Overview
Vinson & Elkins has a broad practice in Texas administrative and regulatory law that involves a wide variety of activities subject to regulation by administrative agencies of the State of Texas. Our state regulatory lawyers, who have wide-ranging experience with various regulatory regimes and state agencies, litigation in administrative and judicial forums, legislative drafting and advocacy, licensing and permitting, and structuring and negotiation of business transactions, are equipped to assist our clients in developing comprehensive strategies and solutions for doing business in an environment of complex and overlapping state regulation.
Discrete practice groups within Vinson & Elkins focus on areas such as environmental law, energy regulation, and the health industry. Our state regulatory law practice encompasses governmental regulation in many other areas, including: insurance; oil and gas; health care and managed care; pharmaceuticals; alcoholic beverage sales, permitting, and regulation; motor vehicle sales and franchising; public utilities; agency rule challenges; open records (public access to government information) and open meetings by governmental bodies; government procurement and contracting; professional licensing and regulation; marketing and advertising practices and consumer protection laws; e-regulation; and disability access construction standards. Vinson & Elkins’ state administrative law practice is based with lawyers in the firm’s Austin office, who work with Vinson & Elkins lawyers in other firm offices and across many firm practice areas to provide needed state regulatory expertise and experience for the firm’s clients.
Practice Areas
The following descriptions of representative work in a number of areas give a sense of the range and depth of our experience in Texas administrative law.
Insurance
The firm's administrative lawyers have frequently represented one of the largest property and casualty insurers in the U.S. over more than a decade, in a wide array of Texas regulatory matters. We also represent insurers who write life and health, mortgage guaranty, workers compensation, general liability insurance, and warranty/guaranty coverages; and insurance agencies, agents, and brokers. We work closely with the firm’s insurance coverage and insurance litigation lawyers to provide comprehensive expertise and support on insurance statutes and regulations raised in lawsuits. The following list highlights some of the firm’s insurance regulatory client representations:
- Representing insurer parties in annual multi-party contested rate cases before the Texas Department of Insurance (TDI) and the State Office of Administrative Hearings (SOAH) to set industry-wide auto benchmark rates
- For lead plaintiff insurance companies, prosecuted declaratory judgment actions against the Texas Department of Insurance and the Attorney General of Texas to prevent public release of proprietary, trade secret statistical data reported by auto and property insurers to TDI, resulting in protection of confidentiality of the periodic reports and judicial invalidation of two TDI rules
- Class action growing out of a Texas Attorney General investigation into auto insurer claim reimbursement practices under a state statute on recovery of deductibles, in which we obtained summary judgment on pivotal statutory construction issues
- Defended and negotiated favorable no-penalty settlement on behalf of a national life insurance company in an administrative investigation and enforcement action alleging false advertising and deceptive marketing practices in connection with sale of annuity life insurance policies
- Obtained exemption for mortgage guaranty insurers from Insurance Holding Company Act requirement to obtain prior TDI approval for change of ownership of affiliated company
- Participated in legislative drafting working group at invitation of state legislator, on behalf of property/casualty insurer client, to prepare amendments to auto and property insurance rate statutes, which were enacted as proposed
- Petitioned TDI on behalf of homeowners insurer for exemptions from promulgated residential property statistical data reporting plan, and negotiated alternative reporting methodology with TDI and TDI’s statistical agent
- Represented insurer seeking administrative approval of contested prior-approval auto insurance rate filings
- Averted initiation of enforcement action by TDI against insurer, through briefing and response to complaint petition filed by consumer advocate alleging misreporting of statistical data affecting promulgated rates for assigned risk auto insurance
- Assisted California-based company in forming and obtaining required licenses for non-resident insurance agency doing business in Texas
- In a transaction involving sale of a licensed Texas insurance agency, provided advice to seller regarding necessary regulatory filings and approvals of ownership transfer
- Obtained offset and recovery, for auto insurer, of substantial state assessments paid to Auto Theft Prevention Authority and State Comptroller, through petitions to agencies and legislative initiative resulting in amendment of applicable statute
- Successfully challenged newly adopted TDI “anti-discrimination” rule in declaratory judgment action brought in state court on behalf of affected property/casualty insurers, obtaining judicial invalidation of the rule
- Assisted in the structuring, formation, and licensing of insurance agencies associated with hospitals and securities brokerage firms
- Advised hospital equipment service and guaranty provider regarding applicability of insurance licensing and regulatory requirements and related program structuring questions
- Reviewed and provided advice on disclosure information regarding insurance regulatory issues for offering circular relating to spinoff by large corporation of insurance company subsidiaries
- Provided analysis to large electric utility on self-insurance of business auto fleet under mandatory auto liability coverage requirements of Texas law
- Work with Vinson & Elkins litigation teams to provide support, briefing, and analysis of insurance statutes and regulations in defending class actions and other major litigation against insurers
Oil and Gas
Vinson & Elkins administrative lawyers represent natural gas producers, interstate and intrastate pipelines, oil transporters, and other segments of the oil and gas industry before the Railroad Commission, the General Land Office, and the State Comptroller. Our state energy regulatory practice includes counseling in regulatory compliance, licensing and authorization applications, defense of enforcement actions, judicial appeals of agency orders, and judicial challenges to agency rules and actions. Representative matters include:
- Railroad Commission counsel for various natural gas pipeline and underground gas storage facility operators
- Represented a natural gas utility in obtaining authority to operate a depleted gas reservoir as a natural gas storage facility, including authority to condemn all necessary interests
- Represented a natural gas transmission company in successfully overturning a ten year old tight sands designation, saving the client in excess of $60 million
- Regularly advise numerous natural gas pipeline companies on the regulatory implications of planned mergers, acquisitions, or corporate restructurings
- Advise oil and gas producers and pipeline companies on regulatory issues associated with ongoing litigation
- Represented an oil and gas producer in major lawsuit successfully challenging the General Land Office’s position that it could internally adjudicate its own claims for additional royalties against lessees of state minerals
- Represent land developers in contested case proceedings before the Railroad Commission involving efforts to designate operations sites on property being prepared for commercial development
- Advise lenders regarding the regulatory issues raised by borrowers’ proposed oil and gas operations
- Represent oil and gas producers before the Railroad Commission in contested spacing and density proceedings
- Advise operators of some of the state’s largest oil gathering systems on regulatory issues, including necessary filings triggered by acquisitions, sales, or abandonments
- Represent natural gas pipeline companies, oil pipeline companies, and oil and gas producers in enforcement proceedings before the Railroad Commission
Health Care and Managed Care
Our state regulatory attorneys work closely with attorneys in the firm’s Health Industry practice group to serve firm clients in the health care and managed care industries. We have substantial and varied experience with the various Texas statutes and agencies that regulate the provision of health care and health care coverage and reimbursement, which often involve complex federal-state programs and tiered regulatory regimes. The following highlights some of the matters we have handled for clients in the health care and managed care industries:
- Sued the state officials and agencies that administer the Texas Medicaid program on behalf of a public hospital, to challenge agency allocation of required Medicaid reimbursement to teaching hospitals for the costs graduate medical education
- Represented a hospital in a successful challenge to the Texas Department of Health’s method for determining eligibility for Disproportionate Share Medicaid funds and acquired a settlement for past missed payments
- Represented a health care provider in obtaining full recovery of deficiencies in Texas Department of Health payments, using the administrative adjudicatory process for pursuing contract claims against state agencies
- Counsel drug manufacturers on issues related to the reporting of wholesale drug prices to the Texas Health and Human Services Commission and related Medicaid claim reimbursement issues
- Counseled a statutorily created nonprofit health insurance corporation through the process of dissolution
- Provide counsel and representation to health care providers in disputes over proper government reimbursement for treatment of Medicaid patients
- Assisted HMO, health care management company, and related physician organizations in legal matters related to financial oversight and supervision by Texas Department of Insurance, including required regulatory filings and rehabilitation plans and conferences with regulators
- Represent a community health care facility in efforts to refinance or renegotiate the terms of an outstanding Department of Agriculture loan obtained to finance construction of the facility, including discussions with agency and possible legislative solutions
- Provided advice to a business asked to be a grantor and participant in a local outreach program to enroll children in federal/state-funded State Children’s Health Insurance Program, regarding program requirements and applicable laws and regulations
- In connection with corporate mergers and acquisitions involving hospital systems and health-care-provider-owned HMOs, assisted clients in making “Form A” filings with Texas Department of Insurance to obtain required prior regulatory approval of change of control and transfer of ownership of HMOs
- Represented third party administrators and utilization review agents in Texas Department of Insurance inquiries and enforcement actions
- Obtained certificates of authority for a newly created HMO to do business in Texas, Oklahoma and Louisiana, involving extensive regulatory filings and review in all three states
- Represented HMOs in enforcement actions growing out of audits and examinations by Texas Department of Insurance, including negotiation of settlements and consent orders
- Participated in state agency rulemaking proceedings to implement new federal health care privacy laws; prepared material for advising clients on compliance with new requirements
Pharmaceuticals
Our attorneys have developed expertise in issues regarding prescription drug dispensing, pricing, price reporting, drug approval, marketing, and reimbursement under the complex web of state and federal laws and regulations that apply to the manufacture and sale of pharmaceutical products. Our experience in this area includes:
- Represented a generic drug manufacturer in successfully enjoining and invalidating rules adopted by the Texas State Board of Pharmacy that would have inhibited pharmacists’ ability to refill prescriptions using lower-cost generics instead of equivalent brand products
- Inform and advise pharmaceutical industry clients regarding regulatory compliance issues, rulemaking proceedings, and legal developments relating to drug formulary filings and reporting of drug prices under state and federal health care coverage programs
- Represented a major retail chain in repermitting by the Board of Pharmacy required as a result of corporate restructuring
- Represented pharmaceutical industry client in connection with civil investigative demand from Attorney General of Texas
Alcoholic Beverage Sales Permitting and Regulation
Alcoholic beverage sales in Texas are intensely regulated by the State, which imposes complex restrictions on the place and manner of alcohol sales, as well as on the structure and ownership of businesses with alcoholic beverage permits or licenses. Vinson & Elkins' regulatory lawyers represent a number of alcoholic beverage manufacturers and retailers in regulatory matters. Our representation includes:
- Represented major retail grocery chain in corporate restructuring that required repermitting of 300 outlets for alcoholic beverage sales
- Provide Texas Alcoholic Beverage Commission compliance counseling and representation to a major brewer
- Negotiated with the Texas Alcoholic Beverage Commission on behalf of a major grocery store chain to allow the online sale of groceries, including alcoholic beverages
- Provide counsel and representation to a professional sports team and arena owner regarding alcoholic beverage sale licensing
- Represented a country club in a Texas Alcoholic Beverage Commission inquiry into activities related to a holiday golf tournament
- Provided counseling on alcoholic beverage sale and warehousing restrictions to an internet retailer
- Provide counsel and representation to a collection of California wineries regarding Texas importation, distribution, and retail sale issues
Motor Vehicle Sales and Franchising
Our regulatory attorneys have appeared before the Motor Vehicle Board of the Texas Department of Transportation on various matters involving motor vehicle sales and dealership franchising laws and regulations. Client representations in such matters have included:
- Represented a motor vehicle manufacturer in overturning a negative enforcement order issued by the Motor Vehicle Board and limiting the authority of the Board to adjudicate disputes between manufacturers and franchised dealers
- Represented manufacturers in disputes before the Motor Vehicle Board regarding relocation of dealerships
- Represented a group of motor vehicle dealers in a major enforcement action against a manufacturer based on allegations of unauthorized internet-based sales of motor vehicles
- Provide counseling and representation to a bus manufacturer regarding restrictions on sales in Texas of motor vehicles by manufacturers
- Represented a consortium of motor vehicle dealers seeking dissolution of a stay order issued by the Motor Vehicle Board in response to a complaint filed by a manufacturer regarding the transfer of ownership of a franchise
- Represented a major heavy-equipment dealer in renewing Texas dealer licenses in conjunction with a corporate reorganization
Public Utilities
Vinson & Elkins appears before the Public Utility Commission of Texas, the Texas Commission on Environmental Quality, and other state commissions on public utility regulatory matters affecting our clients in the telecommunications, water utility, and electric utility businesses. Our public utility regulatory experience, including the process of deregulation of the electric and telecommunications industries in Texas, provide an important component in Vinson & Elkins’ ability to assist power supply and public utility businesses in corporate transactions, such as the negotiation and drafting of supply, purchase and agreements; development of power generation facilities and distribution infrastructure; and the outsourcing of utility services. The following list highlights the experience of our attorneys in the area of public utility regulation:
- Served as the lead regulatory attorneys for all nuclear-related matters for a major Texas retail electric utility in rate proceedings before the Texas Public Utility Commission
- Assisted a large Texas retail electric utility in proceedings before the PUC regarding the payment of franchise fees to municipalities within the utility's service territory
- Assisted numerous competitive local exchange carriers and wireless providers in negotiating and gaining approval of proposed interconnection agreements
- Recently assisted a large river authority before the Texas PUC in transitioning its hydroelectric operations to a deregulated environment and negotiating the sale of renewable energy credits produced by the facilities
- Represented developers of multiple independent power projects on Texas regulatory issues and related transactional matters
- Participated in numerous rulemaking proceedings on behalf of a competitive local exchange provider on affiliate relationships, caller ID services and other matters involving deregulation of the telecommunications industry in Texas
- Successfully represented several wireless carriers in PUC matters involving area code relief implementation and other numbering issues
- Successfully defended a major interexchange carrier against complaints of anti-competitive behavior by another carrier
- Assisted numerous commercial consumers of electricity in legal matters related to procuring long term supplies of electricity from retail electric providers at substantial savings as a result of the deregulation of the electric industry in Texas
- Assisted the developer of an independent power project in negotiating the sale of an interconnection line to a transmission and distribution utility and with related regulatory issues
- Assisted an owner of numerous multi-tenant properties in Texas with a long-term purchase agreement for all of the common area facilities and in becoming an aggregator on behalf of its individual tenant loads
- Advised the underwriter of the transition bonds issued by a major Texas electric utility on numerous Texas PUC issues
- Advised wind turbine electricity generator regarding federal spacing, lighting and marking requirements for turbine structures
- Represented an advanced data company in a telecommunications interconnection arbitration overseen by the PUC
- Advised water authority regarding applicable regulatory requirements for maintaining unused water canals and ditches
- Represent a water authority in ratepayer challenges to water rates
Rule Challenges
Under a Texas law that allows a party adversely affected by a state agency rule to seek a declaratory judgment on the rule’s validity or applicability, Vinson & Elkins’ administrative lawyers and litigators have, as needed, obtained judicial relief for our clients from certain regulations of state administrative agencies, and assisted in defending rules that our clients support against such challenges. Agency rule challenges in which our lawyers have been involved include:
- Obtained suspension and judicial invalidation of a rule adopted by the Texas State Board of Pharmacy that would have erected new barriers to pharmacists’ ability to provide less costly generic products in refilling prescriptions for certain drugs
- In a lawsuit challenging Attorney General rulings and Texas Department of Insurance practices on open records and trade secrets, obtained summary judgments invalidating two longstanding rules of the agency, which were held to exceed TDI’s delegated authority and contravene applicable open records statutes
- Challenged the constitutionality of rules of the General Land Office for internally adjudicating royalty deficiency claims under oil and gas leases on state-owned land, obtaining a favorable ruling from the appeals court enjoining interim enforcement of the rules and ultimately striking them down as unconstitutional, which was upheld by the Texas Supreme Court
- On behalf of an association of equipment manufacturers, challenged rules of the Texas Natural Resource Conservation Commission regulating emissions from small motors and, by asserting claims demonstrating that the agency failed to take into account statutorily prescribed factors, convinced the TNRCC to withdraw the rules and go back to the drawing board rather than attempt to defend the flawed rules
- Sued the state officials and agencies that administer the Texas Medicaid program on behalf of a public teaching hospital, to challenge administrative rules under which agency allocates required Medicaid reimbursement for the costs of graduate medical education
- Sued the Texas Department of Health on behalf of a hospital that serves a large indigent population, over the agency’s method for determining hospital eligibility for special Medicaid funds, resulting in quick agreement by the Department to change its calculation method prospectively, and ultimate settlement on the issue of the hospital’s entitlement to missed past payments
- In a judicial rule challenge that took less than six weeks from start to finish, proved the invalidity of a Texas Department of Insurance rule purporting to define and prohibit “unfair discrimination” by insurers, and obtained a final judgment in the trial court that TDI did not appeal
Open Records/Open Meetings
Vinson & Elkins has broad experience with “open government” laws. The Texas Public Information Act gives a broad right of access to state government information, but excepts from required disclosure confidential and private information of many types. We assist clients that are governmental bodies in complying with the Act, aiding them in promptly and properly responding to information requests, and obtaining required authorization to withhold information excepted from disclosure. We assist business clients in protecting from inappropriate public release proprietary, confidential information they are required to file with governmental bodies. We also assist our clients in obtaining access to public information they may need from governmental bodies that are subject to the Act.
Our lawyers also assist many governmental bodies in complying with the Texas Open Meetings Act, which requires public notice of and public access to the deliberations of governmental bodies, and we have defended governmental bodies accused of violating open meetings laws. Representative matters we have handled involving open government laws include:
- Assisted entities that invest public funds in various issues relating to legal compliance with the Public Information Act
- Provided ongoing support to a variety of small political subdivisions on open records and open meetings issues, providing advice on open government requirements and support for publishing required notices and meeting response deadlines
- Prosecuted declaratory judgment actions on behalf of auto and property insurers and their trade associations, preventing disclosure under the PIA by the Texas Department of Insurance of proprietary, trade secret insurance statistical data reported to the Texas Department of Insurance
- Submitted numerous open records briefs to the Attorney General, on behalf of both governmental bodies subject to the PIA and private-sector clients who report proprietary or confidential information to such bodies, to obtain Attorney General decisions allowing or requiring the agency to protect the confidentiality of information excepted from public disclosure requirements, including trade secrets and confidential commercial and financial information; medical and patient records; attorney-client privileged information; and personal information on agency employees
- Brought suit on behalf of a governmental body to challenge an Attorney General open records decision ordering the entity to disclose privileged attorney-client communications and attorney work product in response to a public information request from a party involved in a contractual dispute with the entity
Government Procurement and Contracting
Our attorneys have strong experience in the special issues that arise in connection with proposal requests, bidding, and contracting involving governmental entities. We have experience with a wide variety of government procurement projects, from small contracts to contracts involving hundreds of millions of dollars. Our practice addresses the various state laws governing those contracts, the process by which such contracts are entered, and the remedies for disputes thereunder. Following are examples of matters in this area that our attorneys have handled:
- Represented a mailing equipment manufacturer in obtaining reversal of a decision by the Texas Council on Purchasing from People with Disabilities on preferences for purposes of state purchasing and lease contracts
- Acted as special counsel to a Texas government agency in the drafting and negotiating of a contract for services valued at over $100 million annually
- Represented a bus manufacturer in the renegotiation of the terms of a contract for the manufacture and delivery of buses to a Texas municipal transit authority
- Represented a nonprofit organization in the negotiation of a new contract with the Texas Parks and Wildlife Department for the operation of a facility within a state park
- Provided pro bono representation to a nonprofit, community-based nursing home facility in seeking refinancing of a high-interest community facility loan from the U.S. Department of Agriculture
- Represented the successful bidder in a contract with the Texas Education Agency for software consulting, when the contract award was challenged in court by the unsuccessful bidder
Professional Licensing and Regulation
Our regulatory attorneys have represented members of various professions – engineering, medicine, nursing, law, veterinary medicine, chiropractic, counseling and social work, architecture and interior design, cosmetology, heating and air conditioning contracting, accounting – and the businesses that employ them, in various matters before professional licensing boards and regulatory agencies. Matters of professional licensing and discipline, unauthorized practice, professional practice standards, and other licensing or permitting matters in which we have represented clients include:
- Provided legal counsel regarding the re-permitting and notification required by approximately 75 federal, state, and local governmental agencies, including health and pharmaceutical agencies, for a major grocery store chain with more than 300 outlets in Texas and Louisiana, when the company underwent a corporate reorganization
- Obtained approval from the Texas Education Agency for the first take-home, interactive driver safety course authorized for use in obtaining a reduction in insurance rates or the dismissal of a moving violation
- Represented the employer in acquiring settlement of an enforcement action brought by the Texas Board of Professional Engineers alleging performance of professional engineering tasks by an employee not licensed in Texas
- Provided counsel and representation to physicians in matters related to the preservation of professional licensing before the Texas State Board of Medical Examiners
- Represented a nationwide provider of home services in an enforcement action brought by the Texas Department of Licensing and Regulation regarding licensing issues related to internet marketing of heating and air conditioning maintenance and repair services
- Represented a defective-building-material claims service in connection with inquiry by the Unauthorized Practice of Law Committee of the Texas Supreme Court regarding services offered by the company
- Obtained reinstatement of an engineer’s professional license from the Texas Board of Professional Engineers, after license suspension by the Board
- Obtained dismissal of a complaint and enforcement action before the Texas Board of Veterinary Medical Examiners against a large-animal veterinarian relating to surgery performed on a horse
- Represented optometrists in enforcement actions before the Texas Optometry Board
- Represented accounting firms in enforcement actions brought by the State Board of Public Accountancy
- Represented owner/operator of childcare center in license revocation proceedings before the Texas Department of Protective and Regulatory Services
- Provided compliance counseling regarding the professional restrictions and licensing requirements imposed on interior designers by the Texas Board of Architectural Examiners
- Provided compliance counseling regarding regulations of the Texas Commission on Private Security governing the installation and monitoring of security alarms
- Represented a national photographic studio chain in negotiation with the Texas Cosmetology Commission over licensing and facility requirements
- Represented a nursing association and a registered nurse employee in defending a disciplinary action arising from a complaint filed with the Board of Nurse Examiners
- Advised an employee assistance program provider regarding state professional licensing and practice standards applicable to professional employees providing telephone counseling and mental health services to companies with employees in multiple states
- Obtained confirmation from Texas Department of Licensing and Regulation of statutory exemption from state licensing requirements, for staff leasing company created by client in corporate reorganization
- Obtained an investigations company license from the Texas Commission on Private Security for a nationwide “heir finding” service
- Represented a licensed chiropractor in efforts to prevent negative professional consequences of investigation by the Texas Board of Chiropractic Examiners
Marketing and Advertising Practices/Consumer Protection
State statutes and regulations that prohibit “deceptive trade practices” and govern marketing and advertising by regulated businesses impose legal duties on many who offer and sell products or services to consumers. Our regulatory attorneys have participated in a wide range of matters affected by consumer protection laws, and by advertising and marketing practice restrictions that are business-specific. The following list highlights the range of experience of our attorneys in this area:
- Represented life insurer in responding to agency subpoena and inquiry, and negotiated a no-penalty settlement of an enforcement action by Texas Department of Insurance regarding advertising in the sale of life insurance policies
- Obtained dismissal of a complaint and enforcement action against an optometry chain brought by the Texas Optometry Board alleging misleading advertising
- Obtained dismissal of a complaint brought before the Texas Education Agency against a technical school for allegedly failing to provide the training promised to enrollees
- Advised an equipment manufacturer in legal matters related to structuring and implementing a successful customer notice and product replacement program for consumer products discovered to have been misdescribed in marketing materials
- Assisted a pet food manufacturer in negotiations with the Texas Feed and Fertilizer Control Service regarding the labeling of a new line of dog food
- Assisted a pet food manufacturer in developing a response plan to an accidental contamination of pet food distributed to numerous retail outlets
- Negotiated settlement of an enforcement action brought against a sporting goods store by the Texas Department of Agriculture for scanning errors resulting in mispricing of items at the cash register
e-Regulation
Vinson & Elkins regulatory lawyers, frequently working with V&E; corporate lawyers and members of our Internet/e-Commerce practice group, assist firm clients who engage in e-Commerce in dealing with the application and evolution of yesterday’s regulatory principles to tomorrow’s technology. e-Commerce-related regulatory matters we have handled include:
- Negotiated resolution and dismissal of an enforcement action brought by the Texas Department of Licensing and Regulation against a nationwide provider of home services related to website marketing of heating and air conditioning maintenance and repair services to Texas consumers
- Advised a major grocery store chain on the regulatory implications of selling groceries, including alcoholic beverages and tobacco online
- Assisted a major technology-consulting firm in implementing a statewide internet portal under contract with a government agency
- Advised an online residential and commercial security service on implementing its service in compliance with approximately 30 states’ laws governing security systems, many of which were written long before online security monitoring and alarm services were available or imaginable
Disability Access Standards
Construction and reconstruction of business, commercial, and industrial facilities and sites is subject to overlapping federal and state regulatory regimes (under the federal Americans with Disabilities Act and the Texas Architectural Barriers Act) that prescribe numerous requirements and building standards to address the accessibility of facilities to people with disabilities. The following list of matters highlights the range of experience of our attorneys in this area:
- Represented an equipment manufacturer and manufacturers’ trade association in connection with enforcement actions initiated by the Texas Department of Licensing and Regulation seeking to apply disability access equipment design requirements retroactively; negotiated an enforcement suspension and prospective redesign and compliance plan
- Represented a private high school campus in a TDLR enforcement action regarding disability access to a newly constructed sports stadium
- Advised multi-family residential housing development company regarding applicability of disability access standards to university student housing
- Consulted with city manager regarding remedies for noncompliance of city-built fire station with applicable disability access building standards
Practice Strengths
The firm's state regulatory practice takes many forms. In the various substantive areas in which we practice, our attorneys are qualified to represent our clients in a variety of ways:
- Agency subpoenas, investigations, audits, examinations. State agencies in Texas have extensive powers of investigation and examination of entities subject to regulation. We regularly assist clients in responding to – or challenging – civil investigative demands from the Attorney General, and subpoenas and other inquiries from the Department of Insurance, the Department of Health, the Railroad Commission and several other agencies.
- AG Opinions. Occasionally, the most efficient way to resolve a dispute about agency authority or the intended meaning or scope of a state statute is to seek the legal opinion of the Attorney General of Texas, who is required to issue such opinions when requested to do so by public officials or legislative committees. Our attorneys are experienced in preparing requests for Attorney General opinions and submitting legal briefs and arguments to the Attorney General on behalf of clients who may be affected by such opinions.
- Administrative litigation and enforcement proceedings. The firm's regulatory attorneys conduct administrative litigation on behalf of firm clients before various state regulatory agencies, including hearings over which administrative law judges in the State Office of Administrative Hearings preside. We have represented parties in matters ranging from insurance rate cases involving industry-wide promulgated rates to contested oil and gas well spacing exceptions.
- Courtroom Litigation. Complex regulatory litigation in state court is an important component of our administrative law practice, where regulatory matters become, by choice or necessity, lawsuits. The suits are, most often, either declaratory judgment actions in which the court determines the validity or applicability of an agency rule, or substantial evidence reviews by the state district court of agency decisions in contested cases. Firm attorneys also handle appeals generated by administrative litigation in state court on behalf of the firm's clients, most frequently to the Austin Court of Appeals involving decisions of Texas regulatory agencies.
- Rulemaking. Participation in agency rulemaking proceedings can be an important, though often neglected, means for a regulated entity to influence the regulatory environment in which it operates. Our attorneys represent clients in this way in areas ranging from insurance to oil and gas to state procurement.
- Legislative Drafting and Advocacy. Comprehensive solutions to regulatory problems often involve legislative initiatives. We work frequently with the lawyers and lobbyists in our legislative practice group to work toward legislative solutions to our client’s problems, often working with affected regulatory agencies to address matters pertaining to statutory language, educating legislators on the issues, and other matters relating to passage of new statutes or statutory amendments.
- Regulatory filings and applications. Regulatory filings and applications are often complex, and preparing and filing them correctly can be critical to timely realization of client goals, whether those goals are regulatory approvals, issuance of licenses or permits, securing of a government contract, or avoidance of penalty actions. Our lawyers regularly assist in the preparation of applications for certificates of authority and licenses for HMOs, physician service organizations and insurance agencies. We have also assisted clients in the preparation and prosecution of applications for regulatory authorizations and exemption, including: approval of insurance rating manuals and discounts; alcoholic beverage permits, and authority to operate natural gas or crude oil pipelines or natural gas storage facilities.
- Transaction-related advice. The firm's regulatory attorneys work with firm attorneys in other practice areas, such as the Corporate and the Business/International groups, to represent clients in transactions that require regulatory approval or exemption. We bring our experience and skill to bear in assisting with the structuring of transactions from a regulatory perspective, in performing regulatory due diligence, and in obtaining regulatory approvals.
- Regulatory counseling. As firm clients face the complex landscape of overlapping and sometimes conflicting requirements imposed by state regulators, we provide compliance advice and regulatory counseling. We have advised many clients whose business plans and activities were affected by state statutory regimes and regulatory authorities, such as the Texas Department of Insurance, the Texas Railroad Commission, the Alcoholic Beverage Commission, and under many, many statutes, new and existing, including the Gas Utility Regulatory Act, the Insurance Holding Company Act, the HMO Act, Auto Theft Prevention Authority Act, and the Architectural Barriers Act.
State Agencies
Following is a partial list of Texas administrative agencies involved in matters our administrative attorneys have handled:
Attorney General of Texas
Auto Theft Prevention Authority
Board of Nurse Examiners for the State of Texas
Comptroller of Public Accounts
Council on Purchasing from People with Disabilities
General Land Office
Interagency Council on Pharmaceuticals Bulk Purchasing
Motor Vehicle Board of Texas Department of Transportation
National Association of Insurance Commissioners
Public Utility Commission of Texas
Railroad Commission of Texas
State Board of Education
State Securities Board
Texas Alcoholic Beverage Commission
Texas Board of Architectural Examiners
Texas Board of Chiropractic Examiners
Texas Board of Professional Engineers
Texas Board of Veterinary Medical Examiners
Texas Commission on Environmental Quality
Texas Commission on Private Security
Texas Cosmetology Commission
Texas Department of Agriculture
Texas Department of Licensing and Regulation
Texas Department of Health
Texas Department of Information Resources
Texas Department of Insurance
Texas Department of Licensing and Regulation
Texas Department of Protective and Regulatory Services
Texas Department of Transportation
Texas Education Agency
Texas Ethics Commission
Texas Feed and Fertilizer Control Service
Texas Health and Human Services Commission
Texas Lottery Commission
Texas Optometry Board
Texas Parks and Wildlife Department
Texas State Board of Medical Examiners
Texas State Board of Pharmacy
Texas State Board of Public Accountancy
Texas Workers’ Compensation Commission
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