      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00211-CV



                                     Teladoc, Inc., Appellant

                                                  v.

                        Texas Medical Board and Nancy Leshikar,
    in her Official Capacity as General Counsel of the Texas Medical Board, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
    NO. D-1-GN-11-002115, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                                           OPINION


                We again confront the recurrent question of whether an “informal” written agency

pronouncement regarding law or policy constitutes a “rule” as the Administrative Procedure Act

(APA)1 defines that term.2 In this case, a professional regulatory agency sent a letter to the primary

statewide association representing the regulated population warning that certain practices violated

agency rules and would lead to disciplinary action. The agency’s pronouncement went beyond a

mere restatement of its existing formally promulgated rules or underlying statutes. We have little

difficulty concluding that the substance and nature of this pronouncement distinguishes it as a “rule”

under the APA.



       1
        The APA is codified in chapter 2001 of the Texas Government Code. See Tex. Gov’t Code
§§ 2001.001–.902.
       2
           See id. § 2001.003(6).
                                         BACKGROUND

               As its name suggests, Teladoc, Inc., the appellant, is in the business of providing

health-care consumers access to a network of physicians who dispense medical services by

telephone. The basic features of Teladoc’s business model are undisputed. Through a website, an

individual consumer creates a personal account, provides access to personal information and

medical records, and can request consultation with a physician when the need arises. In that event,

a responding physician will access and review the patient’s information and medical records through

the website, then call the patient by telephone and consult with him or her. Based on the medical

records and history, the patient’s reported symptoms, and other information the physician elicits

during the consultation, the physician dispenses medical advice and, when deemed appropriate, can

prescribe certain medications.3 A nurse reviews any resulting prescriptions for allergies or potential

drug interactions before submission to the patient’s pharmacy. The consulting physician enters notes

and findings into the patient’s electronic health record, which is immediately made available to the

patient and the patient’s primary-care physician.

               Teladoc has operated in Texas since 2005, and its clientele currently includes

several large public and private health plans and managed-care organizations.4 But in June 2011,



       3
          Teladoc has emphasized that its physicians do not prescribe drugs that have a demonstrated
risk of abuse, such as narcotics, or non-therapeutic drugs like Viagra.
       4
           Teladoc indicates, and the Texas Medical Board does not dispute, that its customers
currently include “the entire commercially-insured population of Aetna in the State of Texas, as well
as several large group employers . . . and over three hundred smaller employers through non-Aetna
plans[,] . . . 800,000 members of the Texas State Medicaid managed care population, . . .
approximately 25,000 individuals within the Medicare population, . . . and a number of children in
foster care for the Texas Health and Human Services Commission.”

                                                    2
the Texas Medical Board (TMB or the Board)—the administrative agency that licenses and regulates

physicians in this state, including those participating in Teladoc’s network5—wrote Teladoc a letter

taking issue with “several recent representations by Teladoc regarding its internet program” that, in

TMB’s view, indicated that physicians would be “jeopardizing their respective licenses should they

choose to participate” in Teladoc’s network.

                The letter attacked “Teladoc[] advertising materials” for indicating that the physicians

in its network can provide medical services “over the telephone without any prior establishment

of a physician/patient relationship via a ‘face-to-face’ examination,” asserting that this practice

violated “Board Rule 190.8(1)(L).” That rule, codified in Title 28 of the Texas Administrative Code

at section 190.8(1)(L), is included among a non-exclusive list of physician acts and omissions that

TMB has deemed to constitute the “fail[ure] to practice medicine in an acceptable professional

manner consistent with public health and welfare” under the Medical Practice Act.6 The referenced

paragraph (L) specifically prohibits physicians from prescribing “any dangerous drug or controlled

substance without first establishing a proper professional relationship with the patient.”7 Since




       5
         See Tex. Occ. Code § 152.001 (creating TMB); see generally id. §§ 151.001–168.202
(Medical Practice Act). There is no contention that Teladoc itself is practicing medicine or is
otherwise directly subject to TMB’s regulatory authority.
       6
           22 Tex. Admin. Code § 190.8(1) (TMB, Violation Guidelines); see Tex. Occ. Code
§§ 153.001 (TMB’s rulemaking authority), 164.051(a)(6) (“The board may refuse to admit a person
to its examination or refuse to issue a license to practice medicine and may take disciplinary action
against a person if the person . . . fails to practice medicine in an acceptable professional manner
consistent with public health and welfare.”).
       7
           22 Tex. Admin. Code § 190.8(1)(L).

                                                   3
November 2003, and at all times relevant to this case, subparagraph (i) of paragraph (L) has

prescribed the requirements for creating a “proper professional relationship” as follows:


       (i)      A proper relationship, at a minimum requires:

                (I)     establishing that the person requesting the medication is in fact who
                        the person claims to be;

                (II)    establishing a diagnosis through the use of acceptable medical
                        practices such as patient history, mental status examination, physical
                        examination, and appropriate diagnostic and laboratory testing. An
                        online or telephonic evaluation by questionnaire is inadequate;

                (III)   discussing with the patient the diagnosis and the evidence for it, the
                        risks and benefits of various treatment options; and

                (IV)    ensuring the availability of the licensee or coverage of the patient for
                        appropriate follow-up care.8


According to TMB, the requirements set forth in (II)—“Rule 190.8(1)(L)(i)(II)”—meant that the

“acceptable medical practices” entailed in “establishing a diagnosis” (and, in turn, initiating a

“proper” physician-patient relationship) must always include a “‘face-to-face’ physical examination.”

As TMB would later elaborate, this construction rested upon two related premises: (1) the “physical

examination” contemplated in Rule 190.8(1)(L)(i)(II) entails a “face-to-face” examination; and, more

critically, (2) the rule’s reference to “acceptable medical practices such as patient history, mental

status examination, physical examination, and appropriate diagnostic and laboratory testing” means

that physicians must perform all four enumerated procedures or their equivalent. In TMB’s view,




       8
           28 Tex. Reg. 10496, 10497 (2003) (codified at 22 Tex. Admin. Code § 190.8(1)(L)(i)).

                                                   4
the “face-to-face” physical examination component of these requirements precluded a physician from

making an initial diagnosis by telephone.

                TMB’s letter similarly criticized Teladoc for purportedly advertising that the

telephone consultations it provides are not within the scope of revised rules governing

“telemedicine” that the agency promulgated in 2010. Telemedicine, simply described, refers to

medical services provided over the Internet or other “advanced communication technology” enabling

an off-site physician to see and hear the patient in real time.9 TMB’s 2010 telemedicine rules,

codified in chapter 174 of title 22 of the Texas Administrative Code,10 incorporate an explicit

concept of “face-to-face visit,” defined as “[a]n evaluation performed on a patient where the provider

and patient are both at the same physical location” unless the patient is located at a medical facility

qualifying as an “established medical site.”11 When a patient is located at an “established medical

site,” the rules permit a “distant site provider” to use “telemedicine medical services . . . for all

patient visits, including initial evaluations to establish a proper physician-patient relationship




       9
           See 22 Tex. Admin. Code § 174.2(10) (TMB, Definitions) (defining “Telemedicine
Medical Services” as “[t]he practice of medical care delivery, initiated by a distant site provider,
who is physically located at a site other than the site where the patient is located, for the purposes
of evaluation, diagnosis, consultation, or treatment which requires the use of advanced
telecommunications technology that allows the distant site provider to see and hear the patient in
real time”); see also Tex. Gov’t Code § 531.001(8) (defining same phrase as “a health care service
initiated by a physician or provided by a health professional, diagnosis or consultation by a
physician, treatment, or the transfer of medical data that requires the use of advanced
telecommunications technology”).
       10
            See 22 Tex. Admin. Code §§ 174.1–.12 (TMB Telemedicine rules).
       11
           See id. § 174.2(3) (defining “face-to-face visit”); see also id. § 174.2(2) (defining
“established medical site”).

                                                  5
between a distant site provider and a patient.”12 However, when a patient is located somewhere

other than an “established medical site,” a distant site provider may not provide telemedicine

medical services without first “see[ing] the patient one time in a face-to-face visit” or receiving a

referral from another physician who has performed an in-person evaluation of the patient.13 The

telemedicine rules additionally include a provision, Rule 174.8, that addresses the initial creation of

the physician-patient relationship in a manner similar to Rule 190.8(1)(L)(i):


       (a)     Evaluation of the Patient. Distant site providers who utilize telemedicine
               medical services must ensure that a proper physician-patient relationship is
               established which at a minimum includes:

               (1)     establishing that the person requesting the treatment is in fact whom
                       he/she claims to be;

               (2)     establishing a diagnosis through the use of acceptable medical
                       practices, including patient history, mental status examination,
                       physical examination (unless not warranted by the patient's mental
                       condition), and appropriate diagnostic and laboratory testing to
                       establish diagnoses, as well as identify underlying conditions or
                       contra-indications, or both, to treatment recommended or provided;

               (3)     discussing with the patient the diagnosis and the evidence for it, the
                       risks and benefits of various treatment options; and




       12
           Id. § 174.6 (TMB, Telemedicine Medical Services Provided at an Established
Medical Site).
       13
           See id. § 174.7(a) (TMB, Telemedicine Medical Services Provided at Sites other than
an Established Medical Site). The same rule additionally requires that any such patients obtain an
annual “in-person” evaluation by a physician and that existing patients receive face-to-face visits
within 72 hours after receiving telemedicine medical services related to new symptoms. See id.
§ 174.7(c), (e).

                                                  6
                 (4)     ensuring the availability of the distant site provider or coverage of the
                         patient for appropriate follow-up care.14


Subparagraph (2) generally corresponds to Rule 190.8(1)(L)(i)(II), but with an obvious textual

difference—whereas Rule 190.8(1)(L)(i)(II) requires “establishing a diagnosis through the use of

acceptable medical practices such as patient history, mental status examination, physical

examination, and appropriate diagnostic and laboratory testing,”15 Rule 174.8(a)(2) requires

“establishing a diagnosis through the use of acceptable medical practices, including patient

history, mental status examination, physical examination . . . and appropriate diagnostic and

laboratory testing.”16

                 While acknowledging that “phone consults were deleted from the [2010 telemedicine]

rule as adopted,” TMB in its letter insisted—notwithstanding the textual differences between

the enactments—that this exclusion had reflected its position “both initially and throughout

the [rulemaking] process” that the more general Rule 190.8(1)(L)(i)(II) had already required “‘face-

to-face’ consults [as] the only appropriate manner in which to establish a physician/patient

relationship.” The telemedicine rules had departed from this policy, TMB claimed, only to the

extent of “allow[ing] for situations in which th[e] required ‘face-to-face’ examination could be

accomplished through the use of the [I]nternet.” TMB also emphasized that Teladoc had commented




        14
             Id. § 174.8(a) (TMB, Evaluation and Treatment of the Patient).
       15
             Id. § 190.8(1)(L)(i)(II) (emphasis added).
       16
             Id. § 174.8(a)(2) (emphasis added).

                                                    7
in opposition to the telemedicine rules when proposed,17 characterizing the company as having

“maintain[ed] throughout the rulemaking process that ‘face-to-face’ examinations were not necessary

to establish a physician/patient relationship,” and portraying the agency’s response as a repudiation

of that position not only with respect to the telemedicine rules, but also Rule 190.8(1)(L)(i)(II).18

                Based on TMB’s view of Rule 190.8(1)(L)(i)(II) and the rule’s relationship with

the 2010 telemedicine rules, TMB accused Teladoc of “unconscionable” “misrepresentation” in

advertising or representing that “its process can be conducted over the telephone without any prior

establishment of a physician/patient relationship via a ‘face-to-face’ examination.” TMB added that

“[t]hese statements . . . if followed by licenced Texas physicians, will lead to disciplinary

action against the participating doctors in the program.” The agency also threatened that “any

representation that you [Teladoc] make regarding Teladoc’s program being in compliance with

Board rules will be directly and firmly refuted by the Board” and that “[t]he Board will take all legal

steps as are necessary should it see continued advertisements containing the material referenced

above.”

                Of final note, the letter advised that “[b]y copy hereof, the Board is sending this

correspondence to the Texas Medical Association,” and a copy was indeed transmitted by overnight

delivery to TMA’s Vice President and General Counsel. TMA, as TMB acknowledges, is the chief




       17
            Teladoc or affiliates evidently offer medical services over the Internet in other states.
       18
          The letter represents, for example, that “as Teladoc described its practices before the
Board members sitting on the rulemaking committee, Teladoc was told that it was then violating
Board rules and if it continued in that vein it would continue to be in violation of Board rules.”

                                                   8
statewide association representing the Texas medical profession, with over 48,000 physician and

medical student members.19

                 In response to this letter and its implications for Teladoc’s ability to do business in

Texas, the company sued TMB under section 2001.038 of the APA, which authorizes declaratory-

judgment claims against a state agency to challenge the “validity” or “applicability” of a “rule.”20

Teladoc contended that TMB’s letter—or, more precisely, the agency’s pronouncements therein

concerning the construction and effect of Rule 190.8(1)(L)(i)(II)—was in itself a “rule” under

the APA.21 Because TMB unquestionably did not comply with the APA’s notice-and-comment

rulemaking requirements before promulgating this new “rule,” Teladoc prayed that the

“rule” be declared void under APA section 2001.035.22 In the alternative, Teladoc prayed that the




        19
           As if to emphasize this fact, our oral-argument docket on the day we heard Teladoc’s
appeal also included, by happenstance, one of the many scope-of-practice lawsuits TMA has initiated
over the years on behalf of the Texas medical profession.
        20
           See Tex. Gov’t Code § 2001.038(a) (“The validity or applicability of a rule . . . may be
determined in an action for declaratory judgment if it is alleged that the rule or its threatened
application interferes with or impairs, or threatens to interfere with or impair a legal right or privilege
of the plaintiff.”), (c) (“The state agency must be a party to the action.”); see also Texas Dep’t of
Transp. v. Sunset Transp., Inc., 357 S.W.3d 691, 700 (Tex. App.—Austin 2011, no pet.) (explaining
that section 2001.038 waives sovereign immunity to the extent of the relief it authorizes) (citing
Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 123 (Tex. App.—Austin 2007,
no pet.)).
        21
             See Tex. Gov’t Code § 2001.003(6) (defining “rule”).
        22
          See id. §§ 2001.0225–.034 (rulemaking procedures), .035 (“A rule is voidable unless a
state agency adopts it in substantial compliance with Sections 2001.0225 through 2001.034.”).

                                                    9
district court remand the “rule” to TMB, pursuant to APA section 2001.040, to afford the agency the

opportunity to readopt or revise through proper APA procedures.23

                Teladoc subsequently sought summary judgment on its claims. TMB countered

with a cross-motion for summary judgment challenging whether its June 2011 letter had constituted

a “rule” under the APA and, in turn, whether Teladoc’s claims had invoked the district court’s

jurisdiction via section 2001.038.24 Concluding that “the June 16, 2011 letter . . . is not an

        23
          See id. § 2001.040 (“If a court finds that an agency has not substantially complied with
one or more of the procedural requirements of Sections 2001.0225 through 2001.034, the court may
remand the rule, or a portion of the rule, to the agency and, if it does so remand, shall provide a
reasonable time for the agency to either revise or readopt through established procedure.”).

           In addition to the declaratory relief it sought, Teladoc also asserted claims for temporary
and permanent injunctive relief to restrain the “rule’s” enforcement. The district court granted a
temporary restraining order, which was ultimately extended through judgment by agreement. On
appeal, however, Teladoc does not appear to complain of the district court’s dismissal of its claims
for injunctive relief.

           Teladoc also named as a defendant the TMB officer who had written the June 2011 letter
on the agency’s behalf—general counsel Nancy Leshikar, in her official capacity. At least with
respect to Teladoc’s claim for declaratory relief under APA section 2001.038, this amounts to a
duplicative but harmless pleading of the same claim for relief against the same defendant, TMB. See
Texas Dep’t of State Health Servs. v. Balquinta, 429 S.W.3d 726, 750 (Tex. App.—Austin 2014,
pet. filed) (suggesting that where sovereign immunity has been waived by APA section 2001.038
so as to permit suit against an agency, it is of no substantive consequence that claimant also named
agency official as a defendant to that claim) (citing Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d
835, 844 (Tex. 2007); cf. Texas State Bd. of Pharmacy v. Witcher, __S.W.3d__, No. 03-12-00560-
CV, 2014 WL 5654255, at *20 (Tex. App.—Austin Oct. 31, 2014, pet. filed) (reasoning that where
agency’s immunity from suit was waived by section 2001.171 of the APA, immunity was likewise
waived as to agency officers sued in their official capacities) (citing Koseoglu, 233 S.W.3d at 844).
For convenience, however, we refer to the relevant defendant solely as TMB.
        24
              See Slay v. Texas Comm’n on Envtl. Quality, 351 S.W.3d 532, 544–45
(Tex. App.—Austin 2011, pet. denied) (“From the face of the statute, a challenged agency action that
constitutes a ‘rule’ is among the facts (more precisely, a mixed question of law and fact) that must
exist in order for a claimant to successfully invoke, via section 2001.038, a trial court’s subject-
matter jurisdiction over the claim for relief authorized by the statute. If there is no ‘rule’ as defined

                                                   10
unpublished ‘rule’ within the meaning of the [APA],” the district court rendered judgment denying

Teladoc’s motion and granting TMB’s cross-motion, in effect sustaining the agency’s jurisdictional

challenge. This appeal ensued.


                                           ANALYSIS

                Teladoc brings two issues on appeal. In the first, Teladoc argues that TMB’s

June 2011 letter constitutes a “rule” under the APA as a matter of law, such that the district court

erred in denying Teladoc’s summary-judgment motion and granting TMB’s. Teladoc further prays

that we render judgment against TMB declaring the “rule” invalid or, alternatively, remanding it to

TMB under APA section 2001.040. In its second issue, urged in the alternative, Teladoc contends

that even if it is not entitled to summary judgment, TMB has likewise failed to meet its summary-

judgment burden, such that we should reverse the district court’s judgment and remand for

further proceedings.


Standard of review

                We review the district court’s summary-judgment rulings de novo.25 Summary

judgment is proper when there are no disputed issues of material fact and the movant is entitled to

judgment as a matter of law.26 Where, as here, both sides move for summary judgment and the


by the APA being challenged, in other words, the claimant cannot obtain the declaratory relief
the statute authorizes against the State, its agencies, or its agents, because sovereign immunity
would bar the cause of action.”) (citing Combs v. City of Webster, 311 S.W.3d 85, 100–01
(Tex. App.—Austin 2009, pet. denied)).
       25
            Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
       26
            Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004).

                                                11
trial court grants one motion and denies the other, we review the summary-judgment evidence

presented by both sides, determine all questions presented, and render the judgment that the

district court should have rendered.27

                In this case, the pivotal summary-judgment issue turns on application of statutes and

rules to undisputed facts—whether TMB’s June 2011 letter, whose contents are in the record and

undisputed, qualifies as a “rule” as the APA has defined that term.28 If the letter is not a “rule,”

Teladoc failed to invoke the district court’s jurisdiction through APA section 2001.038.29 If, on

the other hand, the letter is a “rule,” Teladoc both properly invoked the district court’s jurisdiction

through section 2001.038 and established its entitlement to summary judgment on its declaratory

claim under that statute, as it is undisputed that TMB did not promulgate the letter in accordance

with the APA’s notice-and-comment rulemaking requirements.30

                Construction of both statutes and administrative rules presents questions of law that

we review de novo under traditional principles of statutory construction.31 Our primary objective


       27
          Texas Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648
(Tex. 2004); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
       28
            Teladoc also emphasizes summary-judgment evidence of what it characterizes as TMB’s
prior explicit or tacit agreement that initial physician-patient consultations by telephone satisfy
Rule 190.8(1)(L)(i)(II). Because we conclude the contents of the letter itself conclusively establish
that it is a “rule,” we need not address this additional evidence or its possible implications.
       29
            See, e.g., Slay, 351 S.W.3d at 544–45, 548.
       30
         See, e.g., El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm’n, 247 S.W.3d
709, 715 (Tex. 2008); Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 723–24
(Tex. App.—Austin 2009, no pet.).
       31
          See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011) (holding
that administrative rules are interpreted under principles of statutory construction); City of Rockwall

                                                  12
is to ascertain and give effect to the drafters’ intent.32 We determine that intent from the plain

meaning of the words chosen when it is possible to do so, using any definitions provided.33 We

consider the statutes or rules as a whole rather than their isolated provisions.34 We presume that the

enactment’s language was chosen with care, with each word included (or omitted) purposefully.35


A rule?

                The APA defines a “rule” as follows:


      “Rule”:

               (A)     means a state agency statement of general applicability that:

                       (i)    implements, interprets, or prescribes law or policy; or

                       (ii)   describes the procedure or practice requirements of a
                              state agency;

               (B)     includes the amendment or repeal of a prior rule; and




v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008) (“Statutory construction is a legal question we
review de novo.”).
       32
          See TGS-NOPEC, 340 S.W.3d at 439 (citing Tex. Gov’t Code § 312.005; Texas Dep’t of
Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004)).
       33
            See id. (citing Tex. Gov’t Code § 311.011(b)).
       34
          See id. (citing Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642
(Tex. 2004)).
       35
            See id. (citing In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)).

                                                 13
                (C)    does not include a statement regarding only the internal
                       management or organization of a state agency and not affecting
                       private rights or procedures.36


Teladoc asserts that TMB’s letter satisfies each element of this definition. TMB does not dispute

that its letter is a “state agency statement,” as required by (A), and it plainly is—it purports to speak

for the Board, conveying its official position, and there is no contention that the writer, the agency’s

general counsel, was acting with anything less than the Board’s full authority.37 Similarly, the

statement obviously “implements, interprets, or prescribes law or policy,” reflecting the Board’s

construction and application of Rule 190.8(1)(L)(i)(II) and the underlying statutory concept of

practicing medicine “in an acceptable professional manner consistent with public health and

welfare.”38 The statement likewise implements a broader policy judgment by the Board, reflected

explicitly in the 2010 telemedicine rules, that the creation of a new physician-patient relationship

should generally entail an in-person physical examination.39 The statement would also impact


        36
             Tex. Gov’t Code § 2001.003(6).
        37
           See Entertainment Publ’ns, 292 S.W.3d at 718, 721–22 (letter signed by the “Assistant
Director of Tax Administration” of the Comptroller’s office conveying Comptroller’s construction
of tax laws was a “rule” under the APA; noting that “the Comptroller does not contend that the
signer of the letter was acting with anything less than her full authority”).
        38
           See id. at 721 (“There is no question” that letters conveying Comptroller’s construction
of tax laws are “statements implementing, interpret[ing], or prescribing law or policy,” as they
“interpret[ed] the tax code to mean that [brochure-fundraising] firms are, for purposes of collecting
and remitting sales tax, always the ‘sellers’ of the taxable items.”).
       39
           See El Paso Hosp. Dist., 247 S.W.3d at 714 (HHSC’s “February 28 cutoff” used in
calculating Medicaid reimbursement rates “implements law” and “implements policy”); Witcher,
2014 WL 5654255, at *7 (“The Board’s disciplinary order . . . leave[]s little doubt” that
Board’s de facto “reciprocal-sanctions” requirement “is a statement implementing, interpreting, or
prescribing the agency’s policy . . . .”).

                                                   14
private rights and not merely internal agency management or organization, thereby negating the

exception in (C)—TMB unambiguously and definitively asserts that a physician’s provision of

prescriptions or other medical services “over the telephone without any prior establishment of a

physician/patient relationship via a ‘face-to-face’ examination” violates Rule 190.8(1)(L)(i)(II) and

will prompt legal action that includes “disciplinary action against the participating doctors.”40

               TMB joins issue, however, as to whether the letter represents an agency statement of

“general applicability.” Agency statements of “general applicability” refer to those “that affect

the interest of the public at large such that they cannot be given the effect of law without public

comment,” as contrasted with statements “made in determining individual rights.”41 Its letter

does not meet this requirement, TMB insists, because it was “directed only at Teladoc.” That

narrow characterization is conclusively refuted by the contents of the letter itself. While the letter

certainly seeks in part to influence or impede Teladoc’s Texas operations, it also pronounces a

rule construction that impacts all physicians practicing in this state—accompanied by a threat of

“disciplinary action” against any physicians who would dare to deviate from the Board’s view.42 The


       40
            See Witcher, 2014 WL 5654255, at *7 (noting that Board’s order was essentially statement
that it was “duty bound” to impose disciplinary action based on interpretation); Entertainment
Publ’ns, Inc., 292 S.W.3d at 722 (emphasizing that legal interpretation in Comptroller’s letters
would bind agency employees and “unambiguously express[ed] an intent to apply this interpretation
. . . in all future cases” involving similar facts); see also Witcher, 2014 WL 5654255, at *10
(distinguishing Board of Pharmacy’s reciprocal-sanctions “rule” from the non-binding evaluative
sanctions guidelines addressed in Slay, 351 S.W.3d at 537–42, 546–48).
       41
         See Entertainment Publ’ns, Inc., 292 S.W.3d at 721 (quoting El Paso Hosp. Dist.,
247 S.W.3d at 714; Railroad Comm’n v. WBD Oil & Gas Co., 104 S.W.3d 69, 79 (Tex. 2003)).
       42
            See id. at 721–22 (Comptroller’s letters regarding tax treatment of brochure-fundraising
firms “apply not only to Entertainment and the tax-exempt groups with which it conducts business,
but to all brochure-fundraising firms engaging in business across the state.”).

                                                 15
letter is also pointedly copied to TMA, the chief statewide professional organization representing

Texas physicians and medical students. In short, the letter and the manner of its dissemination are

plainly calculated to place the regulated public—Texas physicians—on notice of the agency’s legal

pronouncement and the accompanying threat of adverse consequences if they fail to comply.43

                A potentially more complicated question on which the parties diverge is whether

the pronouncements in the letter should be considered to have any legal effect or significance

independent of what is already contained in Rule 190.8(1)(L)(i)(II). Subpart (B) of the APA’s

definition states that a “rule” “includes the amendment or repeal of a prior rule.”44 While “includes”

denotes that a “rule” may include agency statements beyond those that amend or repeal an existing

rule, “this indicia of a ‘rule,’” as we have previously observed, “is nonetheless illustrative of the

types of agency actions that would [be considered to] have legal effect on private persons, as




       43
           See id. at 722 (“[W]hile the interpretation [of Tax Code in letters] would bind agency
employees to apply the rule in analyzing the tax responsibilities to parties to these sales, it is not
directed ‘only’ to the ‘internal management or organization of a state agency.’ Rather, it is aimed
at placing the regulated public on notice of the Comptroller’s prospective, blanket application of
[the] tax code.”) (internal citation omitted); see also id. (concluding that the manifested “intent of
the agency, the prescriptive nature of the [letters], and the context in which the agency statement was
made” distinguished them as a “rule”) (quoting Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 443
(Tex. 1994)).

         Similarly misplaced is TMB’s reliance on Beacon National Insurance Co. v. Montemayor,
which rejected an attempted APA section 2001.038 challenge to an asserted “rule” consisting
“only [of] a series of letters between Beacon and TDI and a proposed consent decree submitted
to Beacon by TDI.” 86 S.W.3d 260, 268–69 (Tex. App.—Austin 2002, no pet.). The Beacon Court
emphasized that “the correspondence from TDI about which Beacon complains is directed at
Beacon only” and did not “equate to a specific agency rule, set of requirements, or specific policy.”
Id. 268–69. None of that is true of TMB’s letter here.
       44
            Tex. Gov’t Code § 2001.003(6)(B).

                                                  16
contemplated by [(C)].”45 Consequently, as we explained in Sunset Transportation, “an informal

agency statement that does no more than merely restate its own formally promulgated rules

would not in itself be a ‘rule,’”adding that this proposition is perhaps one of the few that can be

discerned with “relative certainty” in this notoriously muddled corner of the law.46 But in the

aftermath of the Texas Supreme Court’s El Paso Hospital decision, it is equally clear that an

agency’s “interpretations” or “applications” of existing formally promulgated rules will themselves

be held to be “rules” where they have the effect of amending the existing rules, or of creating new

rules, and the other requirements of the APA’s “rule” definition are met.47 Similarly, the bare fact

that an agency statement might be said to “interpret” or effectuate only standards already prescribed

in existing statutes or rules, as opposed to creating new standards, cannot categorically mean that the

statement lacks the sort of legal effect on private persons that distinguishes a “rule,” as the same

would be true of any “agency statement of general applicability that . . . interprets . . . law,” and the

Legislature has explicitly included such statements within the Texas APA’s definition of “rule.”48


        45
             Sunset Transp., 357 S.W.3d at 704.
        46
           Id. at 703; accord Texas Dep’t of Pub. Safety v. Salazar, 304 S.W.3d 896, 904
(Tex. App.—Austin 2009, no pet.) (DPS internal memorandum prescribing that drivers’ licenses will
include statement of bearer’s immigration status “merely reiterates” rule already imposing that
requirement).
        47
          See El Paso Hosp. Dist., 247 S.W.3d at 714–15 (holding agency statement to be a “rule”
despite agency’s insistence that it “is not a rule itself, but rather its interpretation of the [existing]
rule”). Accord Witcher, 2014 WL 5654255, at *9–10.
        48
          See Tex. Gov’t Code § 2001.003(6)(A); see also Entertainment Publ’ns, 292 S.W.3d
at 723 n.6 (acknowledging that the Court’s analysis reached the same conclusion as would
applying Professor Ron Beal’s analysis to identify an “interpretive rule”) (citing Ron Beal,
A Miry Bog Part II: UDJA and APA Declaratory Judgment Actions and Agency Statements Made
Outside a Contested Case Hearing Regarding the Meaning of the Law, 59 Baylor L. Rev. 267,

                                                   17
                 The “agency statement” held to be a “rule” in El Paso Hospital was HHSC’s

“interpretation” of its formally promulgated rules governing calculation of Medicaid reimbursement

rates to divine a temporal cut-off for the data set that was not found in the text of the existing rules.49

A more recent example of an agency rule “interpretation” held to itself constitute a “rule” is

found in this Court’s Witcher decision, in which the Board of Pharmacy had applied a multi-factor

sanctions rule in a manner that effectively made only one of the factors singularly dispositive.50 At

the opposite end of the spectrum is the situation we addressed in Sunset Transportation, where the

asserted “rule”—an informational “notice” issued by the Texas Department of Transportation

concerning regulatory changes impacting certain interstate motor carriers51—was substantively

identical to the agency’s formally promulgated rules.52 We further observed that “distinguishing a




270 (2007); Ron Beal, The APA and Rulemaking: Lack of Uniformity Within a Uniform System,
56 Baylor L. Rev. 1, 29–46 (2004)). As Professor Beal further notes, the Texas APA differs from
its federal counterpart in making “rules” that “interpret” law or policy—the so-called “interpretive
rules”—subject to notice-and-comment rulemaking requirements. Ronald L. Beal, Texas
Administrative Practice & Procedure, § 2.3.4 (2014) (citing 5 U.S.C. § 553(b)(3)(a)).
        49
             See El Paso Hosp. Dist., 247 S.W.3d at 714–15.
        50
             See Witcher, 2014 WL 5654255, at *10.
        51
             See Sunset Transp., 357 S.W.3d at 700–01.
        52
           See id. at 704. The portions of the notice at issue consisted of (1) a statement that “[a]ll
motor carriers must maintain active insurance filing with TxDOT at all times;” and (2) a statement
that motor carriers whose state registrations have been revoked “are required to re-register
and submit applicable fees.” The first challenged statement, we observed, “tracks TxDOT’s rules”
requiring motor carriers to “file and maintain proof of automobile liability insurance for all vehicles
required to be registered.” Id. (quoting 43 Tex. Admin. Code § 218.16(e)(1)(A)). The second
challenged statement, we concluded, “tracks TxDOT’s rules providing that ‘[i]f a motor carrier that
has registered [under the statute requiring it] does not maintain continuous motor carrier registration

                                                    18
mere restatement of a formally promulgated rule from a statement that is itself a ‘rule,” was

“straightforward” on the record presented there, but “might prove more elusive in other

circumstances.”53

                  The parties urge diametrically opposing views as to where TMB’s letter lies along

this continuum. Teladoc argues that the “construction” of Rule 190.8(1)(L)(i)(II) pronounced in

TMB’s letter amounts to an amendment of that formally promulgated rule, similar to the temporal

cut-off in El Paso Hospital. It reasons that Rule 190.8(1)(L)(i)(II)’s requirement of “. . . acceptable

medical practices such as patient history, mental status examination, physical examination, and

appropriate diagnostic and laboratory testing” denotes a non-exclusive list of illustrative examples

of “acceptable medical practices,” emphasizing dictionary definitions to that effect.54 Consequently,

Teladoc urges, Rule 190.8(1)(L)(i)(II) contemplates that a “physical examination” (whether “face-to-

face” or through some other means) is merely one type of “acceptable medical procedure”

through which a physician might permissibly make an initial diagnosis in a given case consistent

with the standard of care. In pronouncing that a physical examination—and, indeed, each of the


under [the statute], the motor carrier must file an application under [the statute] to operate on
public streets and highways in this state.” Id. (citing 43 Tex. Admin. Code § 218.14(c) and related
rule governing registration requirements and fees, § 218.13).
       53
            Id.
       54
           See, e.g., The American Heritage Dictionary of the English Language 1740 (5th ed. 2011)
(defining “such” as “[o]f this kind” and “[o]f a kind specified or implied,” and describing the
idiom “such as” to mean “[f]or example”); see also Martinez v. Harris Cnty., 808 S.W.2d 257, 259
(Tex. App.—Houston [1st Dist.] 1991, writ denied) (holding that list of activities after “such as” was
illustrative only and not exclusive); Board of Adjustment v. Levinson, 244 S.W.2d 281, 282–283
(Tex. Civ. App.—San Antonio 1951, no writ) (“The synonyms of ‘such as,’ are alike, similar, of the
like kind; ‘such’ representing the object as already particularized in terms which are not mentioned,
being a descriptive and relative word, referring to the specific articles mentioned.”).

                                                  19
other examples of “acceptable medical procedures” mentioned in Rule 190.8(1)(L)(i)(II) or their

equivalent—are all required in every case, TMB’s letter, in Teladoc’s view, departs from that rule’s

unambiguous text to an extent as to effectively rewrite it.

                In contrast, TMB insists that its letter merely “restates” Rule 190.8(1)(L)(i)(II),

emphasizing two textual features of that enactment. First, pointing to the conjunction “and” within

the rule’s enumeration of “. . . acceptable medical practices such as patient history, mental

status examination, physical examination, and appropriate diagnostic and laboratory testing,”

TMB urges that “such as . . .” must refer to all four of the cited procedures collectively as

the exemplar of “acceptable medical practices.” Second, TMB insists that the concluding sentence

in Rule 190.8(1)(L)(i)(II)—“An online or telephonic evaluation by questionnaire is

inadequate”—unequivocally bars physicians from relying only on a telephone consultation

when establishing a physician-patient relationship. Teladoc counters that in the context of

Rule 190.8(1)(L)(i)(II)’s use of “and” following “such as,” “and” is merely the equivalent of “or,”

as suggested by Webster’s use of the following example to illustrate the definition of “such

as”—“course fish such as carp, catfish, and the like.”55 Were TMB’s view of the rule correct,

Teladoc suggests, it would imply that “course fish such as . . . ” in the Webster’s illustration must

refer to a conflation of “carp, catfish, and the like” that is unknown to nature, a nonsensical

construction. As for Rule 190.8(1)(L)(i)(II)’s last sentence, Teladoc accuses TMB of rewriting the

rule again by ignoring the modifier “. . . online or telephonic evaluation by questionnaire . . .” “By

questionnaire,” Teladoc observes, denotes the use of a script or finite list of questions that are asked


       55
            Webster’s Third New Int’l Dictionary 2283 (2002) (defining “such”).

                                                  20
without regard to the person being questioned.56 Evaluation or consultation without the use of a

questionnaire—such as the sorts of open-ended questions that a doctor in search of a diagnosis might

ask, whether in person or over the phone—are not prohibited, Teladoc urges.

               TMB also insists that Rule 190.8(1)(L)(i)(II) must be read “in context” with its

2010 telemedicine rules. By this, TMB means that the two enactments must be construed to impose

parallel requirements of a “face-to-face” physical examination as part of a physician’s initial

evaluation of a new patient. Were it otherwise, TMB reasons, physicians could “evade” the face-to-

face physical examination requirements imposed by the telemedicine rules “simply by picking up

the telephone and calling the patient.”57 Teladoc replies that if the 2010 telemedicine rules have

any bearing on the meaning of the 2003-enacted Rule 190.8(1)(L)(i)(II), it is only to illustrate stark

textual differences between the two rules, most notably the contrast between Rule 174.8’s reference

to “ . . . acceptable medical practices, including patient history, mental status examination, physical




       56
           See, e.g., American Heritage at 1444 (defining “questionnaire” as “[a] form containing
a set of questions, especially one addressed to a statistically significant number of subjects as a way
of gathering information for a survey”).
       57
           To similar effect, citing its responses to a comment from Teladoc regarding the proposed
2010 telemedicine rules, TMB emphasizes an excerpt in which it described Rule 174.8 as “consistent
with and mirror[ing] the language of 22 TAC § 190.8(1)(L).” 35 Tex. Reg. 9085, 9090 (2010)
(comment to adopted rule 22 Tex. Admin. Code § 174.8). This statement responded to a comment
concerning a requirement within Rule 174.8 regarding follow-up care and, in context, would
appear to refer solely to that feature of the two enactments, not the broader correlation TMB
insinuates. See id. Regardless, TMB’s characterization of the relationship between the telemedicine
rules and the preexisting Rule 190.8(1)(L)(i)(II) would be no more authoritative regarding the
latter provision’s meaning than the similar ex-post assertions contained in its June 2011 letter. Cf.
Entertainment Publ’ns, 292 S.W.3d at 717–18 (noting Comptroller’s Office’s attempt to portray new
tax code interpretation as one it “has consistently held”).

                                                  21
examination . . . and appropriate diagnostic and laboratory testing”58 as compared to

Rule 190.8(1)(L)(i)(II)’s “. . . acceptable medical practices such as patient history, mental status

examination, physical examination, and appropriate diagnostic and laboratory testing.”59

“Including,” Teladoc urges, is a term of enlargement that encompasses all that follows,60 in contrast

to the list of examples denoted by “such as.” Such textual distinctions, as Teladoc emphasizes, must

be given effect when construing Rule 190.8(1)(L)(i)(II).61

                At bottom, Teladoc argues, TMB’s letter amounts to a procedurally invalid

amendment to conform Rule 190.8(1)(L)(i)(II) to Rule 174.8 merely by declaring that the

two textually contrasting provisions actually mean the same thing. In that regard, Teladoc also

emphasizes that when promulgating the current version of Rule 174.8 referring to “ . . . acceptable

medical practices, including patient history, mental status examination, physical examination . . . and

appropriate diagnostic and laboratory testing” in 2010, TMB actually replaced a prior version that

had contained language parallel to Rule 190.8(1)(L)(i)(II) and referring to “ . . . acceptable medical

practices such as patient history, mental status examination, and appropriate diagnostic and



       58
            22 Tex. Admin. Code § 174.8(a)(2) (emphasis added).
       59
            Id. § 190.8(1)(L)(i)(II) (emphasis added).
       60
          See Tex. Gov’t Code § 311.005(13) (“‘Includes’ and ‘including’ are terms of enlargement
and not of limitation or exclusive enumeration, and use of the terms does not create a presumption
that components not expressed are excluded.”).
       61
          See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d
619, 628 (Tex. 2011) (“When the legislature uses a word or phrase in one portion of a statute but
excludes it from another, the term should not be implied where it has been excluded.”); see also
TGS-NOPEC, 340 S.W.3d at 439 (we presume that the enactment’s language was chosen with care,
with each word included (or omitted) purposefully).

                                                  22
laboratory testing.”62 This history, Teladoc contends, betrays not only TMB’s understanding of the

significant difference in the meaning of “including” versus “such as,” but its awareness that a change

between the two must properly be achieved through the APA’s notice-and-comment rulemaking

processes and not by the naked fiat it relies on here.

                We agree with Teladoc that TMB’s pronouncements in its June 2011 letter are

tantamount to amendments to the existing text of Rule 190.8(1)(L)(i)(II), effectively substituting

“including” for “such as,” thereby conforming it to the 2010 telemedicine rules. Similarly, to the

extent the pronouncement also rests upon Rule 190.8(1)(L)(i)(II)’s last sentence, TMB’s letter

effectively deleted the modifying phrase “by questionnaire.” TMB’s pronouncements hardly “track”

Rule 190.8(1)(L)(i)(II) in the manner of the TxDOT notice in Sunset Transportation—rather, they

depart from and effectively change that text.63

                In contending otherwise, TMB ultimately insists that even if Rule 190.8(1)(L)(i)(II)

fails to unambiguously support its “interpretation,” the letter is at least consistent with a reasonable

interpretation to which that ambiguous rule would be susceptible and would be accorded deference

under the principles that govern judicial review of agency rule constructions.64 But even if we

assume TMB’s pronouncement could somehow be reconciled with Rule 190.8(1)(L)(i)(II)’s text,


       62
           See 35 Tex. Reg. 9085 (2010) (codified at 22 Tex. Admin. Code § 174.8) (proposed
Apr. 30, 2010); 29 Tex. Reg. 6088, 6089 (codified at 22 Tex. Admin. Code § 174.4 (Use of the
Internet in Medical Practice) (proposed Apr. 23, 2004), repealed 35 Tex. Reg. 9085 (2010)
(emphasis added). An earlier version of the same rule, promulgated in 2003, had also contained the
same “such as” language. See 28 Tex. Reg. 3325 (2003) (codified at 22 Tex. Admin. Code § 174.17
(Use of the Internet in Medical Practice), repealed 29 Tex. Reg. 6088 (2004).
       63
            Cf. Sunset Transp., Inc., 357 S.W.3d at 704; Salazar, 304 S.W.3d at 904.
       64
            See, e.g., TGS-NOPEC, 340 S.W.3d at 438.

                                                  23
as the agency insists, the letter would still have the effect of amending the rule so as to adopt one of

the alternative reasonable constructions to which the current text would be susceptible while

rejecting another. To that extent, at least, the pronouncement would have a legal effect on private

parties beyond that achieved through the text of Rule 190.8(1)(L)(i)(II) alone. To hold that the

pronouncement has no such effect because it “interprets” or “applies” Rule 190.8(1)(L)(i)(II) to

resolve an ambiguity would be, as previously suggested, logically inconsistent with the Legislature’s

explicit recognition that a “rule” under the APA includes an “agency statement of general

applicability that . . . interprets . . . law.”65


        65
            See Tex. Gov’t Code § 2001.003(6)(A). To the extent Texas Mutual Insurance Co.
v. Vista Community Medical Center Hospital, 275 S.W.3d 538 (Tex. App.—Austin 2008,
pet. denied), could be construed as holding to the contrary, we conclude it is not controlling. Vista
concerned disputes arising under a formal rule promulgated by the Division of Workers’
Compensation that had imposed a “stop-loss” limitation on reimbursement payments made to
hospitals. After administrative law judges (ALJs) at the State Office of Administrative Hearings
(SOAH) reached divergent conclusions regarding the proper construction of the stop-loss rule in
deciding medical-reimbursement disputes, the director of SOAH’s medical-review division prepared
a one-page memorandum advocating what the director viewed as the proper construction of the rule,
which SOAH ALJs followed for a period thereafter. See id. at 545–46. In relevant part, this Court
held that the memorandum was not itself a “rule” void for failure to comply with APA rulemaking
requirements. See id. at 555–56. The Court reasoned in part that the memorandum was not a
“state agency statement” because it had never been adopted or approved by the relevant agency,
the Division. See id. at 555. The Court went on, however, to conclude that the memorandum was
merely a statement regarding SOAH’s “internal management” that “did not affect private rights”
because “it [was] designed to correct [ALJ’s] inconsistent application or the Stop-Loss Exception”
and “it did not change or amend [the stop-loss rule]; it simply mandated internal consistency when
applying the rule.” Id. at 556. Vista’s assertion that this memorandum was purely “internal” and
had no impact on private rights is arguably inconsistent with both El Paso Hospital and this Court’s
more recent jurisprudence like Entertainment Publications and Witcher, inasmuch as the rule
construction advocated in the memorandum was to be applied, and was applied, by SOAH ALJs in
deciding medical fee disputes, plainly impacting private rights. Cf. El Paso Hosp. Dist., 247 S.W.3d
at 714–15 (agency’s cut-off date affected hospitals’ private rights); Witcher, 2014 WL 5654255,
at *7 (emphasizing general applicability of the agency interpretation and its impact on the
private rights); Entertainment Publ’ns, 292 S.W.3d at 721 (noting that applying interpretation to all

                                                    24
               Finally, TMB urges that “sound public policy” warrants a narrow construction of the

APA’s “rule” definition that would exclude the pronouncements in its letter. “If this type of letter

constitutes a ‘rule,’” TMB insists, the “alternatives left to an agency . . . that wishes to alert a

regulated entity that it [in the agency’s opinion] is violating a statute or regulation” would

be confined to the following “poor option[s]”: (1) “without warning, simply initiate administrative

proceedings”; (2) “send correspondence stating that the entity is violating a rule but without

providing any additional explanation,” leaving the entity to “merely guess at the basis for the alleged

violation”; or (3) “initiate rulemaking proceedings each time it wants to notify a regulated entity of

a possible violation.” The latter option is especially odious in TMB’s view, quoting the following

familiar excerpt from this Court’s 1999 Brinkley opinion, seemingly cited by this state’s

administrative agencies with greater frequency and fervor than even the Texas Constitution:


       Agencies would be reduced to impotence . . . if bound to express their views as to
       ‘law,’ ‘policy,’ and procedural ‘requirements’ through contested-case hearings or
       formal rules exclusively; and they could not under such a theory exercise powers
       explicitly delegated to them by the [L]egislature. . . . If every expression by the
       agency as to ‘law,’ ‘policy,’ and procedural ‘requirements’ requires the promulgation
       of a formal rule, the agency could no longer exercise its ‘informed discretion’ to
       choose adjudication as a means of making law and policy rather than rulemaking, a




brochure-fundraising firms affected private rights). Similarly, as for the suggestion that the
memorandum did not impact private rights because it represented one of two competing
constructions of the stop-loss rule, Vista cites no supporting authority beyond attempting to contrast
the memorandum with the cut-off “rule” in El Paso Hospital, which it characterized as
“contradict[ing]” the underlying formal rules. See Vista, 275 S.W.3d at 556. But leaving aside the
merits of these assertions by the Vista Court, see Sunset Transp., 357 S.W.3d at 704 (citing Vista as
example where the distinction between “a mere restatement of a formally promulgated rule” and “a
statement that is itself a ‘rule’” was “elusive”), they can be classified as dicta given the Court’s
preceding holding that the memorandum was not a “state agency statement” at all. See id. at 555.

                                                  25
        choice we have repeatedly said an agency has when it possesses both adjudicatory
        and rulemaking powers.66


An agency’s discretion to “mak[e] ‘law’ or ‘policy’” through adjudication is not unlimited, of course,

as this Court has most recently held in Witcher,67 but the more critical observation here is that our

construction of the APA’s “rule” definition does not imply the stark alternatives Brinkley and TMB

suggest. As the Texas Supreme Court observed in Leeper, “Not every statement by an administrative

agency is a rule for which the APA prescribes procedures for adoption and for judicial review,”68 and

the Act defines “rule” in a way that will exclude a considerable range of unofficial, individually

directed, tentative or other non-proscriptive agency or staff issuances concerning law or policy.69

                 But where, as here, an agency’s legal or policy pronouncements seek to control the

conduct of a free people through the assertion or threatened assertion of State power, agency

“impotence” is hardly the relevant concern under our Constitution and laws. Rather, it is the risk that

agencies—whose legitimate authority and very existence must derive from law and not merely




        66
             Brinkley v. Texas Lottery Comm’n, 986 S.W.2d 764, 769 (Tex. App.—Austin 1999,
no pet.).
        67
          See Witcher, 2014 WL 5654255, at *12–13 (discussing principles that limit ad hoc
rulemaking).
        68
             Leeper, 893 S.W.2d at 443.
        69
           See Tex. Gov’t Code § 2001.003(6); Combs, 311 at 100–01 (noting that appellees
could not point to any specific “statement” by the comptroller); see also Ronald L. Beal, Texas
Administrative Practice & Procedure § 2.3.4 (2014) (illustrating examples of agency statements that
would fall short of “rules”).

                                                  26
perceived “expediency”70—will stray from their legal limitations (perhaps with the best of individual

intentions, but exceeding them nevertheless) through what federal courts have aptly termed a

“tyranny of small decisions” that substantively assert Executive or Legislative power over the

citizenry through forms calculated to avoid the meaningful checks and balances the Framers intended

the Judiciary to provide.71 In very recently rejecting agency claims to an absolute right to supersede

adverse trial court judgments pending appeal, the Texas Supreme Court cited similar concerns:


       The State’s position—boundless entitlement to supersede adverse non-money
       judgments—would vest unchecked power in the executive branch, at considerable
       expense to the judicial branch, not to mention the wider public we both serve. The
       Texas Constitution divides governing power among three branches, and power seized
       by one branch necessarily means power ceded by another. Our State Constitution,
       like Madison’s Federal handiwork, is infused with Newtonian genius: three rival
       branches locked in synchronous orbit by competing interests—ambition checking
       ambition. These are abstract principles, but they have real-world ripple effects on
       the lives of everyday Texans. This case is Exhibit A. TRAP 24.2(a)(3) gives the
       trial court discretion, quite sensibly, to prevent the State from re-revoking Montalvo’s
       certification—the ultimate professional sanction—while it spends years appealing
       the court’s reversal of the State’s first revocation, something the trial court found
       “arbitrary and capricious.” The State—as yet unsupported by a victory on the merits
       in any court—wants to strip Montalvo of his livelihood while the appellate process
       grinds on . . . . That’s a striking assertion of unbridled executive power—to enforce




       70
          See, e.g., Public Util. Comm’n v. City Pub. Servs. Bd., 53 S.W.3d 310, 316 (Tex. 2001)
(“[W]hen the Legislature expressly confers a power on an agency, it also impliedly intends that the
agency have whatever powers are reasonably necessary to fulfill its functions or duties. An agency
may not, however, exercise what is effectively a new power, or a power contradictory to the statute,
on the theory that such a power is expedient for administrative purposes.”).
       71
           See Iowa League of Cities v. Environmental Prot. Agency, 711 F.3d 844, 873
(8th Cir. 2013) (quoting Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592, 596
(5th Cir. 1995)).

                                                 27
       administrative orders that a trial court has reversed—and TRAP 24.2(a)(3) recognizes
       the judiciary’s authority to say no.72


With similar perceptiveness, the Legislature, through the APA, has enabled affected citizens to

invoke judicial jurisdiction, through section 2001.038, to test the “validity” or “applicability” of

agency pronouncements that rise to the level of “rules”—including those that “interpret” law or

policy—and required that the further checks of transparency, public participation, and reasoned

justification must precede such assertions of agency authority. We must give effect to these

important safeguards, as the Legislature has intended.




       72
           In re State Bd. for Educator Certification, No. 13-0537, 2014 Tex. LEXIS 1208, at *17–18
(Tex. Dec. 19, 2014); see Tex. Const. art. II, § 1 (“The powers of the Government of the State of
Texas shall be divided into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive
to another, and those which are Judicial to another; and no person, or collection of persons, being
of one of these departments, shall exercise any power properly attached to either of the others, except
in the instances herein expressly permitted.”); see also City of Dallas v. Stewart, 361 S.W.3d
562, 577 (Tex. 2012) (citing approvingly to scholarship suggesting that administrative agencies,
in assuming adjudicatory, rulemaking, and administrative functions in a manner not obviously
contemplated by the tripartite constitutional structure, suffer from a “chronic ‘legitimacy crisis’”
(citing Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1842–43
(2005)).

          To the extent TMB argues that its letter resembles those that Brinkley held to be “simply
advisory guidelines” that “have no legal effect on private persons,” see Brinkley, 986 S.W.2d at 770-
71 & nn. 9 & 10, we observe that Brinkley’s analysis was premised on the view that agency
pronouncements of law have no material effect on private rights unless issued in the form of formal
rules or contested-case orders. Id. at 769. That premise has been eroded, to say the least, by this
Court’s precedents that have been informed by the Texas Supreme Court’s intervening El Paso
Hospital decision. In short, if Brinkley would imply a different result here, we need go no farther
than to conclude it is distinguishable.

                                                  28
                We hold that TMB’s pronouncements regarding Rule 190.8(1)(L)(i)(II) contained in

its June 2011 letter are a “rule” as a matter of law. Accordingly, we sustain Teladoc’s first issue and

need not reach its second issue, which it argues in the alternative.73


                                          CONCLUSION

                Having sustained Teladoc’s first issue on appeal, we reverse the district court’s

judgment and render summary judgment declaring that TMB’s pronouncements regarding

Rule 190.8(1)(L)(i)(II) contained in its June 2011 letter are a “rule” under the APA and, therefore,

invalid under section 2001.035 of that Act.



                                               __________________________________________
                                               Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Reversed and Rendered

Filed: December 31, 2014




       73
            See Tex. R. App. P. 47.1.

                                                  29
