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Legal Research 101: Class Ten
By Joan Olson, CLA, MACP Parliamentarian

Summer 2003
Jul 1, 2003

Reprinted with permission of the National Notary Association. Founded in 1957, the NNA is the primary source for Notary education, service and advocacy in the United States, and is the largest and oldest organization of its kind. Based in Chatsworth, California, with state offices in Florida and Texas, the NNA serves more than 200,000 members nationwide. For more information, contact the NNA at (800) 876-6827 or online at www.nationalnotary.org.
Administrative Law

In order to effectively research administrative law, a researcher must understand how administrative agencies were created, the type of agency and how they function. Therefore, this article will briefly describe these characteristics at the same time explain where administrative law is located and how to research it.
An administrative agency is a governmental unit charged with the responsibility to, among other things, implement and administer statutes adopted by a legislative body. Some consider administrative agencies the fourth branch of government. They are largely under control of the executive branch, although they are created and given its powers by Congress through the enabling act.

TYPES OF ADMINISTRATIVE AGENCIES:

1. Regulatory—given comprehensive authority to oversee a wide spectrum of economic activities of a specific industry; i.e. Security Exchange Commission (SEC).

2. Non-Regulatory—typically function to dispense of money or promote social and economic welfare; i.e. Veterans Administration (VA) or Social Security Administration (SS).

CLASSIFICATIONS OF AGENCIES:

1. Independent—created by Congress. Usually commissions; i.e. the Federal Trade Commission (FTC).

2. Executive—units within executive branch. Appointed individuals; i.e. IRS.

ROLES OF ADMINISTRATIVE AGENCIES:

1) Investigation
2) Rulemaking
3) Adjudication

1) INVESTIGATION POWERS
• Agencies use this power to compile and disseminate information, which is used in rulemaking or adjudication decisions.
• They may have the power to subpoena documents, compile depositions and inspect premises.

2) RULEMAKING POWER—Quasi-legislative power
• Agencies have the authority to adopt rules and regulations, but this authority is limited to those powers specified in the agency’s enabling act.
• All agency law must serve the function of clarification or enforcement.
• ALL regulations must be derivative of legislation formerly enacted. Administrative law explains, clarifies and implements statutory law.

Enabling acts will dictate the following steps that an agency must follow when promulgating (establishing) and publishing regulations in the Federal Register or Texas Register:

1. Notification—in the Federal Register or Texas Register
2. Public Hearing
3. Issuance of Final Rule.

Federal Register or Texas Register
• The registers print the official actions of all administrative agencies.
• Record all stages of a regulation, from proposal to approval.
• Registers are set up in chronological order; therefore, you must know the exact citation or date of publication and the name of the agency.

The Federal Register is printed daily.
The Texas Register is printed semi-weekly.

Code of Federal Regulation or Texas Administrative Code (Adopted Regulations)
• Once a regulation is adopted it is either codified in the Code of Federal Regulation (CFR) or Texas Administrative Code.
• They are set up in the same manner as statutes. They are grouped together by agency and then by subject matter.
• The Code of Federal Regulations (CFR) is revised quarterly by title, but each title is only updated on an annual basis. Therefore, Title 1 will most likely bear a different publication date then Title 49.

CFR and Texas Administrative Code are separated into units such as:
Title
Chapter
Subchapter
Parts
Sections

Research of Regulations
Legal research for regulations is conducted in the same manner as statutes—

1. Title Outline Approach—if you know the title containing the regulation, discovering the exact section can be done by consulting the front of the volume. You can locate the section by reviewing the chapters, subchapters and section numbers.

2. Index Approach—the researcher can search for the appropriate regulation by using common terms in the general indexes or volume indexes. Regulations are more detailed and technical than the corresponding statute, but they are indexed less specifically. Recommendation: Use broader terms.

3. Statute Approach—search for the statute because agencies can not promulgate regulations without express authority from Congress or the state legislature (which comes in the form of statutes). Then use the cross-references.

• Sometimes regulations have the same title number as the statute. You will find this more on the federal level than here in Texas.

Updates To Federal Regulations

A) The Federal Register’s LPA (List of Parts Affected) accumulates each day; therefore, you will only need to consult the last day of each month and then the last day of the month you are in.

B) The List of CFR Sections Affected (LSA) is another tool to use when searching through the CFR.
• This is a monthly update of all the federal regulations that have been changed, cancelled or added since the last CFR publication.
• LSA is grouped by title then subcategories and then specific sections.
• To research the LSA first consult the beginning of the CFR volume to determine when it’s coverage ended then find the most recent LSA and compare.

LSA is synonymous with the pocket part for statutes. Texas uses supplements to update regulations.

NEVER FORGET TO CHECK THE LSA, SUPPLEMENTS OR POCKET PARTS.

3) ADJUDICATION POWER—Quasi -judicial power
• Agencies have the power to make decisions, which have nearly the same force of law as decisions of a court.
• Agencies have administrative law judges (ALJ) which will hear only those cases involving the conduct of administrative agencies and the effects of that conduct on the individual or entity that challenges the agency action.
• Rules of evidence are different for administrative agencies. An agency may rely on hearsay evidence.
• When a party is found to be in violation of a regulation, the agency may impose sanctions—i.e. fines or cease & desist. However, no administrative sanction can include imprisonment.
• Juries are not authorized in the structure of administrative agencies.
• You can locate judicial opinions, which have cited regulations in C.F.R. Shepard’s Citator.

PLEASE NOTE: YOU MUST EXHAUST ALL ADMINISTRATIVE REMEDIES BEFORE SEEKING OFFICIAL JUDICIAL INTERVENTION. ONCE YOU HAVE GONE THROUGH ALL THE NECESSARY LEVELS AND STEPS WITHIN THE AGENCY YOU MAY FILE WITH A TRIAL COURT.

THE 3 BRANCHES OF GOVERNMENT OVERSIGHT OF
ADMINISTRATIVE AGENCIES.

1) Executive branch—power to appoint and remove heads of executive agencies. President or Governor also appoints commissioners who head independent agencies, subject to confirmation by the Senate. He does not have power to remove a commissioner, usually the commissioner has a term.

2) Legislative branch—creates the agency and has power to eliminate it. They can expand or restrict the powers of the agency. One popular method used, mostly now by states, is the Sunset Law, which when appended to an agency’s enabling act, the agency would cease to exist after a period of time unless Congress re-enacted its statutory authority.

3) Judicial branch—judicial oversight consists of judicial review to determine the validity of an agency’s actions.

Safeguards have also been created to make sure that administrative agencies have not been delegated too much power. These safeguards are:

1. Delegation Doctrine—a judicially enforced principle, which reflects the type and degree of legislative power that Congress may delegate.

2. Administrative Procedure Act (APA)—part of the system of safeguards or controls against abuses of power by an administrative agency. This act controls much of the administrative process through establishing the procedures that the agency must follow.

3. Enabling Act—creates the agency and specifies the agency’s structure, functions, powers and operational standards, and it sets out the substantive rules of law the agency must carry out.

CITATIONS

FEDERAL

The components of a Code of Federal Regulations citation are:

• the title (chapter) number;
• abbreviation for Code Of Federal Regulations (C.F.R.)
• section symbol and the section number; and
• year of publication.

22 C.F.R. § 145.6 (1995)

The components of a Federal Register citation are:

• volume number of Fed.Reg. (volume number changes each calendar year):
• abbreviation for Federal Register (Fed. Reg.);
• page number where administrative rule begins; and
• year of publication.

48 Fed. Reg. 37,315 (1983)

STATE

The components of a Texas Administrative Code citation are:

• the title number;
• abbreviation for the Texas Administrative Code (Tex. Admin. Code);
• section symbol and the section number;
• publisher and the year of publication.
(optional to put name of agency)
25 Tex. Admin. Code § 119.3 (West 1996) (Tex. Dept. of Health)

The components of a Texas Register citation are:

• volume number of the Texas Register;
• abbreviation for the Texas Register (Tex. Reg.);
• page number at which the rule begins;
• year of publication.
• the Tex. Admin. Code citation alongwith a notation indicating whether the proposed rule is new or an amendment.

(optional)
21 Tex. Reg. 2353 (1996) (prop. amend. to 16 Tex. Admin. Code § 9.2) (Tex. R.R. Comm’n)

Texas Paralegal Journal © Copyright 2003 by the Legal Assistants Division, State Bar of Texas.

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