Cole v. Texas Employment Commission, 17954

• Decision Date: 23 February 1978
• Docket Number: No. 17954,17954
• Citation: 563 S.W.2d 363
• Parties: Randolph COLE, Appellant, v. TEXAS EMPLOYMENT COMMISSION and York Enterprises of Texas, Inc., Appellees.
• Court: Texas Court of Appeals

Page 363

563 S.W.2d 363

Randolph COLE, Appellant, v. TEXAS EMPLOYMENT COMMISSION and York Enterprises of Texas, Inc., Appellees.

No. 17954.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 23, 1978.

Rehearing Denied March 23, 1978.

Kay Fulgham, Tarrant County Legal Aid Foundation, Fort Worth, for appellant.

John L. Hill, Atty. Gen. of Texas, and Gayle Johnson Cipriano, Asst. Atty. Gen., Austin, for appellee Texas Employment Commission.

Ken Carpenter, Arlington, for appellee York Enterprises.

OPINION

MASSEY, Chief Justice.

Randolph Cole, claimant for unemployment compensation under provisions of the Texas Unemployment Compensation Act, V.A.T.S. Title 83, "Labor", Chapter 14, "Unemployment Compensation", Art. 5221b-1, et seq. appealed from denial of benefits by the Texas Employment Commission to the County Court at Law, Tarrant County, Texas. Therein was further denial of his claim by a judgment. Therefrom he perfected his appeal.

We affirm the judgment.

At the outset we are confronted by a challenge of both our own and the jurisdiction of the County Court at Law (where the challenge was rejected) because Cole's appeal by the filing of his suit in the County Court at Law was one day early. Because of such premature filing, says the Commission (and by inference also Cole's former employer, York Enterprises of Texas, Inc.) the County Court at Law did not acquire jurisdiction to entertain any appeal from the final ruling and order of the Commission and should not have entertained Cole's suit. The ground is obviously technical; presenting the proposition that Cole has wholly lost his case because he did not file his suit "within ten (10) days after the decision of the Commission has become final, and not before, . . ." (emphasis supplied) as is provided by Art. 5221b-4(i), "(Claims for benefits) Court Review".

We decline to dismiss the case for reasons to be stated. Before amendment in 1955 (see General and Special Laws of Texas, 54th Legislature, Regular Session, 1955, Chapter 116, p. 399, et seq. and especially p. 402) the material part of the Act provided that a claimant was entitled to review of his claim in court if "Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction . . . etc." The important words "and not before" were added by the 1955 amendment.

Before the 1955 amendment the Supreme Court had held that because of ambiguity in pertinent parts of the Act a suit prematurely filed as an appeal from the decision of the Commission did not have the effect of defeating the jurisdiction of the court in which it was filed merely because it was premature; that the suit was nevertheless effective and invoked the jurisdiction of the court to hear and decide the case presented. Texas Employment Commission v. Steward Oil Co., 153 Tex. 247, 267 S.W.2d 137 (1954).

In the present instance the same question is presented with the same provision of the Act advanced because at the first Legislative session after the aforementioned opinion of the Supreme Court, it was deemed appropriate to amend the part of the Act with which we are concerned by inserting the words "and not before".

As presently constituted, and in effect at all times material to this case was V.A.T.S. Art. 5221b-4, "Claims for benefits", which for our purposes made material provisions as follows "(a) Filing: Claims for benefits shall be made in accordance with such regulations as the Commission may prescribe. . . .

"(b) If such individual . . . has filed . . . an examiner shall make a determination . . . and shall mail a copy of the determination to the claimant . . . . Unless the claimant . . . files an appeal . . . within twelve (12) calendar days after such . . . determination shall be final for all purposes . . . provided . . . unless an appeal therefrom is filed . . . within twelve (12) calendar days after a copy of such redetermination was mailed to his . . . last known address . . . .

"(c) Appeals: Unless such appeal is withdrawn, an appeal tribunal, after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the determination of the examiner. The parties to the appeal shall be duly notified of such tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the Commission, unless within ten (10) days after the date of mailing of such decision, further appeal is initiated pursuant to subsection (e) of this Section.

"(d) Appeal Tribunals: To hear and decide disputed claims, the Commission, if it is necessary to insure prompt disposal of cases on appeal, shall establish one or more impartial appeal tribunals consisting in each case of a salaried examiner.

"(e) Commission Review: The Commission may on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. The Commission may remove to itself or transfer to another appeal tribunal the proceedings on any claim pending before an appeal tribunal. Any proceeding so removed to the Commission shall be heard by a quorum thereof. The Commission shall promptly mail to the parties before it a copy of its findings and decision.

"(f) Procedure: The manner in which disputed claims shall be presented, the reports thereon required from the claimant and from employers, or other individuals or organizations, and the conduct of hearings and appeals shall be in accordance with rules or regulations prescribed by the Commission for determining the rights of the parties. A full and complete record shall be kept of all proceedings in connection with a disputed claim. All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed.

"(h) Appeal to Courts: Any decision of the Commission shall become final ten (10) days after the date of mailing thereof, unless, within such ten (10) days, the appeal is reopened by Commission order or a party to the appeal files a written motion for rehearing, and judicial review of any final decision of the Commission shall be permitted only after any party claiming to be aggrieved thereby has exhausted his remedies (not including a motion for rehearing) before the Commission as provided by this Act. The commission shall be deemed to be a party to any judicial action involving any such decision and may be represented in any such judicial action by any qualified attorney who is a regular salaried employee of the Commission and has been designated and appointed for that purpose by the Attorney General of Texas.

"(i) Court Review: Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction in the county of claimant's residence against the Commission for the review of its decision, in which action any other party to the proceeding before the Commission shall be made a defendant, . . . ." (Emphasis supplied.)

It is obvious that, if the Commission's jurisdiction may be said to have ceased by perfection of an appeal therefrom into court, premature filing of the case in court by a single day would cause the Commission to be unable to reopen the case on its own motion on the tenth day after its decision, or to entertain a motion for rehearing by the Commission because of suit having been filed. Yet there is provision that judicial review of any final decision of the Commission shall be permitted after any party claiming to be aggrieved thereby has exhausted his remedies before the Commission.

In the case before us the Commission did not desire to reopen the case before it on its own motion at any time, and Mr. Cole's adversary, his former employer, York Enterprises of Texas, Inc., never desired any rehearing for it was completely victorious by the ruling and decision of the Commission. Cole, as a party aggrieved, could have filed a motion for rehearing before the Commission on the tenth day but chose not to do so. Instead, he filed his suit in court on the tenth day; a suit as applied to which there would have been no question had he filed his suit on the eleventh day. Of course the "judicial review" took place after such tenth day.

Hence the question: Assuming for the purpose that to receive a judgment for unemployment compensation is or would be the right of claimant, Cole, has he lost his right because he was one day early in filing his case in court? Our holding is that Cole has not lost his right; that the potential jurisdiction of the trial court in which he prematurely filed his suit became vested, as distinguished from potential, on the eleventh day following the ruling and decision of the Commission, because nothing occurred through action of the Commission or Cole's former employer operative to effect a delayed vestment of the court's jurisdiction or of Cole's qualification to proceed; that Cole became "qualified" as a party plaintiff in the court on the same eleventh day; that the subsequent acquisition of jurisdiction of the parties defendant having been acquired made of the case before the court in which suit had been filed one ripe for its final adjudication. The foregoing is by our statutory construction of the pertinent parts of the Act.

We recognize that a rather remarkable change was made in the rules relating to statutory construction by Acts of the 60th Texas Legislature, p. 1036, ch. 455, effective September 1, 1967. Under V.A.T.S. Title 87, "Legislature", Art. 5429b-1, "Statutory revision program, Sub-Chapter C., Construction of Statutes", (Art. 5429b-2) § 3.01, et seq. To...