Southwest Airlines Co. v. Texas High-Speed Rail Authority
| Decision Date | 15 December 1993 |
| Docket Number | HIGH-SPEED,No. 3-92-151-CV,3-92-151-CV |
| Citation | 867 S.W.2d 154 |
| Parties | SOUTHWEST AIRLINES CO., Appellant, v. TEXASRAIL AUTHORITY and Texas TGV Consortium, Appellees. |
| Court | Texas Court of Appeals |
C. Robert Heath, Thomas M. Pollan, Bickerstaff, Heath & Smiley, L.L.P., Austin, for appellant.
Dan Morales, Atty. Gen., Douglas Fraser, Jose Manuel Rangel, Asst. Attys. Gen., Austin, for Texas High -Speed Rail Authority.
Douglas W. Alexander, Brown McCarroll & Oaks Hartline, Austin, for TGV Consortium.
Before POWERS, ABOUSSIE and B.A. SMITH, JJ.
The Court's opinion of June 9, 1993, is withdrawn, and this opinion is substituted in its place.
Appellant Southwest Airlines Company appeals from an order of the district court of Travis County dismissing for lack of jurisdiction Southwest's suit for judicial review of an order of appellee Texas High-Speed Rail Authority. We will affirm the district court's order of dismissal. 1
In 1989, the Legislature established the Authority "to award a franchise to the private sector to construct, operate, and maintain a high-speed rail facility, if the authority determines that the award of a franchise is for the public convenience and necessity." Texas High-Speed Rail Act, Tex.Rev.Civ.Stat.Ann. art. 6674v.2, § 2(b) (West Supp.1993) [hereinafter Act]. Appellee Texas TGV Consortium and Texas FasTrac, Inc. 2 filed applications for a franchise to construct and operate a high-speed rail system. See Act § 23 (West Supp.1993).
The Authority granted Southwest party status to intervene in the proceeding before the agency as a person with a justiciable interest. See APA § 2001.003; 43 Tex.Admin.Code §§ 85.301-.302 (Supp.1993-1994). After a hearing, the Authority issued on May 28, 1991, its written order awarding the franchise to Texas TGV. Southwest timely filed a motion for rehearing in the agency, which was overruled by operation of law. See APA § 2001.146; 43 Tex.Admin.Code § 85.804 (Supp.1993-1994). On August 9, 1991, Southwest filed a petition for judicial review of the agency order in the district court of Travis County.
The Authority answered and filed a plea to the jurisdiction and a plea in abatement; Texas TGV filed its petition in intervention asserting similar pleas. By their pleas to the jurisdiction, appellees asserted that the district court was without jurisdiction because the Act does not provide for judicial review of the Authority's decisions and Southwest has no inherent right to review of the order. Appellees further asserted that Southwest had no standing to complain of the agency decision. After a hearing, the district court concluded that it was without jurisdiction and that Southwest had no standing and dismissed the cause. Southwest has perfected its appeal 3 to this Court from the order of dismissal.
In its second point of error, Southwest argues that the district court erred in dismissing the cause for want of jurisdiction. Southwest submits that the district court has jurisdiction on either of two bases: (1) APA section 2001.171 provides for judicial review of the Authority's order; or (2) Southwest has a right to judicial review, apart from any statutory entitlement, because it has a property right that the Authority's order affects. The Act itself does not provide for judicial review of the Authority's orders, rulings, or decisions.
No right of judicial review from the action of an administrative agency exists unless a statute provides for such review, the action violates constitutional procedural due process, or the constitution waives the state's immunity from suit. See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); Pickell v. Brooks, 846 S.W.2d 421, 424-25 & nn. 7-9 (Tex.App.--Austin 1992, writ denied); cf. Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex.1967); Motorola, Inc. v. Bullock, 586 S.W.2d 706, 708 (Tex.Civ.App.--Austin 1979, no writ). 4 Although the reasoning behind this general rule is usually unstated, the rule is a necessary corollary to the doctrine of governmental immunity. See Pickell, 846 S.W.2d at 424-25 & nn. 7-9.
Absent specific legislative authorization, persons aggrieved by an administrative agency's action have no recourse in the courts due to the first principle of the doctrine of governmental immunity--the state as sovereign cannot be sued without its permission. E.g., Hosner v. De Young, 1 Tex. 764, 769 (1847); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.--Austin 1991, writ denied). The doctrine bars a suit for judicial review against the state unless the state has expressly given its consent to be sued. E.g., Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex.1970); Pickell, 846 S.W.2d at 424. A suit against an agency of the state is considered to be a suit against the state. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). The second principle of the doctrine of governmental immunity is that the state has immunity from liability even though the state has consented to be sued. Missouri Pac. R.R., 453 S.W.2d at 813; Pickell, 846 S.W.2d at 424; Dillard, 806 S.W.2d at 592.
In a footnote in its motion for rehearing, Southwest identifies a legislative waiver of immunity from suit--section 10(a) of the Act ("The board may sue and be sued on behalf of the authority."). 5 Act § 10(a) (West Supp.1993). The Act defines the term "board" to mean the board of directors of the Authority. Act § 7(4) (West Supp.1993). The board of directors of the Authority consists of the individuals described in section 4 of the Act. Act § 4 (West Supp.1993). Southwest did not sue the board; rather it sued the Authority itself, an action that does not strictly comply with the legislature's limited waiver of governmental immunity from suit. Although the Authority did not specially except to the capacity in which it was sued, the Authority did file a plea to the jurisdiction correctly stating that the Act does not provide for judicial review of decisions of the Authority. 6 Southwest did not amend its pleadings in the trial court to join the proper party, and, thus, cannot rely on the Act's limited waiver of immunity from suit.
Southwest asserts that sections 2001.171 and 2001.178 provide a right to judicial review of the Authority's order and presumably a waiver of governmental immunity from suit: "A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter." APA § 2001.171. "This subchapter is cumulative of other means of redress provided by statute." APA § 2001.178. 7
In Motorola, Inc., however, this Court concluded that former section 19 of APTRA, the predecessor of APA section 2001.171, is a procedural provision that does not extend or limit the jurisdiction of the courts. 8 Motorola, Inc., 586 S.W.2d at 708; see Dan Ingle, Inc. v. Bullock, 578 S.W.2d 193, 193-94 (Tex.Civ.App.--Austin 1979, writ ref'd); Administrative Procedure and Texas Register Act, 64th Leg., R.S., ch. 61, § 19, 1975 Tex.Gen.Laws 136, 146 (Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19, since amended and repealed). Section 2001.171, therefore, does not create a right of judicial review by generally waiving the state's immunity from suit, but instead sets out the procedure for a suit for judicial review authorized pursuant to another statutory provision. See Texas Catastrophe Property Ins. Ass'n v. Council of Co-Owners of Saida II Towers Condominium Ass'n, 706 S.W.2d 644, 646 (Tex.1986) (); Bullock v. Adickes, 593 S.W.2d 805, 808 (Tex.Civ.App.--Austin 1980, writ ref'd n.r.e.) (APTRA provides procedural basis for review of agency action). But see Moore v. Texas Employment Comm'n, 565 S.W.2d 246, 247 (Tex.Civ.App.--Houston [14th Dist.] 1978, no writ) (APTRA allows judicial review of action for which workers' compensation statute does not).
Southwest next argues that it has a right to judicial review because the Authority's order adversely affects a vested property right of Southwest. Although Southwest does not explicitly state the argument in due-process terms, we presume Southwest bases its argument on a Fourteenth Amendment due-process analysis. This analysis begins with a determination whether the state's deprivation of a personal interest warrants procedural due-process protection. The interest may be either a "core" interest, such as a liberty or vested property right, or an interest that stems from an independent source, such as state law. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Pickell, 846 S.W.2d at 426.
Southwest asserts that a "core" interest, a vested property right, gives it a right to judicial review of the agency order. We understand Southwest to base its argument on two premises: the existence of a certificate from the Civil Aeronautics Board ("CAB") and a right to protection from illegal competition.
In its motion for intervention in the agency proceedings, Southwest stated that it provides air transportation between the cities of Dallas, Houston, San Antonio, and Austin pursuant to a CAB certificate. See 49 U.S.C. app. § 1371 (1988). The CAB's route authority, however, ceased to exist effective December 1, 1981. 49 U.S.C. app. § 1551 (1988). On the record before this Court, 9 we cannot conclude that the CAB certificate creates a vested property right on which to base a suit for judicial review. See generally White Top Cab Co. v. City of Houston, 440 S.W.2d 732, 734-35 (Tex.Civ.App.--Houston [14th Dist.] 1969, no writ).
Southwest next asserts that it may protect its business from "illegal competition." Southwest claims that the Authority awarded the...
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