ADMINISTRATIVE LAW

FALL 2011

Tex. Underground, Inc. v. Tex. Workforce Comm’n., 335 S.W.3d 670 (Tex. App.—Dallas 2011)

Are Statutory Prerequisites to Suit Jurisdictional?: The failure of a jurisdictional requirement deprives the court of the power to act. If a statutory requirement is not jurisdictional, a court may hear the case although other consequences may flow from a party’s failure to comply with a requirement. If the particular statutory provision defines, enlarges or restricts the class of causes the court may decide or relief that the court may award, the requirement is jurisdictional. A party’s failure to exhaust administrative remedies falls within this class and is a jurisdictional requirement. But a statutory requirement that does none of these things, even if the provision is mandatory, it is not jurisdictional. Held: If an administrative appeal is timely appealed and the proper entities are made parties to the appeal, timely service of process is not jurisdictional.

WRONG DECISION

Hendricks v. T.C.E.Q., W.L. 2437694; LEXIS 4595 (Tex. App.—Austin 2011) (memo op.)

Substantive Finality – Right to Appeal: The T.C.E.Q. had adopted rules and interpreted them in a manner that when the Executive Director issued a substantive, final decision on a matter and even though a party exercised their statutory right to appeal that decision to the T.C.E.Q. Board, the party must appeal the Executive Director’s decision to the district court within 30 days of its rendition. A party appealed to the T.C.E.Q. Board and timely filed an appeal 30 days after the board rendered an order denying the appeal. The district court granted a plea to the jurisdiction for the failure of the party to timely appeal the Executive Director’s order within 30 days of rendition. Held: Affirmed.

Note: Even though the 3^rd Court was properly following precedent wherein two other 3^rd Court opinions held the same, City of Austin v. T.C.E.Q., 303 S.W.3d 379, 382-84 (Tex. App.—Austin 2009), no pet.); West v. T.C.E.Q., 2605 S.W.3d 256, 263 n.8 (Tex. App.—Austin 2008, pet. denied), the decision is plainly wrong and inconsistent with the law of the case and general administrative principles. The relevant statute provided that a party may “appeal” the Executive Director’s opinion to the Board, Tex. Water Code § 5.122(b)(2) and the statute did not define that term. The Texas Supreme Court held long ago that when a board has the right to review subordinate officer’s final decision, that decision is not binding on the board and is merely a proposed decision. Sabine River Auth. v. McNatt, 161 Tex. 551, 342 S.W.2d 741, 746 (Tex. 1961).

Thus, the order of the Executive Director which is appealed to the Board may be amended by the Board pursuant to the exceptions, replies or briefs submitted by the party who would be adversely affected by the proposed decision, Ross v. Tex. Catastrophe Prop. Ins., 770 S.W.2d 641, 642 (Tex. App.—Austin 1989). Therefore, the Board has the total authority to wholly set aside the order and/or replace it with its own or modify the same. Thus, the Executive Director’s order is not appealable to the district court when a party has filed an appeal to the Board for it is not a substantively final order and the Texas Supreme Court has clearly held only substantively final orders of an agency or within the subject matter jurisdiction of the district court, Texas-New Mexico Power Co. v. T.I.E.C., 806 S.W.2d 230, 231-33 (Tex. 1991).

Unfortunately, the party to this appeal did not file a motion for rehearing and/or file a petition in the Texas Supreme Court. Thus, this wholly wrong decision remains “the law” for the appeal of an Executive Director’s order of the T.C.E.Q.