ADMINISTRATIVE LAW

WINTER 2009-2010

AEP Texas Central Co. v. P.U.C., 286 S.W.3d 450 (Tex. App.—Corpus Christi 2008)

Agency Interpretation of Statute Outside of its Expertise: The judiciary does not defer to administrative interpretations in regard to questions which do not lie within administrative expertise or deal with non-technical questions of law.

SIGNIFICANT DECISION

City of Desoto v. White, 288 S.W.3d 389 (Tex. 2009)

Is a Statutory Requirement Jurisdictional?: The failure of a jurisdictional requirement deprives the Court of the power to act (other than to determine that it has no jurisdiction) and ever to have acted, as a matter of law. If the requirement is not jurisdictional, however, the tribunal may hear the case, although other consequences may flow from a party’s failure to comply with the requirement. This Court recognized in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75-77 (Tex. 2000) that deeming a provision jurisdictional opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps ought to be sealed in a judgment. The modern direction of policy is to reduce the vulnerability of a final judgment to an attack on the ground that the tribunal lacked subject matter jurisdiction. Because of these consequences, the judiciary has been reluctant to conclude that a provision is jurisdictional, absent clear legislative intent.

The holding in Dubai applies to tribunals of very limited jurisdiction and the Court’s focus is to avoid a result that leaves the decisions and judgments of the hearing examiner in limbo and subject to future attack, unless that was the Legislature’s clear intent. The Supreme Court held that it had directly applied Dubai’s reasoning to the administrative context in Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 83 (Tex. 2008). Thus, consistent with Dubai, the Court begins with the presumption that the Legislature did not intend the statutory requirements to be jurisdictional, which can only be rebutted by a clear legislative intent to the contrary.

Just because a statutory requirement is mandatory does not make it jurisdictional. It is true that the Legislature provided in §311.034 of the Texas Government Code that “statutory prerequisites to suit, including the provision of notice, are jurisdictional in all suits against a governmental entity.” The Court held that this provision only applied to a waiver of sovereign immunity and only to requirements that were a statutory prerequisite to suit. Further, the Court looks for the presence or absence of specific consequences for noncompliance in determining whether a provision is jurisdictional.

Employment Retirement Syst. of Texas v. Duenez, 288 S.W.3d 905 (Tex. 2009)

Exclusive Jurisdiction: When an agency has exclusive jurisdiction of a dispute, the Courts have no jurisdiction until the administrative procedures are exhausted. In deciding whether an agency has exclusive jurisdiction, the Court looks to its authorizing legislation for an express grant of exclusive jurisdiction or for a pervasive regulatory scheme indicating that it was the Legislature’s intention. Of course, legislation must be granted by the Legislature; an agency cannot grant exclusive jurisdiction to itself.

Further, relegating common law claims to administrative remedies implicates the Texas Constitution Open Courts Provision. The Court has rejected Open Courts complaints when a grant of exclusive jurisdiction involved claims that did not exist at common law. However, the Court declined to allow the delegation of common law claims to an administrative agency.