II. JURISDICTIONAL AND OTHER PRE-REQUISITES TO JUDICIAL REVIEW
A. Nueces Canyon Consolidated Independent School District v. Central
Education Agency, 917 S.W.2d 773 (Tex. 1996).
NATURE AND DISPOSITION OF THE CASE:
School district appeal from administrative decision of Commissioner of
Education approving detachment of territory from district. Travis
County District Court (Davis, J.) affirmed. Third Court of Appeals
(Aboussie and B.A. Smith, JJ.) affirmed. Powers, J. dissented.
Supreme Court (per curiam) reversed and remanded to Commissioner of
Education.
KEY POINT:
Jurisdiction to Review Agency Action -- Filing of Administrative
Record: The APA requires that an administrative record must be offered
into evidence at the trial court in an appeal for judicial review.
Once admitted at the trial court, an appellant may bring an
administrative record in an appeal governed by the APA to an appellate
court as a part of a statement of facts or transcript so long as a
court reporter's certificate or other evidence demonstrates that the
trial court admitted the record. (On same basis the Court reversed
and remanded the decisions of the Austin Court of Appeals in Fetchin
v. Meno, 922 S.W.2d 549, and Ysleta I.S.D. v. Meno, 909 S.W.2d 544).
B. Simmons v. Texas State Board of Dental Examiners, 925 S.W.2d 652
(Tex. 1996).
NATURE AND DISPOSITION OF THE CASE:
Appeal of dental license revocation. Gregg County District Court
(Khoury; J.) dismissed for lack of jurisdiction. Tyler Court of
Appeals (Ramey, C.J. and Holcomb and Hadden, JJ.) affirmed. Supreme
Court, per curiam, revserved and remanded.
KEY POINT:
Jurisdiction -- Dental Practice Act -- APA: Under the Dental Practice
Act (DPA) an aggrieved dentist must file an appeal with district court
within 30 days from the service of the notice of the Board's action.
Because the DPA appellate time table commences with the service of
notice rather than the date of upon which the order becomes final, a
dentist cannot wait for the Board to overrule a motion for rehearing
(45 days under APA) and still be assured of a timely appeal to
district court. Accordingly, the Court holds that the filing of the
suit before the motion for rehearing had been overruled by operation
of law was not in conflict with its decision in Lindsay v. Sterling,
690 S.W.2d 560 (Tex. 1985).
Jurisdiction -- Premature Appeal -- Stay Granted -- Reinstatement:
Appellant filed his petition for judicial review while a motion for
rehearing was pending. Realizing that the appeal had been prematurely
filed, Appellant filed a motion requesting that the Court stay the
proceedings until all administrative remedies had been exhausted,
which motion was granted. Subsequently, the motion for rehearing was
overruled by operation of law. Appellant did not refile the suit for
judicial review within 30 days. Rather, Appellant filed a motion to
reinstate appeal within the 30-day period. The Court denied the
motion, granted the Board's plea to jurisdiction and dismissed the
suit. On appeal, the Court find that Simmons faced a conflict between
the DPA and APA and made every effort to comply with both.
Consequently, we hold that his motion to reinstate substantially
satisfied the judicial-review requirements of the APA and thus invoked
the district court's appellate jurisdiction.
C. Nueces County v. Nueces County Civil Service Commission, 909 S.W.2d
597 (Tex. App.--Corpus Christi 1995, no writ).
NATURE AND DISPOSITION OF THE CASE:
Suit by the county against the County Civil Service Commission
alleging that Commission exceeded its statutorily granted authority in
hearing grievance of a disgruntled employee who had been reassigned by
a sheriff. The Nueces County District Court (Hunter, J.) dismissed for
want of jurisdiction. Court of Appeals (Seerden, C.J., and Yañez and
Chavez, JJ.) reversed and remanded.
KEY POINT:
Jurisdiction of Agency -- Collateral Attack: A reassigned sheriff's
employee filed grievance with the Civil Service Commission, with the
county asserting the Commission was without statutory authority to
hear a grievance concerning reassignments. The issue on appeal is
whether the District Court had jurisdiction to hear a collateral
attack by a governmental entity on a county administrative agency's
allegedly illegal action. The general rule in Texas is that courts do
not interfere in statutorily conferred duties and functions of an
administrative agency, but can intervene in administrative
proceedings when an agency is exercising authority beyond its
statutorily conferred powers. In remanding to the trial court, the
Court finds that the appellant has the right to judicial review to
determine if the Commission did in fact exceed its authority and that
the trial court erred in sustaining the Commission's plea to the
jurisdiction and dismissing the lawsuit.
D. Texas Rivers Protection Association v. Texas Natural Resource
Conservation Commission, 910 S.W.2d 147 (Tex. App.--Austin 1995, writ
denied).
NATURE AND DISPOSITION OF THE CASE:
Property owner and association brought action challenging water
diversion permit granted to river authority by TNRCC. Travis County
District Court (McCown, J.) upheld permit. Court of Appeals (Powers,
Aboussie and Kidd, JJ.) affirmed.
KEY POINT:
Standing to Appeal -- Aggrieved Party: The APA provides that a losing
party in a contested administrative case may, after exhausting
administrative remedies, seek judicial review if the party is
"aggrieved" by the agency's action. That a party had standing before
the agency does not necessarily mean that it has standing for judicial
review since the right to participate in administrative proceedings is
construed quite liberally to encourage varying points of view. A
party is "aggrieved", for purposes of the APA, if the party can show a
justiciable interest in the contested matter.
E. Harris County Municipal Utility District No. 48 v. Mitchell, 915
S.W.2d 859 (Tex. App.--Houston [1 Dist.] 1995, writ denied).
NATURE AND DISPOSITION OF THE CASE:
Executor of the estate was awarded contract damages arising out of
loan between developer and municipal utility district by the Harris
County District Court (D. West, J.). Court of Appeals (Wilson,
Hedges, and Taft, JJ.) modified the judgment in part and affirmed as
modified.
KEY POINTS:
Doctrine of Primary Jurisdiction -- Delegation to Agency by Statute:
Primary jurisdiction is a judicially created doctrine in which a court
may dismiss or stay an action pending a resolution of some portion of
the case by administrative agency. Under the Doctrine of Primary
Jurisdiction, a matter delegated by statute to an administrative
agency for initial action must be determined by that agency before
the matter may be reviewed by a court.
Exhaustion of Administrative Remedies: Under the Doctrine of
Exhaustion of Administrative Remedies, a party to an administrative
proceeding is not entitled to judicial review of the agency's action
until the party has pursued its rights to review through the
prescribed administrative process.
F. Turner Brothers Trucking Company, Inc. v. Commissioner of Insurance
of State of Texas, 912 S.W.2d 386 (Tex. App.--Austin 1995, no writ).
NATURE AND DISPOSITION OF THE CASE:
Insured trucking firm sought review of order of Commissioner of
Insurance concerning retroactive premium increase in its workers'
compensation insurance policy issued by Texas Workers' Compensation
Facility, and Facility's authority to offset balance owed against
refund owed to insured on subsequent coverage. Travis County District
Court (Williams, J.) affirmed. Court of Appeals (Carroll, C.J., and
Jones and B. A. Smith, JJ.) affirmed.
KEY POINT:
Jurisdiction to Hear Claim Raised in Amended Petition: A plaintiff in
a suit for judicial review of an agency's final order may amend its
original petition to plead causes of action within the trial court's
subject matter jurisdiction. Since the amended original petition
raised claims which had been contained in its motion for rehearing
before the Commissioner, the trial court had jurisdiction to hear the
claim.
G. Glasscock Underground Water Conservation District v. Pruit, 915
S.W.2d 577 (Tex. App.--El Paso 1996, no writ).
NATURE AND DISPOSITION OF THE CASE:
Underground water conservation district sought declaratory judgment
that annexation petitions from surface owners of neighboring water
district effectively annexed severed mineral estates into water
district for tax purposes. Midland County District Court (Hyde, J.)
held that severed mineral estates were not affected by surface owners'
annexations. Water district appealed. Court of Appeals (Barajas,
C.J., and McClure and Chew, JJ.) affirmed.
KEY POINT:
Exhaustion of Administrative Remedies -- Question of Law: In most
instances, a party must exhaust available administrative remedies
before resorting to the courts. However, the parties agreed to
stipulated facts and sought only declaratory relief on a question of
law relating to statutory interpretation of the Water Code and S.B.
1634. The Appraisal Review Board does not have the ability to resolve
questions of law and therefore is unable to provide the remedy
requested. Thus, the matter properly is before the Court without
first exhausting administrative remedies.
H. C.O.N.T.R.O.L. v. Sentry Environmental, L.P., 916 S.W.2d 677 (Tex.
App.--Austin 1996, error denied).
NATURE AND DISPOSITION OF THE CASE:
Applicant for municipal solid waste permit and opponents petitioned
for judicial review of decision of TNRCC which denied permit, but on
grounds other than those advanced by opponents. Travis County
District Court (McCown, J.) dismissed opponents' petition for want of
jurisdiction. Court of Appeals (Carroll, C.J., and Jones and B.A.
Smith, JJ.) affirmed.
KEY POINT:
Standing to appeal -- Aggrieved Party: To appeal a party must be
aggrieved by a final decision in a contested case. The requested
permit was denied, which was the objective of the opponents. The fact
that the permit was denied on grounds other than those advanced by
opponents does not place them in the status of an aggrieved party.
I. American Pawn and Jewelry, Inc. v. Kayal, 923 S.W.2d 670 (Tex.
App.--Corpus Christi 1996, writ filed).
NATURE AND DISPOSITION OF THE CASE:
Owners of jewelry filed action for breach of contract and conversion
of personalty against pawnshop that lost jewelry. Cameron County Court
at Law No. 2 (Garcia, J.) entered judgment in favor of plaintiffs.
Court of Appeals (Seerden, C.J., and Hinojosa and Chavez, JJ.)
reversed and dismissed.
KEY POINTS:
Doctrine of Primary Jurisdiction -- Delegation to Agency: Under
Doctrine of Primary Jurisdiction, courts will not determine a
controversy (1) involving a question that is within the jurisdiction
of an administrative tribunal prior to the decision by the tribunal;
(2) where the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and intricate
matters of fact; and (3) where uniformity of ruling is essential to
comply with the purposes of the regulatory statute administered.
Administrative Primary Jurisdiction -- Exceptions: There are three
exceptions to the administrative primary jurisdiction rule. First, if
a disputed issue is one inherently judicial in nature, the courts will
not be ousted from jurisdiction, unless the Legislature by a valid
statute explicitly has granted exclusive jurisdiction to the
administrative body. Second, primary jurisdiction does not apply
when the administrative agency is powerless to grant the relief sought
and has no authority to make incidental findings which are essential
to the granting of the relief. Third, courts may intervene in
administrative proceedings when an agency exercises authority beyond
its statutorily conferred powers.
J. Carrillo v. Anthony Independent School District, 921 S.W.2d 800
(Tex. App.--El Paso 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Teacher sued school district and others alleging wrongful
termination, breach of contract and violation of due process. El Paso
County Court at Law No. 5 (Cooper, J.) granted summary judgment for
defendants. Court of Appeals (Barajas, C.J. and McClure and Chew,
JJ.) reversed and remanded.
KEY POINT:
Exhaustion of Administrative Remedies -- Exception: As a general rule,
a teacher complaining of wrongful discharge must exhaust all available
administrative remedies if the subject matter involves questions of
fact. An exception to this general rule applies when a plaintiff
asserts federal law claims, and recourse may be sought in a court of
law. Since plaintiff asserted both a federal and state constitutional
due process claim and a claim pursuant to 42 U.S.C. § 1983, exhaustion
of administrative remedies was not a prerequisite to seeking relief in
a court of law.
K. Montgomery v. Blue Cross & Blue Shield of Texas, Inc., 923 S.W.2d
147 (Tex. App.--Austin 1996, writ filed).
NATURE AND DISPOSITION OF THE CASE:
Insureds brought extracontractual bad faith claims against group
health insurer. During pendency of that suit, insureds requested
Employees Retirement System of Texas (ERS), to hear the
extracontractual claims. ERS denied the request, which denial was
consolidated with original suit. Travis County District Court (McCown,
J.) granted summary judgment in favor of insurer, and insureds
appealed. The Court of Appeals en banc (Carroll, C.J.) reversed and
remanded.
KEY POINT:
Doctrine of Res Judicata -- Agency Jurisdiction: The Doctrine of Res
Judicata is applicable to the relitigation of claims previously
determined by an administrative agency, but does not bar a claim if
the agency lacks the authority or jurisdiction to consider the subject
matter.
L. Hernandez v. Texas Department of Insurance, 923 S.W.2d 192 (Tex.
App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Appeal by insurance agent of license revocation. (Covington, J.)
dismissed for want of jurisdiction. Court of Appeals (Powers, Jones
and B.A. Smith, JJ.) affirmed.
KEY POINT:
Motion for Rehearing -- Failure of Agency to Provide Notice that
Motion for Rehearing was Overruled by Operation of Law: The
Commissioner's failure to provide notice that Hernandez' motion was
overruled by operation of law did not violate the Supreme Court's
decision in Commercial Life Ins. v. Board of Insurance, 774 S.W.2d 650
(Tex. 1989) (holding that the time for filing a motion for rehearing
does not begin until the agency serves notice on the aggrieved party
of the date on which the time period for filing the motion for
rehearing begins to run). In this instance, Hernandez knew or was
charged with knowledge that if the agency did not act on her motion
after the expiration of 45 days after the notice of the final order,
it would be overruled by operation of law. Thus, Hernandez' own
failure to note the passage of 45 days, not the agency's failure to
provide notice, compromised Hernandez' ability to seek judicial
review.
M. Texas Health Enterprises, Inc. v. Texas Department of Health, No.
03-95-00709-CV, 1996 WL 346311 (Tex. App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Appeal of TDH decision terminating nursing center's Medicaid
certification. Travis County District Court (Dietz) affirmed. Austin
Court of Appeals (Carroll, C.J., and Aboussie and Kidd, JJ.) affirmed.
KEY POINT:
Jurisdiction -- Failure to Offer Administrative Record: Appellant did
not offer the administrative evidence into the record in accord with
Section 2001.175(d) of the APA. The issue presented is whether that
section is mandatory or directory. Citing the Supreme Court's
decision in Nueces Canyon (Paragraph IIB above) the Court holds that
APA Section 2001.175(d) is mandatory and not directory.
III. STANDARD OF REVIEW
A. National Association of Independent Insurers v. Texas Department of
Insurance, 925 S.W.2d 667, (Tex. 1996).
NATURE AND DISPOSITION OF THE CASE:
Challenge to two rules adopted by DOI. Travis County District Court
(Dellana, J.) upheld rules. Austin Court of Appeals (Carroll, C.J.,
and Jones and Kidd, JJ.) affirmed, 888 S.W.2d 198. Supreme Court
(Cornyn) reversed.
KEY POINTS:
Standard of Review -- Rulemaking -- Reasoned Justification: The
Legislature has directed that when an administrative agency adopts a
rule, it must at the same time state a reasoned justification for the
rule. That is, the agency must explain how and why it reached the
conclusions it did. The agency's order must present its justification
"in a relatively clear, precise, and logical fashion."
Standard of Review -- Rulemaking -- Requirements: In addition to a
reasoned justification, the order adopting the rule must include (1)
a summary of the comments the agency received from interested parties;
(2) a restatement of the factual basis for the rule; and (3) the
reasons why the agency disagrees with the comments. Thus, Section
2001.033 places an affirmative duty on an agency to summarize the
evidence it considered, state a justification for its decision based
on the evidence before it, and demonstrate that its justification is
reasoned. If an order does not substantially comply with these
requirements, the rule is invalid.
Standard of Review -- Rulemaking -- Substantial Compliance: An
agency's order substantially complies with the reasoned justification
requirement if it (1) accomplishes the legislative objectives
underlying the requirement and (2) comes fairly within the character
and scope of each of the statute's requirements in specific and
unambiguous terms.
Rulemaking -- Articulated Reasons: Provisions like Section 2001.033
are designed to compel an administrative agency to articulate its
reasoning and, in the process, more thoroughly analyze its rules.
Requiring an agency to demonstrate a rational connection between the
facts before it and the agency's rules promotes public accountability
and facilitates judicial review. It also fosters public
participation in the rulemaking process and allows interested parties
to better formulate "specific, concrete challenges" to a rule.
Rulemaking -- Judicial Review: Judicial review of administrative
rulemaking is especially important because, although the executive
and legislative branches may serve as political checks on the
consequences of administrative rulemaking, the judiciary is assigned
the task of policing the process of rulemaking. Given the vast power
allocated to governmental agencies and the modern administrative
state, and the broad discretion ordinarily afforded those agencies,
judicial oversight of the rulemaking process represents an important
check on government power that might otherwise exist without
meaningful limits.
Rulemaking -- Adoption -- Need for Explanation: Without an
explanation by the Board of its reasoning, we cannot know, and just as
importantly, the public cannot know, why the Board reached the
conclusions that it did. The Legislature has mandated that the
reasoning an agency actually relied upon appear in the order. If
courts allow agencies to adopt conclusionary rules, the purpose of
Section 2001.033 -- to provide meaningful public participation in the
rulemaking procedure, to allow opponents of the rule to formulate
specific challenges, and to ensure that the agency carefully considers
and analyzes a rule before adopting it -- will be eviscerated.
B. Railroad Commission of Texas v. Torch Operating Company, 912 S.W.2d
790 (Tex. 1995).
NATURE AND DISPOSITION OF THE CASE:
Appeal of RRC order deciding that temporary oil well spacing and
density rules established for subject field did not apply to
subsequent operator of well in field. Travis County District Court
(Dellana, J.) affirmed. Third Court of Appeals (894 S.W.2d 3)
reversed and remanded. Supreme Court (Spector, J.) reversed and
rendered judgment upholding RRC order.
KEY POINT:
Adequacy of Notice -- Due Process -- Finding Notice Not Provided:
Torch asserted the RRC's exemption from the temporary field rules
based on lack of notice exceeded its statutory authority. The RRC is
required by statute to ensure that no rule or order is adopted by the
agency except after adequate notice and a hearing had been provided.
Under the facts of the case, RRC was within its discretion in
determining that subsequent operator had not received adequate notice
or a hearing and that the RRC did not err when it decided that the
subsequent operator was not bound by the temporary field rules on the
basis of lack of notice.
C. El Paso Electric Company v. Public Utility Commission of Texas, 917
S.W.2d 846 (Tex. App.--Austin 1995, no writ); jdmt vacated, 917 S.W.2d
872 (Tex. App.--Austin 1996).
NATURE AND DISPOSITION OF THE CASE:
Appeal of PUC order disallowing from rate base portion of utility's
investment in nuclear power plant and certain costs for imprudence
resulting in construction delays and postponing other costs as
involving more capacity than was currently used and useful. Travis
County District Court (McCown, J.) reversed and remanded in part and
affirmed in part. Austin Court of Appeals reversed and rendered in
part, and affirmed in part.
KEY POINT:
Statutory Findings of Fact -- Need for Findings of Underlying Fact: An
agency's findings of fact that are expressed in statutory language or
that "represent the criteria that the legislature has directed the
agency to consider in performing its function" must be supported by
findings of underlying fact.
D. Texas Department of Public Safety v. Raffaelli, 905 S.W.2d 773
(Tex. App.--Texarkana 1995, no writ).
NATURE AND DISPOSITION OF THE CASE:
Driver sought judicial review of decision of DPS suspending driver's
license. Bowie County District Court (Miller, Jr., J.) reversed.
Texarakana Court of Appeals (Cornelius, C.J., and Bleil and Grant,
JJ.) reversed.
KEY POINT:
Substantial Evidence: At its core, the substantial evidence rule is a
reasonableness or rational basis test. The reviewing court thus
concerns itself with the reasonableness of the administrative order,
not its correctness. Findings, inferences, conclusions and decisions
of an administrative agency are presumed to be supported by a
substantial evidence, and the burden is on the contestant to prove
otherwise. If there is evidence to support either affirmative or
negative findings on a specific matter, the administrative decision
must be upheld.
E. City of Sherman v. Henry, 910 S.W.2d 542 (Tex. App.--Dallas 1995)
reversed, 39 Tex. Sup. J. 920, 1996 WL 378324.
NATURE AND DISPOSITION OF THE CASE:
Police officer appealed civil service commission decision upholding
police chief's decision denying promotion. Grayson County District
Court (Grisham, J.) rendered summary judgment for officer. Dallas
Court of Appeals (Thomas, C.J., and Maloney and Chapman, JJ.) affirmed
in part, and reversed and remanded in part. Supreme Court (Abbott)
reversed on constitutional issue.
KEY POINTS:
Agency Interpretation of Law -- Court Review: When reviewing
administrative agency decisions, questions of law are not entitled to
a presumption of validity. Neither a district court nor an appellate
court is bound by an administrative agency's interpretation of the
law. In fact, the only time courts should give serious consideration
to an agency's legal interpretation is when the agency is construing
the statute that it is charged to enforce. Whether the agency's
action violated the United States or Texas constitution is a question
of law and is not reviewed under the substantial evidence rule.
Constitutional Issues -- Not Raised Before Agency: Parties seeking to
challenge civil service commission decisions on constitutional grounds
may first do so in the trial court. Since the Court does not defer to
an agency's determination of a matter of law, and because the
constitutional issue was not heard by the agency, it would be improper
for the Court to defer to the agency while reviewing the
constitutional question under the substantial evidence standard.
Accordingly, the Court will review the constitutional question de
novo.
F. Hunter Industrial Facilities v. Texas Natural Resource Conservation
Commission, 910 S.W.2d 96 (Tex. App.--Austin 1995, writ denied).
NATURE AND DISPOSITION OF THE CASE:
Judicial review sought of TNRCC decision denying permit applications.
Travis County District Court (Meurer, J.) affirmed. Austin Court of
Appeals (Aboussie, Kidd and B. A. Smith, JJ.) affirmed.
KEY POINTS:
Standard of Review -- Solid Waste Disposal Act: The Court holds that
SWDA Section 361.0832 provides standards detailing when the TNRCC
properly may overturn the findings, conclusions and ultimate findings
of a hearing examiner. Accordingly, APA Section 2001.174(2) governs
the Court's review. That section provides that a reviewing court may
reverse or remand an agency determination when "the administrative
findings, inferences, conclusions, or decisions are: (A) in violation
of a constitutional or statutory provision [or] (B) in excess of the
agency's statutory authority."
Hearings Examiner's Proposal -- Right of TNRCC to Reject: The Court
holds that in its appellate review, it must examine whether the TNRCC
committed legal error in overturning a hearings examiner's PFD. Under
SWDA Section 361.0832, the TNRCC no longer is permitted merely to
substitute its judgment for that of the hearings examiner, but must
conform to certain prescribed statutory standards in overturning
findings and conclusions.
G. Board of Law Examiners of State of Texas v. Allen, 908 S.W.2d 319
(Tex. App.--Austin 1995, no writ).
NATURE AND DISPOSITION OF THE CASE:
Board of Law Examiners recommended bar applicant for probationary
license. Travis County District Court (Cooper, J.) reversed. Austin
Court of Appeals (Carroll, C.J., and Jones and B. A. Smith, JJ.)
reversed and rendered.
KEY POINT:
Non-APA Appeals -- Standard of Review: The Court holds that while the
APA does not govern the Board's procedures, nevertheless the decision
will be reviewed on whether the decision reasonably is supported by
substantial evidence. Tex. R. Gov. Bar Admission 15(i)(5).
H. Wilmer-Hutchins Independent School District v. Brown, 912 S.W.2d
848 (Tex. App.--Austin 1995, no writ).
NATURE AND DISPOSITION OF THE CASE:
Teacher appealed from ISD Trustee decision not to renew contract.
Commissioner of Education ordered teacher reinstated. Board appealed
and teacher filed cross-petition alleging breach of contract claim.
Travis County District Court (Davis, J.) upheld Commissioner's
decision and granted teacher's claim for breach of contract. Austin
Court of Appeals (Carroll, C.J., and Aboussie and Kidd, JJ.) affirmed.
KEY POINTS:
Standard of Review -- Agency Interpretation of Statute: The court
holds that on appellate review, while not entitled to a presumption of
validity, an agency's interpretation of a statute is viewed under a
plainly "erroneous" standard. An agency interpretation of a statute
receives "serious consideration" if reasonable and not contradictory
of its plain language.
Standard of Review -- Substantial Evidence: The Court first holds
that, according to the substantial evidence rule, it must first
consider whether the evidence as a whole is such that reasonable
minds could have reached the same conclusion as the Commissioner. The
Court then continues by holding it may not substitute its judgment
for that of the Commissioner and may consider only the record on which
the Commissioner reached his decision. The appealing party bears the
burden of demonstrating a lack of substantial evidence, and the
appealing party cannot meet this burden merely by showing that the
evidence preponderates against the agency decision. The Court finally
holds that if substantial evidence would support either affirmative
or negative findings, it must uphold the agency decision and resolve
any conflicts in favor of the agency decision.
Standard of Review -- Motion for Rehearing: A motion for rehearing
must be sufficiently definite to apprise the agency of the error
claimed and to allow the agency the opportunity to correct the error
or to prepare to defend it. In its motion for rehearing before the
Commissioner, the Board complained neither about the Commissioner's
failure to consider certain legally relevant factors, nor that
reinstatement was an improper remedy. The Court agreed with the
teacher that the Board failed to preserve error on these points and
waived the issues on appeal.
I. Texas Hospital Association v. Texas Workers' Compensation
Commission, 911 S.W.2d 884 (Tex. App.--Austin 1995, writ filed).
NATURE AND DISPOSITION OF THE CASE:
Hospitals brought action for declaratory and injunctive relief against
Commission claiming that rule promulgated by Commission was void and
unenforceable under APA. Travis County District Court (Davis, J.)
denied relief. Austin Court of Appeals (Powers, Aboussie and Kidd,
JJ.) reversed, and judgment rendered making rule void and enjoining
Commission from enforcing it.
KEY POINTS:
Standard of Review -- Agency Rulemaking: The APA requires that an
agency order adopting a rule must contain a reasoned justification for
that rule. The Court holds that a reasoned justification must include
the following three elements: (1) a summary of comments the agency
received; (2) a restatement of the rule's factual basis; and (3) the
reasons why the agency disagrees with a party's comments. In addition
to these three minimum criteria, the agency must provide a reasoned
justification for the rule as a whole. If the order adopting a rule
does not substantially comply with the above requirements within its
"four corners", the rule is invalid.
Standard of Review -- Reasoned Justification: The Court holds it
reviews a challenge to the reasoned-justification requirement using an
"arbitrary and capricious" standard, with no presumption that facts
exist to support the agency's order.
Order Adopting Rule -- Conclusionary Statements: The Court finds that
the Commission's order provides conclusionory allegations that the
rule will effectively achieve the Commission's statutory mandate, but
utterly fails to describe how or why the Commission arrived at that
conclusion. The Court then holds that an order phrased and
conclusionary terms does not satisfy the APA requirement of a reasoned
justification or factual basis for a rule.
J. Southwest Professional Indemnity Corporation v. Texas Department
of Insurance, 914 S.W. 256 (Tex. App.--Austin 1996, writ filed).
NATURE AND DISPOSITION OF THE CASE:
Appeal of a cease and desist order. Travis County District Court
(Williams, J.) affirmed. Austin Court of Appeals (Carroll, C.J., and
Jones and B. A. Smith, JJ.) affirmed.
KEY POINT:
Order -- Substantial Evidence Review: In conducting a
substantial-evidence review, the Court holds that it first must
determine whether the evidence as a whole is such that reasonable
minds could have reached the conclusion the agency must have reached
in order to take the disputed action. The Court then holds that it
may not substitute its judgment for that of the agency and may
consider only the record on which the agency based its decision. The
agency's findings, inferences and conclusions are presumed to be
supported by substantial evidence, and the appealing party bears the
burden of showing a lack of substantial evidence. An Appellant cannot
meet this burden merely by showing that the evidence preponderates
against the agency decision. If substantial evidence would support
either affirmative or negative findings, the reviewing court must
uphold the order, resolving any conflict in favor of the agency's
decision.
K. McKinley Iron Works, Inc. v. Texas Employment Commission, 917
S.W.2d 468 (Tex. App.--Fort Worth 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Employer filed suit for trial de novo review of TEC decision allowing
claimant unemployment benefits. Tarrant County Court at Law (Wallace,
J. affirmed). Fort Worth Court of Appeals (Day, Dauphinot and Holman,
JJ.) affirmed.
KEY POINTS:
Standard of Review -- Trial De Novo Review of Agency Decision: When a
statute allows trial de novo review of a state agency's decision, this
means there can be a trial, but only to determine issues of whether
the agency's ruling is free of the taint of any illegality and is
reasonably supported by the substantial evidence. Substantial
Evidence -- Trial De Novo: The Court sets forth the following
principles that govern a trial court's substantial evidence review:
(1) The court will hear and consider evidence to determine whether
reasonable support for the agency's order exists but the agency
remains the primary fact-finding body, and the question for the trial
court is strictly one of law; (2) the trial court may not substitute
its own judgment for that of the state agency on controverted issues
of fact; (3) if the agency heard substantial evidence that would
support either an affirmative or negative finding, the trial court
must allow the agency's order to stand, even if the court would have
differed with the result; (4) the trial court may not set aside the
agency's ruling merely because there was conflicting or disputed
testimony; and (5) the trial court is concerned only with the
reasonableness of the agency's order, not its correctness.
Trial De Novo -- Agency Record: The evidence heard by the TEC can be
considered by the trial court if the evidence from the hearing
properly is introduced and admitted in the trial court.
L. Meier Infiniti Co. v. Motor Vehicle Board, 918 S.W.2d 95 (Tex.
App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
A direct appeal of order of Motor Vehicle Board granting new
dealership a license to sell cars of same line-make in same community.
Austin Court of Appeals (Carroll, C.J., and Jones and B. A. Smith,
JJ.) affirmed.
KEY POINTS:
Findings of Fact -- Sufficiency: In addressing Appellant's points of
error that the Board failed to address "critical" and "controlling"
factual issues, the Court held that it is the agency that has sole
responsibility for determining which issues are "critical" and
"controlling". Findings are not required on matters that the agency
did not find persuasive or on which it did not rely for support of its
ultimate decision.
Agency Consideration of Statutory Criteria -- Findings of Fact: While
an agency is required to consider all of the statutory criteria
relating to its action, the agency does not need to make ultimate
findings of fact as to each of the factors. Rather, logical force of
the findings of underlying fact must be such that the reviewing court
fairly and reasonably can say that the underlying findings support the
statutorily required criteria.
Standard of Review -- Motions for Continuance and Reopening -- Agency
Discretion: The decisions of an agency on matters involving its
administrative docket are within the discretionary control of the
hearing officer. Such decisions should therefore be subject to review
under the abuse of discretion standard.
M. Live Oak Resort v. Texas Alcoholic Beverage Commission, 920 S.W.2d
795 (Tex. App.--Houston [1st Dist.] 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Appeal of denial of application for liquor license. Washington County
District Court (Towslee J.) affirmed. Houston Court of Appeals
(O'Connor, Andell and Hutson-Dunn, JJ.) reversed and remanded.
KEY POINTS:
Statutory Findings -- Need for Supporting Underlying Facts: The Court
found that the order denying the license was based purely on statutory
grounds and, therefore, a statement of underlying facts was required
to support such a decision. The Court then held that valid findings
of fact must be clear and specific and a mere conclusion or a recital
of evidence is inadequate. Underlying facts that must accompany
findings of fact set forth in statutory language may not be presumed
from findings of a conclusional nature. Mere recitals of testimony or
references to, or summations of, evidence are improper and do not
satisfy the requirements to support fact-findings set forth in
statutory language.
Findings of fact -- Purpose: Findings should be sufficient to serve
the purpose for requiring findings of fact, which is to inform the
parties and the reviewing court of the basis for the agency's
decisions so the parties may intelligently prepare a suit for judicial
review and so the court may properly exercise its function. Without
proper findings of fact, a court has no way of determining whether
there was an abuse of discretion by the agency.
N. Central Power and Light Company v. Sharp, 919 S.W.2d 485 (Tex.
App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Suit for refund of franchise taxes. Travis County District Court
(Dellana, J.) entered summary judgment in favor of Comptroller.
Austin Court of Appeals (Carroll, C.J., and Jones and B. A. Smith,
JJ.) affirmed.
KEY POINT:
Agency Interpretation of Statute -- Subsequent Legislative Action:
When an agency interpretation is in effect at the time the Legislature
amends the law without making substantial change in the statute, the
Legislature is deemed to have accepted the agency's interpretation.
O. McCarty v. Texas Parks & Wildlife Department, 919 S.W.2d 853
(Tex. App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Declaratory judgment action to declare invalid rule promulgated by
TPWD. Travis County District Court (Lowry, J.) declared rule valid.
Austin Court of Appeals (Carroll, C.J. and Aboussie and Kidd, JJ.)
affirmed.
KEY POINTS:
Agency Rule -- Statutory Requirements: The Legislature established
the general procedural requirements for rulemaking. An agency must
provide: (1) public notice; (2) an opportunity for and full
consideration of comments; and (3) a reasoned justification for the
rule enacted. To be valid, a rule must be adopted in substantial
compliance with these procedures.
Agency Rule -- Standard of Review: To be upheld on judicial review, an
agency rule must be reasonable. A rule is reasonable when it is based
on some legitimate position by the agency. The rule need not be wise,
desirable, or even necessary. A rule is a valid exercise of statutory
authority if its provisions are in harmony with the general objectives
of the enabling statute.
Agency Rule -- Invalidity: A rule is arbitrary and capricious when it
lacks a legitimate reason to support itself. A rule is invalid under
the arbitrary and capricious standard if the agency omitted from
consideration a fact that the Legislature intended the agency to
consider, considered an irrelevant factor, or reached an unreasonable
result despite weighing the relevant factors.
P. Four Stars Food Mart, Inc. v. Texas Alcoholic Beverage Commission,
923 S.W.2d 266 (Tex. App.--Fort Worth 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Appeal of county judge's denial of application to renew alcohol
permit. Tarrant County District Court affirmed. Fort Worth Court of
Appeals (Livingston, Dauphinot and Brigham, JJ.) in per curiam opinion
affirmed.
KEY POINT:
Standard of Review -- TABC order: Court review of final orders issued
by the TABC are governed by the substantial evidence rule. Under the
substantial evidence rule, the burden of proof is on the licensee to
show that the administrative order was not reasonably supported by a
substantial evidence, rather than by a preponderance of the evidence.
Q. Lauderdale v. Texas Department of Agriculture, 923 S.W.2d 834
(Tex. App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Appeal of order imposing administrative penalties. Travis County
District Court (Lowry, J.) affirmed. Austin Court of Appeals (Powers,
Jones and B. A. Smith, JJ.) affirmed.
KEY POINTS:
Standard of Review -- Department of Agriculture Orders: The Court
holds that its review of an order issued by the Texas Department of
Agriculture is limited to that specified in the APA for judicial
review under the substantial evidence rule.
Standard of Review -- Substantial Evidence: In determining an
Appellant's argument that the underlying facts are not supported by a
substantial evidence, the Court holds that it may not substitute its
judgment for that of the agency on the weight of the evidence, but
must test any disputed finding of basis or underlying fact against
that body of evidence. Substantial evidence is thus a term of art.
It does not mean a large or considerable amount of evidence, but
rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion of fact.
R. Gilder v. Meno, No. 03-95-00080-CV, 1996 WL 346298 (Tex.
App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Teacher appeal of Commissioner's order affirming school board decision
not to renew contract. Travis County District Court (Williams)
affirmed. Austin Court of Appeals (Carroll, C.J., and Jones and B. A.
Smith, JJ.) affirmed.
KEY POINTS:
Appeal of I.S.D. Decision -- Commissioner -- New Evidentiary Hearing:
We will first address what sort of review the Commissioner is required
to conduct in appeals from local school board decisions under TCNA
(Term Contract Nonrenewal Act). The precise issue is whether the
scope of review mandated by the TCNA requires the Commissioner to
conduct a new evidentiary hearing in reviewing every local school
board decision not to renew a teacher's contract. Commissioner's
rules permit a teacher to present evidence only in limited
circumstances with allegations that the decision was arbitrary,
capricious, unlawful or not supported by substantial evidence to be
resolved by a review of the record of appeal. However, on the motion
of either party, the Commissioner may order that additional evidence
be taken to supplement the transcript if it appears that such party
has evidence to offer which is material, relevant, and not unduly
repetitious, which that party, for good cause, was unable to adduce at
the local hearing.
Appeal to Commissioner -- APA Standards: Although the APA provisions
governing review of agency decisions do not apply when the
Commissioner is reviewing the decision of a local school board, the
Court is of the opinion that the language of the TCNA follows that in
the APA and that the Commissioner is to look only to the record made
before the local Board to determine whether that body's findings are
reasonably supported by a substantial evidence.
Standard of Review -- Appeal to Commissioner: After reviewing the
statutory history, the Court states that it thinks the Commissioner
correctly understood the TCNA to dictate a substantial evidence
standard of review that is consistent with the procedure outlined in
rule 157.64(b). The Commissioner is the officer charged with
administration of appeals under the TCNA. We accord his
interpretation of the statute deference because of his expertise and
experience in dealing with the practical problems of preserving local
decision-making while still providing for an appeal to a state
administrative body.
IV. AGENCY'S EXPRESS AND IMPLIED POWERS
A. Texas Water Commission v. Brushy Creek Municipal Utility District,
917 S.W.2d 19 (Tex. 1996).
NATURE AND DISPOSITION OF THE CASE:
Appeal of TWC order. Travis County District Court (Davis, J.)
affirmed. Austin Court of Appeals (Powers, J.), 887 S.W.2d 68,
reversed and remanded with instructions. Supreme Court (Spector, J.)
reversed and remanded.
KEY POINT:
Agency Interpretation of Statute: In construing a statute, the Supreme
Court holds that the construction of a statute by an agency charged
with its execution is entitled to serious consideration unless the
agency's construction clearly is inconsistent with the Legislature's
intent.
B. Graves v. Morales, 923 S.W.2d 754 (Tex. App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Declaratory judgment sought by taxpayer to Comptroller's decision not
to collect attorney occupation tax from state employees. Travis
County District Court (McCown, J.) denied taxpayer's motion for
summary judgment and granted state's motion for summary judgment.
Austin Court of Appeals (Powers, Aboussie and Kidd, JJ.) per curiam
affirmed.
KEY POINT:
Purpose of Rule -- Administrative Convenience: The Comptroller is
authorized to formulate rules to implement tax collection. The rules
need not be published to be valid. The rule challenged is an attempt
by the Comptroller to deal administratively with the imposition of the
new tax, the state employee's ability to pay it for their employees,
and the most efficient way to collect and remit it. The Court holds
that the rule need only be based on some legitimate position by the
administrative agency involved and that administrative convenience
is a proper justification for a rule.
C. Jordon v. Staff Water Supply Corporation, 919 S.W.2d 833 (Tex.
App.--Eastland 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Action by a stockholder/member of nonprofit water supply corporation
seeking appointment of receiver to conserve assets and business of
corporation. Eastland County District Court (Purcell, Special Judge)
dismissed. Eastland Court of Appeals (Arnot, C.J., Dickenson, J. and
McCloud, Senior Justice) affirmed in part, reversed in part, and
remanded.
KEY POINT:
Primary jurisdiction -- TNRCC: The Court holds that the TNRCC has
primary jurisdiction over claims alleging that the corporation failed
to provide water and water meters to every person living within the
area served by the corporation. Additionally, the Court holds that a
member's claim relating to the corporation's water rate increases also
is within the primary jurisdiction of the TNRCC, although this
jurisdiction is appellate and not original. However, the Court also
holds that the member's claim of misconduct by the directors is not
within the primary jurisdiction of the TNRCC and properly may be
brought in the district court directly.
D. City of El Paso v. Public Utility Commission of Texas, 916 S.W.2d
515 (Tex. App.--Austin 1995, no writ); Judgment vacated 916 S.W.2d 526
(Tex. App.--Austin 1996).
NATURE AND DISPOSITION OF THE CASE:
Appeal of PUC order. Travis County District Court (Davis, J.)
affirmed. Austin Court of Appeals (Carroll, C.J. and Abroussie and
Jones, JJ.) affirmed.
KEY POINT:
Agency Determination of Evidence: When presented with a volume of
evidence, the Court holds that a state agency like the PUC is the
judge of the weight to be accorded evidence before it.
V. DUE PROCESS CONSIDERATIONS
A. Burkhalter v. Texas State Board of Medical Examiners, 918 S.W.2d 1
(Tex. App.--Austin 1996, n.w.h.).
NATURE AND DISPOSITION OF THE CASE:
Appeal of denial of application for reinstatement of medical license.
Travis County District Court (Davis, J.) dismissed for want of
jurisdiction. Austin Court of Appeals (Carroll, C.J., and Aboussie
and Kidd, JJ.) per curiam affirmed.
KEY POINT:
Constitutional Right to Due Process -- Administrative Appeals: The
right to appeal from an administrative order to the courts is not a
natural or inherent one, but is one that may be granted or withheld at
the discretion of the Legislature. Such rights do not exist unless
specifically granted by the Legislature. The Legislature also may
prescribe for judicial review of administrative action and in such
cases the method so prescribed must be followed in order to confer
jurisdiction upon the court. Due process does not require judicial
review of an administrative decision.
VI. OPEN MEETINGS AND OPEN RECORDS ACT
A. Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996).
NATURE AND DISPOSITION OF THE CASE:
Declaratory judgment action by Harris County District Attorney
requesting that information and records contained in case files were
not subject to disclosure under Open Records Act. Travis County
District Court (Dietz) found Act required disclosure. Austin Court of
Appeals (Powers, J.) affirmed. Supreme Court (Baker) reversed and
rendered judgment that Holmes need not disclose the subject files.
KEY POINT:
Open Records -- District Attorney -- Governmental Body: The Court
rejects Holmes' argument that the District Attorney is a part of the
judiciary. The Court holds that the District Attorney's office is a
governmental body within the meaning of the Open Records Act and is
subject to its provisions.
Open Records -- Exemption -- Closed Files: The Court finds that TEX.
GOV'T. CODE § 552.108 applies equally to a prosecutor's internal
records relating to law enforcement or prosecution for both open and
closed files.
Open Records -- Attorney General Opinions -- Binding Effect: While
attorney general opinions are persuasive, they are not controlling on
the courts.
B. Lett v. Klein Independent School District, 917 S.W.2d 455 (Tex.
App.--Houston [14th Dist.] 1996, writ filed).
NATURE AND DISPOSITION OF THE CASE:
Declaratory judgment by school district seeking declaration that
certain records were not subject to disclosure under Open Records Act.
Harris County District Court (Link, J.) granted summary judgment for
school district. Houston Court of Appeals (Murphy, C.J., and Amidei
and Anderson, JJ.) reversed and rendered.
KEY POINT:
Open Records -- Creation of Documents in Response to Parent's
Complaint: Parent sought copies of any and all documents, memoranda,
investigative notes, and statements prepared by named school
personnel for an approximate one-year period which in any way
pertained to his complaint about his child's low conduct grade
received from a choir teacher. The Court held that since the
requested documents were of the type discoverable in litigation, and
did not concern policy-making, but only implement existing policy,
the information was subject to disclosure under the Act.
C. Mayes v. City of De Leon, 922 S.W.2d 200 (Tex. App.--Eastland 1996,
writ filed).
NATURE AND DISPOSITION OF THE CASE:
Former police chief sought declaratory judgment that city violated
Open Meetings Act. Commanche County District Court (Morgan, J.)
entered summary judgment for City. Eastland Court of Appeals (Arnot,
C.J., and Wright and Hill, JJ.) reversed and rendered.
KEY POINTS:
Open Meetings -- Adequacy of Notice -- Special Interest to the Public:
The City agenda contained an item indicating that the council would
convene an executive session "to consider the employment and
evaluation of city personnel." The Court holds that the City's notice
must provide full and adequate notice of the subject matter,
particularly when the subject is of special interest to the public.
The Court then holds that the termination of a city's police chief is
a matter of special interest to the public that does not fall into
the category of ordinary personnel matters. Therefore, the City's
agenda relating to "personnel" was not sufficient to meet the
"subject" requirements of the Open Meetings Act.
Open Meetings Violations -- Subsequent Act: A prior action taken in
violation of the Open Meetings Act may not be retroactively ratified.
D. Fielding v. Anderson, 911 S.W.2d 858 (Tex. App.--Eastland 1995,
writ denied).
NATURE AND DISPOSITION OF THE CASE:
Suit by city councilman against former executive director of local
rapid transit authority seeking return of monies paid pursuant to
severance agreement. Dallas County District Court (Brown, J.) granted
director's motion for summary judgment. Eastland Court of Appeals
(Arnot, C.J., Dickenson, J. and McCloud, S.J.) affirmed.
KEY POINTS:
Open Meetings Act -- Notice Accessible to Public: Although notice was
posted at the courthouse (which was closed to the public on Saturday
and Sunday), it also was posted at the agency's administrative offices
which was available to the public on both Saturday and Sunday. Court
holds that such public accessibility did comply with the requirements
of the Open Meetings Act (Section 3A(f)).
Open Meetings Act -- Void Actions -- Subsequent Acts: While actions
taken by a governmental body in violation of the Open Meetings Act are
void and cannot be ratified, the purpose of the Act is not to prevent
an agency from correcting a void act. The purpose of the Open
Meetings Act is to ensure that the public has the opportunity to be
fully apprised about government transactions. An act taken by an
agency in compliance with the Open Meetings Act is valid, even if the
action is the same as taken in a prior meeting that did not comply
with the Open Meetings Act.
E. United Independent School District v. Gonzales, 911 S.W.2d 118
(Tex. App.--San Antonio 1995, writ filed).
NATURE AND DISPOSITION OF THE CASE:
Appeal of school board's decision to expel student for assaulting
teacher. Webb County District Court (Flores, J.) declared expulsion
void. San Antonio Court of Appeals (Rickhoff, Lopez and Green, JJ.)
reversed and rendered.
KEY POINT:
Open Meetings -- Recess to Hold Executive Closed Session -- Failure to
Object: If the parent or guardian of a child makes a written request,
the school board is required to consider any disciplinary matter in
open session. However, it is not a violation of the Open Meetings Act
to recess a mandatory open meeting to deliberate in closed session if
the person who had the right to demand the open session initially did
not timely object.
F. Charlie Thomas Ford, Inc. v. A. C. Collins Ford, Inc., 912 S.W.2d
271 (Tex. App.--Austin 1995, writ dism'd as moot).
NATURE AND DISPOSITION OF THE CASE:
Appeal of decision of the Texas Motor Vehicle Commission denying
application to relocate dealership. Travis County District Court
(Dellana, J.) dismissed all but one claim for want of jurisdiction,
and vacated and remanded remaining claim. Austin Court of Appeals
(Powers, Aboussie and B. A. Smith, JJ.) reversed in part, vacated and
rendered, and affirmed in part.
KEY POINTS:
Open Meetings -- Reconsideration of Decision After Affected Parties
Leave: On September 6, 1989, the Commission heard oral argument by the
parties and then voted to deny the application. Subsequent to the
vote, the parties' lawyers were given permission to be excused from
the meeting. Immediately thereafter, the Commission reconsidered the
prior action and voted to amend the hearing officer's proposed
findings of fact and to overrule the findings of fact and conclusions
of law proposed by the contesting parties. The Court stated that
although it was obvious that the lawyers were induced through mistake
to leave the hearing room before the Commission determined every
aspect of the contested case, nevertheless such action did not convert
an open meeting to a closed meeting in violation of the Act. Rather,
the Court holds that the purposes of the Act "are to enable public
access to and to increase public knowledge of government
decisionmaking". There is no evidence or suggestion that any member
of the public was denied access to the meeting or an opportunity to
acquire knowledge of government decisionmaking.
Open Meetings -- Notice of Items to be Considered: The Commission's
notice posted by the Secretary of State did not prescribe by name
Collins' contested case. Rather, the notice referred generally to
"Proposals for Decision and Other Actions--License and Other Cases".
The Court held the reference to proposals for decision and other
actions in license cases was sufficient as a matter of law to apprise
the public that the purposes of the meeting included the Commission's
consideration of proposals for decision in dealer-licensing cases.
Open Meetings -- Texas Register Notice: Appellant argued that the
notice of meeting contained in the Texas Register did not mention the
Collins case by name and the notice was published in the September 5,
1989 issue, or less than twenty-four hours before the Commission
meeting. The Court holds that nothing in the relevant statute
suggests that any insufficiency in the timing or contents of a notice,
as published in the Texas Register, gives rise to private rights.
G. Piazza v. City of Granger, 909 S.W.2d 529 (Tex. App.--Austin 1995,
no writ).
NATURE AND DISPOSITION OF THE CASE:
Terminated police officer brought action against city for violation of
Open Meetings Act. Williamson County District Court (Stubblefield,
J.) entered take nothing judgment in favor of City. Austin Court of
Appeals (Carroll, C.J., and Aboussie and Jones, JJ.) reversed and
remanded.
KEY POINTS:
Open Meetings -- Emergency Posting: Section 3A(h) of the Act provides
for a two-hour posting of notice of a meeting in case of emergency or
public necessity. For notice purposes, the Court holds that the
actual existence of an emergency only secondarily affects the notice
provision of section 3A(h); even if an emergency as designated by
section 3A(h) exists, notice of an emergency meeting is nevertheless
defective if it fails to clearly identify the existing emergency.
Open Meetings -- Emergency to be Clearly Identified: An emergency is
identified clearly when the reason for the emergency is stated in the
notice. Additionally, section 3A(h) implies that the reason for the
emergency, in order to clearly identify an emergency or urgent public
necessity, must describe (1) an imminent threat to public health and
safety or (2) a reasonably unforeseeable situation requiring
immediate action.
Open Meetings -- Emergency Notice -- Lack of Confidence: The only
emergency stated in the notice was the fact that "the council have a
lack of confidence in [Piazza]." The Court holds as a matter of law
that the reason "lack of confidence" in a police officer, without
further detail, does not identify clearly an emergency or urgent
public necessity required by section 3A(h) to authorize less than
seventy-two hours' notice of a meeting held by the city council.
Open Meetings -- Actions Not in Compliance are Voidable: Actions
taken by governmental body at a meeting convened in violation of the
Open Meetings Act are voidable.
VII. OTHER RECENT DECISIONS
A. Holmans v. Transource Polymers, Inc., 914 S.W.2d 189 (Tex. App. --
Fort Worth 1995, writ filed).
NATURE AND DISPOSITION OF THE CASE:
Former employee brought common-law debt action against former employer
for alleged unpaid sales commission and expenses. Denton County
District Court (Vick, J.) dismissed for lack of subject matter
jurisdiction. Fort Worth Court of Appeals (Day, Livingston and
Holman, JJ.) reversed and remanded.
KEY POINT:
Texas Payday Law -- Exhaustion of administrative remedies --
Common-law claim: The controlling issue in this case is whether the
trial court correctly interpreted the Payday Law; that is, whether the
Texas Legislature intended for the administrative procedure provided
by the Payday Law to be the mandatory and exclusive remedy for wage
claimants, effectively repealing the common law. The Court concludes
that the Legislature intended the Payday Law to be cumulative of the
common law and stand as an alternative remedy a wage claimant may
seek. Should a claimant choose to file a claim under the statute,
utilize its remedial scheme, and appeal the final administrative
order, then the claimant properly is required to abide by the
statute's provisions. We do not, however, construe the Payday Law as
preempting a claimant, such as Appellant, from choosing to pursue his
claim as a common-law action in the courts of this state.
B. Graham v. Texas Board of Pardons and Paroles, 913 S.W.2d 745 (Tex.
App--Austin 1996, writ dism'd w.o.j.).
NATURE AND DISPOSITION OF THE CASE:
Prisoner sought declaratory judgment and injunction requiring Florida
Pardons and Parole to hold hearing to consider his petition for
executive clemency. Travis County District Court (Lowry, J.) denied
relief. Austin Court of Appeals (Powers, Aboussie and Kidd, JJ.)
affirmed.
KEY POINT:
Clemency hearing -- Not Required by APA: The APA affords a party the
right to a hearing before an agency in a contested case, defined as a
proceeding in which the legal rights, duties, or privileges of a party
are to be determined by a state agency. In a clemency petition, the
Board does not determine the prisoners' rights or privileges.
Instead, the Board determines whether a prisoner is entitled to
clemency as a matter of grace (not right or privilege) notwithstanding
judicial determination that the prisoner has no right to liberty.
Because the Board does not determine a prisoner's rights or
privileges, a clemency petition does not come within the definition of
a contested case and a prisoner is not entitled to a hearing under the
APA.
C. Boswell v. Brazos Electric Power Cooperative, Inc., 910 S.W.2d 593
(Tex. App. -- Fort Worth 1995, writ denied).
NATURE AND DISPOSITION OF THE CASE:
Condemnation brought by electric coop. Parker County Court at Law
(Barker and Wright, JJ.) granted partial summary judgment for
cooperative and entered final judgment awarding compensation for
taking of property. Fort Worth Court of Appeals (Cayce, C.J. and
Livingston and Chuck Miller, JJ.) affirmed.
KEY POINT:
Agency Final Order -- Construction by a Court: In order for the court
to determine whether the cooperative exceeded the authority granted by
the PUC to construct a transmission line, the court must construe the
Final Order providing approval for the project. Rules of statutory
construction apply equally to the construction of an administrative
order. Therefore, the task for this Court is to ascertain the intent
of the administrative body that promulgated the order. According to
the rules of statutory construction, terms used within a statute, or
as in this case an administrative order, should be given their plain
and ordinary meaning.
