1. (a) Any party relying on a specific agency policy not incorporated in a rule has the burden of authenticating the policy and showing it to be applicable to a factual or legal issue in the case.

2. (b) In resolving contested issues in the case, the ALJ shall consider any applicable agency policy not incorporated in the agency's rules which is supported by the evidence. The ALJ's decision or recommendation on whether to apply an agency's policy will depend upon the nature and context of the policy and any request to apply it, and such other factors as:

   1. (1) the extent to which the parties were given notice of the policy and adequate opportunity to address it in the presentation of their cases and arguments, and whether and for what reasons any party has opposed application of the policy in the case;
   2. (2) the specificity of the policy statement and the relative certainty of its applicability to the case;
   3. (3) the stability and duration of the policy, as illustrated by the type of process that led to its adoption, the frequency and consistency with which it has been applied previously, and the level of formality of the process required for the agency to amend it;
   4. (4) the highest level within the agency at which the policy has been adopted or ratified;
   5. (5) whether the policy is a substantive principle coming within the agency's subject matter expertise and jurisdiction, or pertains more to contested case procedure and practice; and
   6. (6) whether application of the policy would violate applicable constitutional or statutory provisions, or would be inconsistent with applicable decisions by Texas courts.

Source Note:The provisions of this §155.53 adopted to be effective January 2, 1998, 22 TexReg 12719.