The Railroad Commission of Texas is an odd agency. Established in 1891 to regulate railroad charges and tariffs, it no longer has any connection to the railroads. Instead, it regulates mostly the oil and gas industry. This can cause comedic confusion.


A decade ago, the commission incorporated two copyrighted standards into state regulations. The practice of making copyrighted standards enforceable by law is permitted in Texas, but state agencies must follow specific safeguards to do it. In Texas, the practice is called “adoption by reference.”


The copyrighted standards – the 2006 version of the National Fuel Gas Code and the 2008 version of the Liquified Petroleum Gas Code – are both produced by the Quincy, Massachusetts-based National Fire Protection Association. If you want to odorize natural gas in Texas, the Liquified Petroleum Gas Code is the standard for you.


But Texans who want to ensure they’re obeying this little patch of state law must now pay the National Fire Protection Association around $70 to purchase a copy of the code, or they can travel to Austin to inspect it for free in a government reading room.


Critics of the practice – called “incorporation by reference” outside Texas – include people like Carl Malamud of Public.Resource.Org and legal scholars like Emily Bremer at Notre Dame, Peter L. Strauss at Columbia and Susan Rose-Ackerman at Yale. They openly question the practice for many reasons. But at least the Railroad Commission carefully followed the Texas Administrative Procedure Act and the Texas Administrative Code, which requires notice in the Texas Register for public comment and an analysis of the likely effects on state and local government, and on small businesses in Texas.


Contrast that with another agency, the Texas Appraiser Licensing and Certification Board. On its own authority, the board has given carte blanche authority to 23 versions of a copyrighted standard known as the “Uniform Standards of Professional Appraisal Practice.”


Essentially, the board has allowed a nonprofit to draft and approve regulations in this corner of Texas law without a rulemaking; the group’s uniform standards keep changing but no version has ever undergone a required public-notice-and-comment process in the state register or analysis of the effects of the constant change on small businesses in Texas. The board has delegated the people’s work to a 14-employee foundation in Washington, D.C., called the Appraisal Foundation. Most Texas real estate appraisers must comply with the private standard. The nonprofit has figured out how to monetize the arrangement and Texas property owners end up indirectly paying for the continual regulatory changes.


I stumbled upon this activity while researching my recent book, “Dispatches from the Cosmic Cobra Breeding Farm.” It deals with the rise of the practice of “incorporation by reference” among state and federal agencies. The feds pressure the states to adopt the most recent version of this particular standard as it changes like clockwork; the short lead time makes it a good test case for finding chicanery. Agencies in states like Kansas, Maine, Wisconsin, Kentucky and Montana seem to get it right. Others, like the Texas board, have gone rogue.


In turn, the nonprofit that issues the standard engages in a process that has a beguiling likeness to government rulemaking: solicitation of public input, discussion drafts, hearings, technical sessions, and action by a standards council. Heavily stage-managed hearings are held in hotel banquet rooms in places like Las Vegas, Kansas City and Denver. But the hearings are no more relevant to Texas law than the musings of hunters on the first day of pronghorn season in the Panhandle or witty repartee heard at a meeting of a chapter of the Knights of Columbus meeting in Waco.


For starters, no panelist has taken an oath to faithfully execute the duties of any office in the State of Texas. But the group’s paid panelists decide what automatically becomes Texas law year after year. Strictly between us, the standards have never been enforceable because of this defect. But no one has challenged it, so the vaudeville goes on.


Jeremy Bagott is a commercial real estate appraiser and author of “Dispatches from the Cosmic Cobra Breeding Farm.”