TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00178-CV

Zimmer US, Inc., Appellant

v.

Susan Combs, Comptroller of Public Accounts of the State of Texas; and

Greg Abbott, Attorney General of the State of Texas, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. D-1-GN-09-002096, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

I concur in the majority's judgment.  I agree that the district court's judgment must be reversed because it is predicated upon an administrative construction of rule 3.284 that is inconsistent with the rule's text.  See 34 Tex. Admin. Code § 3.284 (2011) (Tex. Comptroller of Pub. Accounts, Drugs Medicines, Medical Equipment, and Devices (Tax Code § 151.313)); Texas Indus. Energy Consumers v. Center Point Energy Houston Elec., LLC, 324 S.W.3d 95, 97-100 (Tex. 2010) (stating that "if an agency 'does not follow the clear, unambiguous language of its own regulation, we reverse its action as arbitrary and capricious'" (quoting Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 255 (Tex. 1999))). However, I do not join in the majority's sua sponte analysis of rule 3.284's validity, including its holding that the underlying statute is ambiguous. 

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Filed: February 9, 2012