Simmons v. Texas State Bd. of Dental Examiners

• Decision Date: 08 July 1996
• Docket Number: No. 95-1272,95-1272
• Citation: 925 S.W.2d 652
• Parties: 39 Tex. Sup. Ct. J. 932 Troy W. SIMMONS, D.D.S., Petitioner, v. TEXAS STATE BOARD OF DENTAL EXAMINERS, Respondent.
• Court: Texas Supreme Court

Page 652

925 S.W.2d 652

39 Tex. Sup. Ct. J. 932

Troy W. SIMMONS, D.D.S., Petitioner, v. TEXAS STATE BOARD OF DENTAL EXAMINERS, Respondent.

No. 95-1272.

Supreme Court of Texas.

July 8, 1996.

Deborah J. Race, Tyler, Va Lita F. Waits, Houston, for petitioner.

Jorge Vega, Dan Morales, Brenda Loudermilk, Austin, for respondent.

PER CURIAM.

On September 16, 1993, the State Board of Dental Examiners revoked the dental license of Troy W. Simmons, D.D.S. Simmons sought judicial review of the revocation in district court, but his action was dismissed for lack of jurisdiction. The court of appeals affirmed the trial court's dismissal. --- S.W.2d ----, 1995 WL 510598. For the reasons stated herein, we reverse the judgment of the court of appeals and remand the case for trial on the merits.

The Board notified Simmons of the license revocation on September 20, 1993. On the same day, Simmons filed a motion for rehearing with the Board. With that motion still pending, Simmons sought judicial review of the Board's ruling in district court on September 30, 1993. Realizing, however, that a suit for judicial review required the Board's overruling of his motion for rehearing, Simmons moved on October 14, 1993 to stay the trial court proceedings until he had exhausted his administrative remedies. Four days later, the trial court granted his motion to stay.

The motion for rehearing was overruled by operation of law on November 4, 1993. Thirteen days later, Simmons moved that the trial court reinstate his action for judicial review. Refusing to take jurisdiction, however, the trial court denied the motion, granted the Board's plea to the jurisdiction, and dismissed the suit.

Relying largely on this Court's opinion in Lindsay v. Sterling, 690 S.W.2d 560 (Tex.1985), the court of appeals affirmed the trial court's judgment. --- S.W.2d at ----. We hold, however, that the facts of this case are distinguishable from those in Lindsay.

In Lindsay, a county judge denied the renewal of a wine-and-beer retailer's license. 690 S.W.2d at 561. The licensee filed a motion for rehearing, but sought review in district court before the motion had been overruled. Id. at 563. This Court held that because a motion for rehearing must be overruled before an agency order is appealable, the licensee never invoked the district court's jurisdiction. Id. at 563-64.

The licensee in Lindsay alleged that she faced a conflict between the Alcoholic Beverage Code and the predecessor to the Administrative Procedure Act (APA), the Administrative Procedure and Texas Register Act (APTRA). Id. at 563. The Alcoholic Beverage Code provides that an applicant may appeal to district court within thirty days after an administrative licensing decision becomes final. TEX. ALCO. BEV.CODE §§ 11.67(b)(1), 61.34(a). At that time, APTRA allowed administrative agencies forty-five days to rule on a motion for rehearing. Lindsay, 690 S.W.2d at 563. APTRA also provided that a decision is not appealable until such a motion is overruled. Id.

It appeared in Lindsay, therefore, that the two statutes were in conflict: while a licensee waited forty-five days for the agency to consider the motion for rehearing, the thirty-day period for appeal to the district court would expire. This Court held, however, that the statutes were not in conflict. As the thirty-day period under the Alcoholic Beverage Code did not begin until the agency order became final, and as the order was not final until the overruling of the motion for rehearing, the thirty-day period did not commence until after the motion was overruled. Id.

Like the licensee in Lindsay, Simmons argues that this case presents us with a conflict between statutes. Under the Dental Practice Act (DPA), a dentist has thirty days from the date of the license-revocation notice to seek judicial review in district court. See TEX.REV.CIV. STAT. art. 4548h, § 3(a). The APA mandates that an aggrieved person must file a timely motion for rehearing to the Board before filing an appeal to the district court. See TEX. GOV'T CODE § 2001.145(a); see also Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988) (holding that dentists' disciplinary actions and appeals are governed by APTRA, APA's predecessor). The APA further provides administrative agencies forty-five days to act on a motion for rehearing before it is overruled by operation of law. TEX. GOV'T CODE § 2001.146(c).

Simmons alleges that he filed his petition in district court before the Board had overruled his motion for rehearing because had he waited, he...