ADMINISTRATIVE LAW

FALL 2009

INCORRECT DECISION

Continental Home v. City of San Antonio, 275 S.W.3d 9 (Tex. App.San Antonio 2008)

Failure to Exhaust Administrative Remedies: The Court held that the failure of a party to exhaust administrative remedies must be raised by the defendant as an affirmative defense and failure to do so waived the defense, relying on ABT Galveston LTD v. Galveston Cent. Appr. Dist., 137 S.W.3d 146 (Tex. App.Houston [1^st Dist.] 2004). The Houston Court did not so hold and in fact held that a failure to exhaust administrative remedies deprived a trial court of jurisdiction over the cause of action, Id. at 152, relying on Webb Cty. Appr. Dist. v. New Laredo Hotel, 792 S.W.2d 952, 954 (Tex. 1990). Note: This decision is simply wrong and should be disregarded.

Marble Falls I.S.D. v. Scott, 275 S.W.3d 558 (Tex. App.Austin 2008)

District Court Subject Matter Jurisdiction–Premature Filing of an Administrative Appeal: Appeals of agency orders do not fall within the general jurisdiction of the district court. The district court only has subject matter jurisdiction if allowed by statute, see also Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006). Thus, the premature filing of an administrative appeal deprived the district court of subject matter jurisdiction.

SIGNIFICANT DECISIONS

Combs v. Entertainment Publications Inc., W.L. 1657564; LEXIS 4271 (Tex. App.Austin 2009)

Tex. Mut. Ins. v. VISTA Community Med. Center, 275 S.W.3d 538 (Tex. App.Austin 2008)

Rules–Interpretive Rules–Do They Exist?: In two significant decisions, the 3^rd Court of Appeals struggled with whether a general statement issued by an agency indicating to the regulated industry how it intends to interpret and apply existing statutes and/or substantive or procedural rules constituted a “rule” for purposes of the APA and thereby be required to follow notice and comment rulemaking and be subject to § 2001.038 declaratory relief. The complexities of the holdings are beyond the scope of this note and interest3ed practitioners should read both decisions very carefully.

Mitz v. Tx. St. Bd. of Vet. Med. Exam., 278 S.W.3d 17 (Tex. App.Austin 2008)

Challenges to the Constitutionality of a Statute–No Need to Exhaust Administrative Remedies: An agency has no power to determine the constitutionality of a statute. Therefore, there is no need for one to first exhaust administrative remedies prior to challenging the constitutionality of a statute in a court of law.