footnote six. In

light of our determination that the Comptroller’s statements in the March and April 2008 letters

constitute a rule under section 2001.003(6) of the APA, we need not address the issue of whether

they might also be considered interpretive rules under the four-part test suggested by Professor Beal,

or the impact, if any, of an “interpretive rule” designation under the test. Because this test has never

been adopted by this Court or the Texas Supreme Court and is not necessary for disposition of the

appeal, I decline to join footnote six of the majority opinion.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Filed: June 12, 2009
