Simmons v. Texas State Bd. of Dental Examiners, 12-94-00174-CV
| Decision Date | 30 August 1995 |
| Docket Number | No. 12-94-00174-CV,12-94-00174-CV |
| Parties | Troy W. SIMMONS, Appellant, v. TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellee. |
| Court | Texas Court of Appeals |
VaLita Waits-Abraham and Deborah J. Race, Tyler, for appellant.
Dan Morales; Karen Pettigrew; and Suzanne Formby Marshall, Austin, for appellee.
Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.
This is an appeal from a suit seeking judicial review of an order of the Texas State Board of Dental Examiners. On September 16, 1993, following a series of administrative proceedings, the Texas State Board of Dental Examiners ("the Board") revoked the dental license of Appellant, Troy W. Simmons ("Simmons"), pursuant to the provisions of the DENTAL PRACTICE ACT. TEX.REV.CIV.STAT.ANN. art. 4543, et seq. (Vernon Supp.1994). Simmons appealed the Board's decision to district court for judicial review. The district court dismissed the case for lack of jurisdiction on the grounds that Simmons had not complied with the judicial review requirements of Section 2001 of the ADMINISTRATIVE PROCEDURE ACT of the TEXAS GOVERNMENT CODE. 1 Hence, Simmons appeals to this Court. We will affirm.
Because the procedural prerequisites for judicial review are controlling, a review of the pertinent steps taken by the parties is necessary. From the record, it appears that on September 20, 1993, the Board gave notice of its action revoking Simmons' dental license by mailing a copy of its order to his attorney. On the same date, Simmons filed a motion for rehearing with the Board. On September 30, 1993, while the motion for rehearing was still pending, Simmons initiated judicial review by filing his petition in state district court. Realizing that this appeal had been prematurely filed, Simmons filed a "Motion to Stay Proceedings" in the district court case on October 14, 1993, requesting that the court stay the proceeding until Simmons had exhausted all of his administrative remedies. The court granted this motion on October 18, 1993.
In response to Simmons' petition for judicial review, the Board filed its original answer on October 25, 1993, in which it challenged the jurisdiction of the district court. The Board claimed that Simmons had not strictly followed the judicial review procedures prescribed by Section 2001 of the APA; therefore, Simmons did not successfully invoke the district court's jurisdiction.
On November 4, 1993, Simmons' motion for rehearing was overruled by operation of law. Simmons did not refile the suit for judicial review with 30 days of this ruling. Instead, on November 17, 1993, Simmons filed a "Motion to Reinstate Appeal," pointing out to the court that he had exhausted his administrative remedies and was seeking to reinstate the case, which had been prematurely filed. The court set a hearing on the motion for January 6, 1994. However, because Simmons and his attorney failed to appear, the court denied the motion.
On January 31, 1994, Simmons filed a motion to set aside the order of January 6, 1994, and again requested the court to reinstate the appeal previously filed. Simmons alleged that his failure to appear at the January 6 hearing was the result of a mistake, and was not an intentional act or the result of conscious indifference. It appears from the affidavits attached to the motion that Simmons' attorney erroneously believed that the hearing was at 1:30 p.m., when in fact it was scheduled and heard at 1:00 p.m. When Simmons' attorney appeared at 1:30, according to her affidavit: When counsel inquired of the court if he had made a decision, the court replied "I denied the motion ... and I meant what I said." The record does not reflect a separate action by the trial court on Simmons' motion to set aside the January 6, 1994 order and to reconsider reinstatement. Rather, on February 11, 1994, the trial court held a hearing on the Board's plea to the jurisdiction, granted it and dismissed the suit.
In points of error one, three, and five, Simmons contends that the court erred in dismissing the appeal for lack of jurisdiction. He claims that he substantially complied with the provisions of the APA, and that his petition for judicial review should be deemed to have been filed on the date of, and subsequent to, the date on which the motion for rehearing was overruled by operation of law. Further, he claims that the court erred in denying the motion for reinstatement of the appeal. The Board argues that the method prescribed by the Legislature for transferring controversy from the administrative branch to the judicial branch must be strictly followed in order to confer jurisdiction on a reviewing court. We agree.
An appeal from an administrative agency is not a matter of right. Texas Alcoholic Beverage Commission v. Sfair, 786 S.W.2d 26, 27 (Tex.App.--San Antonio 1990, writ denied). Due process does not even require judicial review of an administrative decision. Blair v. Texas Dept. of Human Services, 837 S.W.2d 670, 671 (Tex.App.--Austin 1992, writ denied). However, when judicial review is set out by statute, its provisions must be strictly complied with in order to vest the district court with jurisdiction. Sfair, 786 S.W.2d at 27.
In Texas, the APA controls the steps necessary to perfect an appeal from an administrative agency to the courts. Texas State Bd. of Pharmacy v. Kittman, 550 S.W.2d 104, 106 (Tex.Civ.App.--Tyler 1977, no writ). Moreover, the Legislature has specifically stated that the APA applies to proceedings brought pursuant to the DENTAL PRACTICE ACT. TEX.REV.CIV.STAT.ANN. art. 4548h, § 2(a) and art. 4549, § 4(b) (Vernon Supp.1994). 2 The pertinent parts of the APA are as follows 2001.144. Decisions: When Final
(a) A decision in a contested case is final:
. . . . .
(2) if a motion for rehearing is filed on time, on the date:
(A) the order overruling the motion for rehearing is rendered; or
(B) the motion is overruled by operation of law;
....
(a) A timely motion for rehearing is a prerequisite to an appeal in a contested case....
(b) A decision that is final under Section 2001.144(a)(2) ... is appealable.
. . . . .
(c) A state agency shall act on a motion for rehearing not later than the 45th day after the date on which the party or the party's attorney of record is notified ... or the motion for rehearing is overruled by operation of law.
....
(a) A person initiates judicial review in a contested case by filing a petition not later than the 30th day after the date on which the decision that is the subject of complaint is final and appealable.
TEX.GOV'T.CODE ANN. §§ 2001.144(a)(2)(B), 2001.145(a) & (b), 2001.146(c), 2001.176(a) (Vernon Supp.1995).
As we interpret the language of the APA, the legislative intent is clear and unambiguous. The Legislature intended that the motion for rehearing must first be overruled before the agency order becomes an appealable final order. The requirement of having a motion for rehearing overruled, thus exhausting administrative remedies, is a jurisdictional prerequisite to judicial review by the district court and cannot be waived by action of the parties. Lindsay v. Sterling, 690 S.W.2d 560, 563-64 (Tex.1985) (); Butler v. State Bd. of Educ., 581 S.W.2d 751, 754-55 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.); Texas Alcoholic Beverage Comm'n v. Lancaster, 563 S.W.2d 380, 381 (Tex.Civ.App.--San Antonio 1978, no writ); Texas State Bd. of Pharmacy v. Kittman, 550 S.W.2d 104, 107 (Tex.Civ.App.--Tyler 1977, no writ).
In the instant case, Simmons properly filed his motion for rehearing before the board on September 20, 1993. The motion was overruled by operation of law forty-five (45) days later, i.e. November 4, 1993. Consequently, November 4, 1993, was the date on which the decision became final and appealable. See TEX.GOV'T CODE ANN. § 2001.144(2)(B). Under Section 2001.176(a), Simmons was then required to file his petition within 30 days of this date in order to obtain judicial review of the matter. Simmons did not file suit within the 30 day time limit. Therefore, the district court did not obtain jurisdiction over the case.
One may sympathize with Simmons because of the effort that was made by the premature filing of his petition for judicial review and efforts to reinstate the petition as of the appropriate date. However, claims based on a similar factual situation were rejected by the Supreme Court in Lindsay. In that case, the petitioner filed a motion for rehearing, but appealed to the district court before the motion for rehearing was overruled. The Court of Appeals apparently had sympathy with this argument, noting that the premature filing was "only a procedural irregularity that does not affect the substantive rights of the party." Lindsay, 690 S.W.2d at 563. The Supreme Court, however, disagreed with that court's position and stated that the Legislature intended that the motion for rehearing must be overruled and the order become final before it is appealable. Id. The Court also stated that the prerequisites to review could not be waived by the parties' actions. Id.
The Third Court of Appeals addressed a similar issue in the context of a rate proceeding appeal in El Paso Elec. Co. v. Public Utility Comm'n, 715 S.W.2d 734 (Tex.App.--Austin 1986, writ ref'd n.r.e.). In that case, the appealing party filed a premature...
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