Texas Department of Protective and Regulatory Services v. Mega Child Care, Inc.

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 02-0728

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Texas Department of

Protective and Regulatory Services, Petitioner

v.

Mega Child Care , Inc., Respondent

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On Petition for Review from the

Court of Appeals for the First District of Texas

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Argued on September 11, 2003

Justice Smith delivered the opinion of

the Court, in which Chief Justice Phillips,

Justice Hecht , Justice O = Neill, Justice Jefferson , Justice Wainwright and Justice Brister joined.

Justice Owen filed a concurring

opinion.

Justice Schneider did not participate

in the decision.

In

Texas, a person may obtain

judicial review of an administrative action only if a statute provides a right

to judicial review, or the action adversely affects a vested property right or

otherwise violates a constitutional right.

See Cont = l

Cas . Ins. Co. v. Functional Restoration Assocs. ,

19 S.W.3d 393, 397 (Tex. 2000); Firemen = s & Policemen = s Civil Serv .

Comm = n

v. Kennedy , 514 S.W.2d 237, 239 (Tex.

1974); City of Amarillo

v. Hancock , 239 S.W.2d 788, 790 (Tex.

1951).

The

question in this case is whether a person who holds a child-care facility

license may obtain judicial review of an administrative decision to revoke the

license. The court of appeals held that

the holder of a child-care facility license has a statutory right to judicial

review. We will affirm.

I

In

1975, the 64th Legislature enacted the Administrative Procedure and Texas

Register Act (APTRA), the first comprehensive statute governing the practices

and procedures of Texas

administrative agencies. See

APTRA, 64th Leg., R.S., ch . 61, 1975 Tex.

Gen. Laws 136 (compiled as Tex . Rev . Civ . Stat . art. 6252-13a). Section 19 of the APTRA was titled A Judicial Review of Contested Cases, @ and subsection (a) thereof provided: A A person who has exhausted all

administrative remedies available within the agency and who is aggrieved by a

final decision in a contested case is entitled to judicial review under

this Act. This section is cumulative of

other means of redress provided by statute. @ Id . '

19(a), at 146 (emphasis added).

In

1993, the APTRA was codified in the Government Code. The part of the APTRA concerning the Texas

Register was transferred to Chapter 2002.

The remainder of the APTRA was transferred to Chapter 2001 and

designated the Administrative Procedure Act (APA). Section 19(a) of the APTRA was divided and

placed in two different sections of the APA. Subchapter G of the APA,

titled A Contested

Cases: Judicial Review, @

contains sections 2001.171 through 2001.178.

Section 2001.171 provides: A 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. @ Tex .

Gov = t Code '

2001.171 (emphasis added). And section

2001.178 provides: A This

subchapter is cumulative of other means of redress provided by statute. @

Id . ' 2001.178.

The

Third Court of Appeals has A repeatedly

held that [section 2001.171 of the APA] is a

procedural provision that does not confer independent subject matter

jurisdiction on the district court. @ Eldercare Props., Inc. v. Tex.

Dep = t

of Human Servs . , 63 S.W.3d 551, 557 (Tex. App. C Austin 2001, pet. denied). For example, in Employees Retirement

System v. Foy , 896 S.W.2d 314, 316 (Tex. App. C Austin

1995, writ denied), the court stated: A Notwithstanding

the generality of section 2001.171, the legislature intended the

judicial-review provisions of the APA to be

procedural only; they do not create a right to judicial review where the right

does not exist by reason of another statute specifically granting the right. @

In contrast, before the provision was codified, the Tenth and Fourteenth

Courts of Appeals concluded that section 19(a) of the APTRA provided a right to

judicial review. See Tex. Health

Facilities Comm = n

v. W. Tex. Home Health Agency , 588 S.W.2d 655, 657 (Tex. Civ . App. C Waco

1979, no writ); Moore v. Tex. Employment Comm = n , 565 S.W.2d 246, 247 (Tex. Civ . App. C Houston

[14th Dist.] 1977, no writ).

In

this case, a divided panel of the First Court of Appeals held that section

2001.171 of the APA provides a right to

judicial review. 81 S.W.3d 470 . We granted review to resolve the conflict

among the courts of appeals regarding the proper interpretation of section

2001.171. Based on its plain language,

we conclude that section 2001.171 provides an independent right to judicial

review of a contested-case decision when the agency = s

enabling statute neither specifically authorizes nor prohibits judicial review

of the decision.

II

On

April 28, 1999,

Mega Child Care, Inc. filed suit against the Texas Department of Protective and

Regulatory Services (TDPRS), a state agency subject to the APA. The petition for judicial review, which was

filed in a Harris County

district court, stated:

On

or about July 22, 1997,

the agency notified Plaintiff to appear before it and show cause why Plaintiff = s license to operate a Day Care

Facility should not be revoked as a result of alleged failure to comply with

minimum standards.

After

a hearing on November 19,

1998, the agency made its decision adverse to Plaintiff and refused

to grant a timely motion for rehearing.

All conditions precedent to Plaintiff = s

right of judicial review of agency = s

decision having been performed or occurred, Plaintiff is entitled to trial de

novo under the authority of Section 19(c) of Article 6252-13a, Revised Civil

Statutes of Texas.

On

May 24, 1999,

the TDPRS filed Defendant = s

Plea to the Jurisdiction, Special Exceptions, and Original Answer. Part I of the pleading, titled A Plea to the Jurisdiction, @ stated:

Defendant

asserts that this court should dismiss this suit because it lacks subject

matter jurisdiction to review the final decision of Defendant which revoked

Plaintiff = s license

to operate a day care due to numerous noncompliances

with the Minimum Standards for Day Care Facilities. A review of the regulations and the statutes

that govern this cause reveals that there has been no provision made by the

legislature for judicial review of the decision of the Department after a full

evidentiary hearing has been held before an administrative law judge, who sits

as the sole fact-finder.

Notwithstanding

the generality of section 2001.171 of the Administrative Procedure Act (APA),

formerly Article 6252-13a, '

19(a) of the Texas Revised Civil Statutes, the legislature intended the

judicial review provisions of the APA to be

procedural only. They did not create a

right to review where the right does not exist by another statute that

specifically grants that right.

[citation to Third Court of Appeals = s

precedent].

For

the foregoing reasons, this court has no subject matter jurisdiction over

Plaintiff = s

Original Petition which seeks judicial review of the Department = s decision dated July 23, 1998. Accordingly, Plaintiff = s

petition must be dismissed for want of jurisdiction.

Part II of the

pleading contained a general denial. In

part III, the TDPRS asserted A its affirmative defense of sovereign

immunity. @ Part IV set forth special exceptions. [1]

On

August 30, 1999,

the trial court granted the TDPRS = s

plea to the jurisdiction and dismissed the suit. On October 6, 1999, the trial court denied Mega Child Care = s motion for new trial. No hearing was held on either the plea or the

motion. On November 3, 1999, Mega Child Care

filed a notice of appeal.

In

the court of appeals, Mega Child Care asserted for the first time the

additional argument that the administrative decision adversely affected a

vested property right and, therefore, it had an inherent right to judicial

review. The TDPRS, in its court of

appeals brief, asserted that A no

statute authorizes judicial review of the Department = s

decision or SOAH = s order @ and that Mega Child Care A failed to raise its constitutional

argument in the court below, therefore it has waived its claim that the

Department = s

decision violated its due process rights. @ The TDPRS did not raise or otherwise discuss

sovereign immunity in its court of appeals brief.

On

June 28, 2002,

the court of appeals reversed and remanded, holding that Mega Child Care had A exhausted all available administrative

remedies and was entitled to judicial review @

under section 2001.171 of the APA. 81 S.W.3d at 473 . The majority did not discuss the Third Court

of Appeals = s

precedent construing section 2001.171. The

dissent asserted that the court should follow the Third Court of Appeals = s precedent and hold that Mega Child

Care had no statutory right to judicial review.

Id . at 477. In addition, the dissent agreed with the

TDPRS that Mega Child Care had waived its constitutional claim. Id .

at 477-78. Accordingly, the dissent

would have affirmed the trial court = s

judgment. Neither the majority nor the

dissent discussed the doctrine of sovereign immunity.

In

its petition for review, the TDPRS asserted that section 2001.171 of the APA

neither grants A an

aggrieved party a substantive right to judicial review of an agency contested

case order @ nor

waives sovereign immunity. In addition,

the TDPRS argued that because section 19(a) of the APTRA was not substantively amended

in 1993 when it was codified, A the

Legislature has accepted the Third Court of Appeals =

construction. @ [2] Finally, the TDPRS contended that Mega Child

Care had A waived

any claim of an inherent right to judicial review by not raising the issue in

the trial court. @ In its response, Mega Child Care asserted

only that it has a statutory right to judicial review under section 2001.171.

In

its brief on the merits, the TDPRS generally reiterated its previous arguments

regarding section 2001.171 of the APA. [3] Relying on the Third Court of Appeals = s precedent, the TDPRS continued to

assert that A [t]he

Legislature has not expressed a clear intent to waive immunity and provide a

substantive right for judicial review in the APA. @

In addition, the TDPRS asserted for the first time that the intent of

its 1997 sunset review legislation was to prohibit judicial review of

administrative decisions revoking a child-care facility license.

In

the statement-of-the-case section of its brief on the merits, Mega Child Care asserted

that A it has a

statutory and constitutional right to judicial review. @ However, the three-page argument section of

the brief did not contain any discussion regarding the asserted constitutional

right to judicial review. In addition,

the brief failed to address the issue regarding the intent of the TDPRS = s 1997 sunset review legislation.

After

the parties filed briefs on the merits, the Court received two amicus curiae

briefs. The Texas Licensed Child Care

Association (TLCCA), a statewide organization of child-care businesses,

submitted a substantial brief in support of Mega Child Care. The TLCCA asserted that A [t]he plain words suggest that [section

2001.171 of the APA] does more than

establish a procedure for judicial review; the section creates the right of

judicial review for those who qualify. @ [4] In addition, the TLCCA contended that A there is no legislative history from

the 1997 legislative session revealing any intention to eliminate judicial

review of a child care license revocation. @ Ron Beal, author of Texas Administrative

Practice and Procedure , [5]

submitted a four-page letter brief in support of Mega Child Care. He joined the TLCCA = s

brief but wrote separately to emphasize his view that A the

legal theory and analysis of the Austin Court of Appeals that established the

doctrine within that circuit that section 2001.171 did not independently confer

subject matter jurisdiction on the district court was and is erroneous. @

Both

the TDPRS and the TLCCA submitted post-submission briefs. In its brief, the TDPRS reasserted its

legislative acceptance argument, argued that section 2001.171 of the APA

A can fairly be read to set forth

necessary C but not

sufficient C conditions

that must be satisfied to qualify for any judicial review that the Legislature

has provided in the enabling statute, @

and contended that the court decisions from states with similar judicial review

provisions were A mixed. @

In its brief, the TLCCA asserted:

Of

the 25 states that have the same APA

language as the Texas APA section 2001.171 C that a party to a contested case is A entitled to judicial review @ C the

Austin Court of Appeals is the only state appellate court, in Texas or

elsewhere, that interprets that language to be merely procedural and as being

insufficient to confer jurisdiction on the court unless review is authorized

under another statutory provision.

In

this Court, the TDPRS concedes that Mega Child Care exhausted all available

administrative remedies and that Mega Child Care is aggrieved by a final

decision in a contested case. However,

the TDPRS asserts that Mega Child Care is not entitled to judicial review of

the administrative decision to revoke its child-care facility license. Based on the following analysis, we disagree.

III

Several

longstanding rules of statutory interpretation govern our resolution of this

case.

When

interpreting a statutory provision, a court must ascertain and effectuate the

legislative intent. See Crown Life

Ins. Co. v. Casteel , 22 S.W.3d 378, 383 (Tex. 2000) ( A The primary rule in statutory

interpretation is that a court must give effect to legislative intent. @ ); Ex parte

Roloff , 510 S.W.2d 913, 915 (Tex. 1974) ( A [I]t is the duty of the court to

ascertain the legislative intent. @ );

Magnolia Petroleum Co. v. Walker , 83 S.W.2d 929, 934 (Tex. 1935) ( A [T]he dominant rule to be observed is

to give effect to the intention of the Legislature. @ );

Mills County v. Lampasas County , 40 S.W. 403, 404 (Tex. 1897) ( A Strictly speaking, there is but one

rule of construction, and that is that the legislative intent must govern. All other canons of interpretation, so

called, are but grounds of argument resorted to for the purpose of ascertaining

the true meaning of the law. @ ).

If

an ambiguous statute that has been interpreted by a court of last resort or

given a longstanding construction by a proper administrative officer is

re-enacted without substantial change, the Legislature is presumed to have been

familiar with that interpretation and to have adopted it. See Grapevine Excavation, Inc. v. Md.

Lloyds Ins. Co. , 35 S.W.3d 1, 5 (Tex. 2000) (Once the Texas Supreme Court

and courts of appeals A construe

a statute and the Legislature re-enacts or codifies that statute without

substantial change, we presume that the Legislature has adopted the judicial

interpretation. @ ); Sharp

v. House of Lloyd, Inc. , 815 S.W.2d 245, 248 (Tex. 1991) ( A > [A]

statute of doubtful meaning that has been construed by the proper

administrative officers, when re-enacted without any substantial change in

verbiage, will ordinarily receive the same construction. = This rule is only applicable where there has

been an affirmative long-standing administrative policy. @ )

(quoting Humble Oil & Ref. Co. v. Calvert , 414 S.W.2d 172, 180 (Tex.

1967)); Tex. Employers =

Ins. Ass = n v.

Holmes , 196 S.W.2d 390, 395 (Tex. 1946) ( A There

is another well-settled rule to guide us in the construction of a statute which

is uncertain and ambiguous . . . : > Where

a statute which has been construed, either by a court of last resort or by

executive officers, is re-enacted without any substantial change of verbiage,

it will continue to receive the same construction. = @ ); Tex.

Fid. & Bonding Co. v. City of Austin , 246 S.W. 1026, 1029 (Tex. 1922) ( A It is an elementary rule of

construction that where, after a statute has been construed by the highest

court of the state, the Legislature re-enacts the statute, whether by the

adoption of Revised Statutes or by amendment, the act of the Legislature

carries with it the construction previously placed upon the law by the court. @ ).

If

the statutory text is unambiguous, a court must adopt the interpretation

supported by the statute = s

plain language unless that interpretation would lead to absurd results. See Tune v. Tex.

Dep = t

of Pub. Safety , 23 S.W.3d 358, 363 (Tex. 2000) ( A We

must enforce the plain meaning of an unambiguous statute. @ ); RepublicBank

Dallas, N.A. v. Interkal , Inc. , 691 S.W.2d 605,

607 (Tex. 1985) ( A Unless a

statute is ambiguous, we must follow the clear language of the statute. @ ); Brazos River Auth. v. City of

Graham , 354 S.W.2d 99 , 109 n.3 (Tex. 1962) ( A [O] perating as we are under a strict theoretical division of

governmental powers, it would take a bit of doing on the part of the judiciary

to say, in the absence of ambiguous and uncertain statement or patent and

manifest absurdity, that the Legislature intended something different from the

clear import of the words chosen by it . . . . @ );

Gilmore v. Waples , 188 S.W. 1037, 1039 (Tex.

1916) (The literal meaning of a statute may be disregarded A only where it is perfectly plain that

the literal sense works an absurdity or manifest injustice. @ ).

IV

An

extensive review of the three model state administrative procedure acts, the

Texas Administrative Procedure Act, and the TDPRS = s

1997 sunset review legislation is necessary to resolve this case.

In

1946, the Commissioners on Uniform State Laws issued the first Model State

Administrative Procedure Act. Model State Admin. Procedure Act , 9C

U.L.A. 179 (1957). Because it governed

rulemaking, adjudication, and judicial review, the 1946 model act was

considered A comprehensive. @

Arthur Earl Bonfield , The Federal APA

and State Administrative Law , 72 Va.

L. Rev . 297, 303 (1986). Section 12 of the 1946 model act was titled A Judicial Review of Contested Cases, @ and subsection (1) thereof provided: A Any person aggrieved by a final

decision in a contested case, whether such decision is affirmative or negative

in form, is entitled to judicial review thereof under this act [but nothing

in this section shall be deemed to prevent resort to other means of review,

redress, relief or trial de novo, provided by law]. @ Model

State Admin. Procedure Act '

12(1), 9C U.L.A. 179, 183 (1957) (emphasis added). Section 12(1) has been interpreted as

granting an independent right to judicial review by both the courts [6]

and commentators. [7] At least ten states enacted comprehensive

administrative procedure acts based in whole or part on the 1946 model act.

In

1951, twenty-four years before the Legislature enacted a comprehensive

administrative procedure act, this Court addressed the availability of judicial

review of state administrative action:

When

the legislature creates an administrative agency, the legislature may prescribe

rules and regulations governing the administrative body and the method by which

the rights determined by such body shall be enforced. Judicial review of administrative action may

be specifically provided or specifically denied by the legislature . . . . Or the legislature may simply be silent upon

the subject. Although the legislature

specifically denies judicial review, decisions of an administrative body may be

attacked in court if they violate some provision of the State or Federal Constitution. But all other decisions of such an

administrative body which do not affect vested property rights or otherwise

violate some constitutional provision are valid, and the mere fact that the

legislature has denied judicial review does not invalidate them. The corollary of this proposition is that the

courts should recognize an inherent right of appeal from an administrative body

created by an act silent on the question of appeal only where the

administrative action complained of violates a constitutional provision.

City of

Amarillo v. Hancock , 239 S.W.2d 788, 790 (Tex.

1951) (citations omitted) (emphasis in original).

In

1953, a proposed Texas

administrative procedure act was published in the state bar journal. Administrative Procedure Act , 16 Tex . B.J. 14 (1953). The comprehensive act was drafted by the

State Bar Committee on Administrative Procedure. Article 42-23 of the act, titled A Judicial Review. C Orders, @ provided:

(a)

Any person adversely affected by a decision of an agency may seek judicial

review of the decision by filing suit against the agency in the District Court

of Travis County, or of any county in which venue properly lies, for the

purpose of setting aside the order complained of, whether affirmative or

negative in form, . . . .

.

. . .

(d)

Scope of review of agency decisions shall be in accordance with applicable

statutes. Where statutes do not provide

for scope of review the court shall determine whether the statute or regulation

pursuant to which the agency acted or the order issued thereunder

is unconstitutional, whether the decision is in excess of the statutory

authority or jurisdiction of the agency, whether the decision was made pursuant

to unlawful procedure or is affected by other error of law affecting

substantial rights of the petitioner, and whether the decision is arbitrary,

capricious or unreasonable.

Id .

at 48-49.

In

1955, an article regarding the state bar = s

proposed act was published in the Texas Law Review. George W. Terry, Comment, The Proposed Texas

Administrative Procedure Act , 33 Texas L. Rev . 499 (1955). After noting that the act apparently provided

an independent right to judicial review of both rules and orders, the author

asked: A [I]s it

wise to make judicial review a matter of right in all cases covered by this

general administrative procedure act even though the legislature, in creating

the agency, did not provide for review? @ Id .

at 508. In the conclusion, he stated:

The

Proposed Act presents no great departure from the Model Act or the

administrative procedure acts of other states . . . .

However,

the Proposed Act seems faulty in a few particulars discussed above: namely, (1)

it fails to ensure effective notice of rule-making; (2) it confers a right

to judicial review in both rule-making and adjudication where previously none

was recognized ; (3) it leaves in doubt the question whether a petition for

reconsideration of an adjudicative decision must precede a petition for

judicial review. Perhaps these

deficiencies will be corrected before the Proposed Act becomes law.

Id .

at 516 (emphasis added).

In

1957, the Texas Civil Judicial Council [8]

published a report on administrative procedure acts, with A particular emphasis upon the proposed

Texas Act, the Model Act, and the Federal Act. @ Texas

Civil Judicial Council, Administrative Procedure Laws in the United States: A Comparative Study

(1957) (available at State Law Library).

The twenty-nine page report was addressed to the Legislature, Governor,

and Supreme Court. In the section

concerning judicial review, the report stated:

All

but one of the procedure laws have provided for judicial review of

administrative proceedings. All of the

acts with these provisions make them applicable, as does the Model Act, to

administrative decisions in A contested

cases @ (or

whatever equivalent term is used in the particular act), but five are broader

in their application in that they specifically or impliedly permit judicial

review to be extended to rules and regulations as well as administrative

adjudication. These five are the

statutes of California, Ohio,

Massachusetts, the Proposed Texas

Act and the Federal Act.

. .

. .

The

Federal Act assures the right of judicial review to any person suffering from

legal wrong or adversely affected by agency action, except where federal

statutes preclude it and where agency action is by law committed to agency

discretion.

. .

. .

Under

the Proposed Texas

Act, judicial review is authorized for both regulations and orders ; it may

be sought by any person adversely affected by agency action.

Id .

at 21-23 (emphasis added). In addition,

the report quoted in full the conclusion of the 1955 Texas Law Review article,

including the author = s

concern that the proposed act A confers

a right to judicial review in both rule-making and adjudication where

previously none was recognized. @ Id .

at 29.

In

1961, the Commissioners on Uniform State Laws issued a revised Model State

Administrative Procedure Act. Model State Admin. Procedure Act

(1961), 15 U.L.A. 184 (2000). Section 15

of the 1961 model act was titled A Judicial

Review of Contested Cases, @

and subsection (a) thereof provided:

A

person who has exhausted all administrative remedies available within the

agency and who is aggrieved by a final decision in a contested case is

entitled to judicial review under this Act.

This Section does not limit utilization of or the scope of judicial

review available under other means of review, redress, relief, or trial de novo

provided by law. A preliminary,

procedural, or intermediate agency action or ruling is immediately reviewable

if review of the final agency decision would not provide an adequate remedy.

Model State Admin. Procedure Act (1961)

' 15(a), 15A U.L.A. 11 (2000) (emphasis

added). The official comment to section

15 states:

An

important question that arises under subsection (a) is whether or not the

review provisions should be made exclusive and all other review provisions on

the statute books should be repealed.

Each state will have to deal with this matter as the local circumstances

dictate. On the one hand, if there is

but one mode and scope of review, the state procedural structure is greatly

simplified. On the other hand, local

considerations, including practical considerations connected with obtaining adoption

of the Model Act, may indicate or even require the retention, at least for the

moment, of the pre-existing methods of judicial review.

Id .

' 15 cmt ., at

13. A majority of states, including Texas,

has enacted comprehensive administrative procedure acts based in whole or part

on either the original 1946 model act or the 1961 revision.

In

1963, Professor Bloomenthal of the University of

Wyoming College of Law authored an article on the 1961 model act. Harold S. Bloomenthal ,

The Revised Model State

Administrative Procedure Act C Reform

or Retrogression? , 1963 Duke L.J.

593 . Discussing the availability of

judicial review of administrative action in general, he stated:

Many

statutes relating to administrative agencies and action expressly provide that

specified types of administrative decisions are subject to judicial

review. Generally, these review

provisions relate to administrative adjudication (contested cases),

infrequently to rule making, and occasionally to executive action. However, a number of statutes in some states

relating to agencies with powers of adjudication do not include review

provisions. On the federal level there

appears to be a reasonably well developed doctrine that unless a statute

affirmatively precludes judicial review, there is a common law right of

judicial review of administrative action.

The decisions on the state level are inconclusive. The Model Act as revised expressly

provides that final decisions in all contested cases are reviewable by the

courts and that the validity of all administrative rules and regulations may be

determined in an action for a declaratory judgment. The revised Model Act contains no provision

for reviewing executive action, that is, administrative action that can be

classified neither as adjudication nor rule making.

Id .

at 622-23 (footnotes omitted) (emphasis added).

In

1965, Professor Cooper of The University of Michigan Law School authored an

important treatise on state administrative law.

Frank E. Cooper, State

Administrative Law (1965). Cooper

had been intimately involved with the 1961 revision of the 1946 model act. In his treatise, Cooper stated:

The

Revised Model

State Act grants a

right of judicial review of A a

final decision @

in a contested case and of certain preliminary orders . . . . Many state statutes grant a right of appeal

only from final orders. Even in states

not having a specific statutory requirement to this effect, the courts

ordinarily hold that only final agency orders are reviewable. As yet, only a small number of states have

adopted statutes providing for review of preliminary orders, where necessary to

avoid an injustice.

2 id . at

588 (citations omitted) (emphasis added).

In

1967, in Abbott Laboratories v. Gardner , 387 U.S. 136 (1967), the United

States Supreme Court reaffirmed the presumption that judicial review of federal

administrative action is available. At

that time, the Federal Administrative Procedure Act provided: A A person suffering legal wrong because

of agency action, or adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial review

thereof. @ 5 U.S.C. '

702 (Supp. III 1964) (emphasis added). With regard to the availability of judicial

review, the Supreme Court stated:

The

first question we consider is whether Congress by the Federal Food, Drug, and

Cosmetic Act intended to forbid pre-enforcement review of this sort of

regulation promulgated by the Commissioner.

The question is phrased in terms of A prohibition @ rather than A authorization @ because a survey of our cases shows

that judicial review of a final agency action by an aggrieved person will not

be cut off unless there is persuasive reason to believe that such was the

purpose of Congress. Early cases in

which this type of judicial review was entertained, [omitted citations include Stark

v. Wickard , 321 U.S. 288 (1944)], have been

reinforced by the enactment of the Administrative Procedure Act, which embodies

the basic presumption of judicial review to one A suffering

legal wrong because of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute, @

so long as no statute precludes such relief or the action is not one committed

by law to agency discretion.

Abbott Labs. ,

387 U.S. at

139-40 (citations omitted); see also Hayes Int = l Corp. v. McLucas , 509 F.2d 247,

259 (5th Cir. 1975) ( A Clearly

the absence of statutory language expressly authorizing judicial review is

insufficient to offset the presumption that [federal] administrative action is

reviewable. > Indeed,

judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated. =

However, > [a]

clear command of the statute will preclude review; and such a command of the

statute may be inferred from its purpose. = @ ) (quoting Barlow v. Collins ,

397 U.S. 159,

166 (1970)).

In

1971, legislation providing for a comprehensive Texas

administrative procedure act was filed in both the Senate [9]

and the House. See Tex. S.B. 16,

62d Leg., R.S. (1971); Tex. H.B. 761, 62d Leg., R.S. (1971) (available at State

Archives). Section 17(a) of both the

Senate and House bills provided: A A

person who has exhausted all administrative remedies available within the

agency and who is aggrieved by a final decision in a contested case as defined

in Section 3(2) is entitled to judicial review under this Act. A preliminary, procedural, or intermediate

agency action or ruling is immediately reviewable if review of the final agency

decision would not provide an adequate remedy. @ Tex. S.B. 16 '

17(a); Tex. H.B. 761 '

17(a) (emphasis added). Neither bill was

passed out of legislative committee. In

1973, similar legislation was introduced in both houses containing identical

section 17(a) language. See Tex.

S.B. 81, 63d Leg., R.S. (1973); Tex. H.B. 248, 63d Leg., R.S. (1973) (available

at Legislative Reference Library). The

Senate passed its bill, but both the Senate bill and the House bill died in a

House committee.

In

1975, legislation was again filed that provided for a comprehensive

administrative procedure act. See

Tex. S.B. 41, 64th Leg., R.S. (1975); Tex. H.B. 531, 64th Leg., R.S. (1975);

Tex. H.B. 1106, 64th Leg., R.S. (1975) (available at Legislative Reference

Library). Senate Bill 41, as amended,

was enacted during that legislative session.

Section 17(a) of Senate Bill 41, as introduced, provided: A A person who has exhausted all

administrative remedies available within the agency and who is aggrieved by a

final decision in a contested case as defined in Section 3(2) is entitled to

judicial review under this Act. A

preliminary, procedural, or intermediate agency action or ruling is immediately

reviewable if review of the final agency decision would not provide an adequate

remedy. @ Tex. S.B. 41 (emphasis added).

On

January 30th, the introduced version of Senate Bill 41 was considered in

committee. See Hearings on

Tex. S.B. 41 Before the Senate Intergovernmental Relations Comm. , 64th

Leg., R.S. (Jan. 30, 1975) (transcript available at Legislative Reference

Library). David Young, chief counsel for

the Texas Department of Public Welfare (DPW),

was one of the many agency representatives who testified at the hearing.

Young

advised the Senate committee that certain contested-case decisions of the DPW

were not currently subject to judicial review and that, in his view, the

proposed act would both waive sovereign immunity and authorize judicial review

of those contested-case decisions. Id .

at 12-13. He further stated that A because we have about a volume of some

800 hearings a month in the Aid to Dependent Children program we can expect a

very heavy influx of litigation on what amount[s] to relatively small amounts

of money. @ Id .

at 13. A committee member immediately

raised the question of how many new district courts would have to be created to

handle those appeals. Committee members

and Young then discussed solving the problem by exempting the relevant DPW

contested-case decisions from the act. Id .

at 13-15. No committee member or witness

contested Young = s

assertion that Senate Bill 41 would provide a right to judicial review.

On

February 5th, the following floor amendment to Senate Bill 41 was adopted: A 19. EXCEPTIONS. The provisions of this

Act shall not apply to the financial and medical assistance and service

programs of the State Department of Public Welfare. @ S.J.

of Tex . , 64th Leg., R.S. 184, 191

(1975). The substance of the exemption

was retained throughout the legislative process and is currently codified in

section 2001.223 of the APA. See Tex . Gov = t Code '

2001.223.

The

Administrative Procedure and Texas Register Act [10]

became effective on January

1, 1976. APTRA, 64th Leg.,

R.S., ch . 61, 1975 Tex. Gen. Laws 136 , 148. Section 3(2) of the APTRA provided: A > Contested

case = means a

proceeding, including but not restricted to ratemaking and licensing, in which

the legal rights, duties, or privileges of a party are to be determined by an

agency after an opportunity for adjudicative hearing. @ Id .

' 3(2), at 137. And section 12 provided:

The validity or

applicability of any rule, including an emergency rule adopted under Section

5(d) of this Act, may be determined in an action for declaratory judgment in a

district court of Travis County, and not elsewhere, if it is alleged that the

rule, or its threatened application, interferes with or impairs, or threatens

to interfere with or impair, the legal rights or privileges of the plaintiff.

Id .

' 12, at 141.

Section

19 of the APTRA provided:

(a)

A person who has exhausted all administrative remedies available within the

agency and who is aggrieved by a final decision in a contested case is

entitled to judicial review under this Act.

This section is cumulative of other means of redress provided by

statute.

. .

. .

(e)

The scope of judicial review of agency decisions is as provided by the law

under which review is sought. Where the

law authorizes appeal by trial de novo, the courts shall try the case in the

manner applicable to other civil suits in this state and as though there had

been no intervening agency action or decision.

Where the law authorizes review under the substantial evidence rule, or

where the law does not define the scope of judicial review, the court may not

substitute its judgment for that of the agency as to the weight of the evidence

on questions committed to agency discretion but may affirm the decision of the

agency in whole or in part and shall reverse or remand the case for further

proceedings if substantial rights of the appellant have been prejudiced because

the administrative findings, inferences, conclusions, or decisions are:

(1) in violation of constitutional or statutory provisions;

(2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) not reasonably supported by substantial evidence in view

of the reliable and probative evidence in the record as a whole; or

(6) arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.

Id .

' 19, at 146-47 (emphasis added). Section 22 contained a general repealer . Id .

' 22, at 148. The APTRA did not specifically repeal or

amend any pre-existing statutory judicial review provisions.

In

1976, Professor Hamilton of The University of Texas School of Law co-authored

an article regarding the APTRA. Robert

W. Hamilton & J.J. Jewett, III, The

Administrative Procedure and Texas

Register Act: Contested Cases and Judicial Review , 54 Texas L. Rev . 285

(1976). The article did not discuss

whether section 19(a) of the APTRA provided an independent right to judicial

review when an agency enabling statute neither specifically authorized nor

prohibited judicial review. However, in

the following passage, the authors assumed that section 19(a) provided an

independent right to judicial review:

It

is important that in the future the legislature clearly specify the desired

manner of review. Indeed, more or less

standardized language would be desirable to ensure that no ambiguity exists as

to the intended manner of review. We

have examined the legislative work-product of the sixty-fourth Texas

Legislature, the session that enacted the APTRA, and by our unofficial

headcount the legislature enacted or re-enacted legislation calling

definitively for A trial de

novo @ in only

three instances. In contrast, the

language of nine statutes, including two recodifications ,

clearly indicates that the substantial evidence rule is applicable. In at least four instances involving

obvious contested cases there is no specific judicial review provision. Under section 19, appeals in these cases will

also be governed by the substantial evidence rule. Three statutes, however, include provisions

relating to judicial review apparently without regard to the distinctions set

forth in section 19.

Id .

at 308-09 (footnotes omitted) (emphasis added).

In

the footnote following the first sentence emphasized above, the authors cited

four statutes, one of which was A Auctioneers B Regulation, Tex . Rev . Civ . Stat . Ann . art. 8700

(Supp. 1975). @ Id .

at 309 n.110. The statute was

comprehensive, providing inter alia for the denial,

suspension, and revocation of the required auctioneer = s

license. See Act of May 21, 1975, 64th Leg.,

R.S., ch . 320, 1975 Tex. Gen. Laws 827 , 829. It was silent with regard to the availability

or scope of judicial review.

Nonetheless, Hamilton and Jewett assumed that judicial review was

available under section 19(a) of the APTRA and concluded that substantial

evidence was the applicable scope of review.

In

1977, the Legislature enacted the Alcoholic Beverage Code, a nonsubstantive revision.

Alcoholic Beverage Code, 65th Leg., R.S., ch .

194, 1977 Tex. Gen. Laws 391 . The revisor = s

notes that accompanied the proposed codification reflect that the code drafters

believed section 19(a) of the APTRA guaranteed a right to judicial review. Section 11.67 of the Alcoholic Beverage Code

governs judicial review of administrative orders regarding liquor licenses, and

its revisor = s

note stated:

The

revised law omits the provision in the source law denying appeal from certain

orders because this provision was impliedly repealed by Section 19 of the

Administrative Procedure and Texas Register Act (Article 6252-13a, Vernon = s Texas Civil Statutes).

Tex . Alco . Bev . Code Ann . '

11.67 revisor = s

note (Vernon 1995). Similarly, section 61.81 governs judicial

review of administrative orders regarding beer licenses and its revisor = s

note stated:

The

provision in the source law denying appeal in certain circumstances is omitted

since it conflicts with Subsection (a), Section 19 of the Administrative

Procedure and Texas Register Act (Article 6252-13a, Vernon = s Texas Civil Statutes). That section provides, A A person who has exhausted all

administrative remedies available within the agency and who is aggrieved by a

final decision in a contested case is entitled to judicial review under this

Act. @

Id .

' 61.81 revisor = s note.

In

1978, this Court decided Southwestern Bell Telephone Co. v. Public Utility

Commission , 571 S.W.2d 503 (Tex.

1978). Because the Public Utility

Commission = s

enabling statute specifically authorized judicial review of the commission = s orders, the question of whether

section 19(a) provided an independent right to judicial review was not

raised. However, the Court resolved an

important question regarding the remainder of section 19 and expressed its view

of the Legislature = s intent

in enacting the APTRA. After setting out

the entire text of section 19, the Court stated:

A

complete reading of the section reveals that in contested cases there are now

provided only two types of review C pure

trial de novo or review confined to the agency record. We think the court of appeals fails to

recognize the far-reaching changes intended by the adoption of the

Administrative Procedure Act.

Id .

at 508.

In

1977 and 1979, three courts of appeals reached different conclusions regarding

whether section 19(a) of the APTRA provided an independent right to judicial

review when the agency enabling statute neither specifically authorized nor

prohibited judicial review. In both Moore

v. Texas Employment Commission , 565 S.W.2d 246, 247 (Tex. Civ . App. C Houston

[14th Dist.] 1977, no writ) and Texas Health Facilities Commission v. West

Texas Home Health Agency , 588 S.W.2d 655, 657 (Tex. Civ .

App. C Waco 1979,

no writ), the courts concluded, with limited analysis, that section 19(a) did

provide an independent right to judicial review.

In

Motorola, Inc. v. Bullock , 586 S.W.2d 706, 708-09 (Tex. Civ . App. C Austin

1979, no writ), the Third Court of Appeals concluded that section 19(a) of the

APTRA did not provide an independent right to judicial review, stating:

The

Legislature with laudable care sought to avoid conflict between the general

procedure outlined in section 19 and any other statute or law, with final

specification [in section 19(e)] that the scope of judicial review of agency

decisions would follow A the

law under which review is sought. @ Nowhere do we find an attempt to grant a

substantive right not provided by other statutes or laws.

Id .

at 709. However, the court failed to

quote, analyze the plain meaning of, or otherwise directly address the first

sentence of section 19(a). [11]

In

1981, in Hooks v. Texas Department of Water Resources , 611 S.W.2d 417 (Tex.

1981), this Court addressed another important question regarding the APTRA: the

interaction between section 19(a) and agency enabling statutes that

specifically authorize judicial review. [12] Overturning the Third Court of Appeals = s judgment, the Supreme Court stated:

Section

19(a) of the APA provides that A [a] person who has exhausted all

administrative remedies available within the agency and who is aggrieved by a

final decision in a contested case is entitled to judicial review under this

Act. @ It further provides A [t]his

section is cumulative of other means of redress available [sic] by statute. @

Id . The Hooks appealed the order granting the

waste discharge permit pursuant to the judicial review provisions of the Texas

Water Code. Section 5.351(a), Tex. Water

Code Ann., provides that A [a]

person affected by a ruling, order, decision, or other act of the department

may file a petition to review, set aside, modify, or suspend the act of the

department. @ The judicial review provisions of the APA

and the Water Code should be read in conjunction and harmony with each other. The terms A aggrieved @ and A affected @ are synonymous and both relate to the

requirement that a person show a A justiciable interest. @

Id . at

419 (citation omitted) (emphasis added); see also Ingle v. Bullock , 578

S.W.2d 193, 193-94 (Tex. Civ . App. C Austin 1979, writ ref = d) (concluding that a person seeking

judicial review under section 19(a) of the APTRA must satisfy additional

prerequisites for judicial review contained in an agency enabling statute C in this case, prepayment of a disputed

tax assessment).

Also

in 1981, the Commissioners on Uniform State Laws issued the third Model State

Administrative Procedure Act. Model State Admin. Procedure Act

(1981), 15 U.L.A. 1 (2000). Section

5-102 of the 1981 model act is titled A Final

Agency Action Reviewable, @

and subsection (a) thereof provides:

A

person who qualifies under this Act regarding ( i )

standing (Section 5-106), (ii) exhaustion of administrative remedies (Section

5-107), and (iii) time for filing the petition for review (Section 5-108), and

other applicable provisions of law regarding bond, compliance, and other

pre-conditions is entitled to judicial review of final agency action,

whether or not the person has sought judicial review of any related non-final

agency action.

Id .

' 5-102(a), at 119 (emphasis

added). The official comment to section

5-102 states: A Subsection

(a) ties together the threshold requirements for obtaining judicial review of

final agency action, and guarantees the right to judicial review if these requirements

are met. @ Id .

' 5-102 cmt .,

at 119. Only three states have adopted

the 1981 model act in whole or part.

Certain

statements contained in Third Court of Appeals = s

opinions issued after Motorola, Inc. appear inconsistent with the

holding in that case. For example, in Bank

of Woodson v. Stewart , 632 S.W.2d 950 (Tex. App. C Austin

1982), dism = d

as moot , 641 S.W.2d 230 (Tex.

1982), the court of appeals, in determining the trial court = s jurisdiction, stated:

[T]he

right to challenge administrative agency actions, by an original action in

district court, on the basis that such actions unconstitutionally deprive the

plaintiff of a vested property right, is a right to judicial review distinctly

different from the right to such review which is given in the Texas

Administrative Procedure and Texas Register Act (APTRA), Tex. Rev. Civ . Stat. Ann. art. 6252-13a, ' '

12, 19. This right is equally distinct

and different from the right to judicial review conferred in numerous other

statutes which delegate portions of the State = s

police power to various administrative agencies, prescribe how and on what

conditions the delegated power may be exercised, and provide for judicial

review of specific instances where the power is exercised, frequently by suit

in a district court of Travis County, Texas.

Id .

at 956-57 (footnote omitted). The

footnote following the first sentence quoted above stated:

APTRA

' ' 12 and 19 authorize judicial

review of two different kinds of administrative action: rule making and

adjudications. In either case, judicial

review is made exclusive in the district courts of Travis

County.

Section

12 empowers the Travis County

district courts to hear and determine by declaratory judgment the plaintiff = s allegations that an agency rule

interferes with or impairs a plaintiff = s

legal rights . . . .

Section

19 empowers the Travis County

district courts to review for errors of law the final order and the proceedings

in any A contested

case @ adjudicated

in an agency in its exercise of that portion of the State police power assigned

to the agency and delegated to it by statute.

Id .

at 956 n.4.

In

1986, on motion for rehearing, this Court issued a per curiam

opinion in Employees Retirement System v. Blount , 709 S.W.2d 646 (Tex.

1986). The case is important because

review of the Third Court of Appeals = s

opinion, the parties =

briefing, the legislative action taken while the case was pending, and this

Court = s opinion

reveals a common understanding at that time among the Attorney General, the

Legislature, and the Supreme Court that section 19(a) of the APTRA provided an

independent right to judicial review.

In

the trial court and the court of appeals, the parties agreed that the Employees

Retirement System (ERS) had statutory

authority to resolve a contractual dispute between Blount and Metropolitan Life

Insurance Company in a contested-case hearing and that, although the ERS = s enabling statute did not specifically

authorize judicial review of the decision, judicial review was available under

section 19(a) of the APTRA. The court of

appeals, sua sponte ,

questioned whether the ERS was empowered to

adjudicate the dispute. See Blount

v. Metro. Life Ins. Co. , 677 S.W.2d 565, 569 (Tex. App. C Austin 1984), rev = d , 709 S.W.2d 646 (Tex.

1986).

The

Third Court of Appeals stated:

The

[Texas Employees Uniform Group Insurance Benefits Act] establishes a framework

for the purchase of group life, accident, and health insurance for State

employees. Section 4 of the Act vests in

a A trustee @

the sole power to administer and implement the Act. The A trustee @ so empowered is the State Board of

Trustees of the Employees Retirement System . . . .

In

addition, ' 4(e) of

the Act provides that the trustee shall have full power and authority as to the

following:

[E] stablishment of grievance procedures by which the trustee

shall act as an appeals body for complaints by employees regarding the

allowance and payment of claims, eligibility, and other matters.

Nothing

in the Act, unless it be this subsection, purports to vest in the trustee a

power to adjudicate claims on a group life insurance contract entered into by

the trustee under the Act. 1

The parties have assumed that '

4(e) does give the trustee a power to adjudicate such claims and the

trial court judgment rests upon the assumption that the trustee has such power.

Id .

at 568-70 (text of footnote 1 omitted) (emphasis in original). In footnote number one, the court stated that

A [t]he judicial review provisions of

APTRA ' 19

ensure that judicial review is available in a [contested-case hearing]. APTRA ' '

3(2), 19(a). @ Id .

at 569 n.1. The court later noted that

the ERS = s

enabling statute A does not

provide for judicial review at all in the matter of ordinary contract actions

and defenses. @ Id .

at 572. After determining that the ERS

lacked statutory authority to adjudicate the dispute, the court stated:

We

hold, accordingly, that the trial court proceeded on the wrong theory in its

adjudication of Mrs. Blount = s

claim under the substantial evidence rule and as a contested case defined by

APTRA '

3(2). In the interests of justice, we

reverse the judgment of the trial court and remand the cause for a new trial as

an ordinary common-law action on or for breach of the insurance contract.

Id .

at 573.

In

the ERS = s

application for writ of error, the Attorney General argued that A the Legislature provided for an

administrative procedure which affords [state] employees the right of judicial

review under the APA '

19 which may not be defeated by a defense of sovereign immunity @ and that A [o] nce the Trustee made its determination, applying the

standards set out in the contract for insurance, [Blount] was entitled to seek

appeal of the Trustee = s

decision to the district court under the substantial evidence rule stated in APA

' 19. @ Application for Writ of Error for Employees

Retirement System at 10-11, 19, Employees Ret. Sys. v. Blount , 709

S.W.2d 646 (Tex. 1986) (cause no.

C-3448) (filed Oct. 22,

1984) (available at Supreme Court).

In

conclusion, the Attorney General stated:

The

Court of Appeals failed to consider this appeal as an administrative decision

reviewable under the APA ' 19 and the substantial evidence

rule. Remand to the trial court for

retrial of the facts decided by the Trustee is improper under that standard for

review. This decision should be reversed

and remanded for review of the Trustee = s

Order as a valid decision in a contested case, by an administrative agency.

Id .

at 21.

While

the case was pending before the Supreme Court, the Legislature amended the

relevant enabling statute. See

Act of May 9, 1985,

69th Leg., R.S., ch . 155, 1985 Tex. Gen. Laws 685 . [13] Senate Bill 771 was a direct response to the

Third Court of Appeals = s

decision. [14] Although the enactment provided that the

final administrative decision of the ERS was

a A contested case under the Administrative

Procedure and Texas Register Act @

and that A the

standard of review is by substantial evidence, @

it did not expressly authorize judicial review.

Instead, the Legislature relied on the independent right to judicial

review provided by section 19(a) of the APTRA. [15] The enactment became effective on May 24, 1985.

On

August 1, 1985,

the ERS and Metropolitan Life Insurance

Company filed a joint motion for rehearing.

They informed the Supreme Court of the legislative reaction to the Third

Court of Appeals = s opinion

and asserted:

[T] hese amendments indicate that the intent of the Legislature

all along has been to grant the Trustees of the Employees Retirement System

final, binding authority to adjudicate insurance claims arising under the Act,

to treat such claims as A contested

cases, @ and to

allow appeal of the Trustee = s

decisions to the state courts only under the substantial evidence standard of

review.

Petitioners = Joint Motion for Rehearing for

Employees Retirement System and Metropolitan Life Insurance Company at 6, Employees

Ret. Sys. v. Blount , 709 S.W.2d 646 (Tex.

1986) (cause no. C-3448) (filed Aug. 1, 1985) (available at Supreme Court).

On

rehearing, this Court reversed the Third Court of Appeals = s judgment and affirmed the trial court = s judgment. The Court stated that A [t]he

primary issue on appeal is whether the ERS

trustees have been granted the final binding authority to adjudicate claims of

contested cases pursuant to its enabling statute, Tex. Ins. Code Ann. art.

3.50-2 (Vernon 1981) and the

Administrative Procedure and Texas Register Act @

and concluded that A the

agency does have such authority pursuant to Article 3.50-2 and APTRA ' 19, and that the trial court properly

reviewed the record under the substantial evidence standard. @

Employees Ret. Sys. v. Blount , 709 S.W.2d at 646 . This Court = s

affirmance of the trial court = s

judgment necessarily reflects its understanding that section 19(a) of the APTRA

provided Blount an independent right to judicial review.

In

1989, the Legislature enacted the Health and Safety Code, a nonsubstantive

revision. Health and Safety Code, 71st

Leg., R.S., ch . 678, 1989 Tex. Gen. Laws 2230 . The revisor = s note to section 242.061 reflects that

the code drafters relied on the plain meaning of section 19(a) of the APTRA

when deleting, as redundant and therefore unnecessary, a provision contained in

the underlying source law that specifically authorized judicial review. The Legislature had enacted a comprehensive

statute in 1953 regulating nursing homes, providing inter alia

for the denial, suspension, and revocation of the required facility

license. See Act of May

25, 1953, 53d Leg., R.S., ch .

413, 1953 Tex. Gen. Laws 1005 , 1006-07.

The statute provided for judicial review by trial de novo. Id .

at 1008. In 1985 sunset review

legislation, the judicial review provision was amended to provide:

Sec.

10. JUDICIAL REVIEW. Any applicant or licensee aggrieved by the decision of the

Licensing Agency is entitled to judicial review in the manner provided for a

contested case under the Administrative Procedure and Texas Register Act

(Article 6252-13a, Vernon = s Texas Civil Statutes). Judicial review under this section shall be

under the substantial evidence rule.

Pending final disposition of the matter, the status quo of the applicant

or licensee shall be preserved except as the Court otherwise orders in the public

interest for the welfare and safeguard of the persons in the institution.

See Act

of May 27, 1985,

69th Leg., R.S., ch . 931, 1985 Tex. Gen. Laws 3121 ,

3134.

In

1989, the judicial review provision was codified as section 242.061(b) of the

Health and Safety Code, which provided:

(b)

The status of a person as an applicant for a license or a license holder is

preserved until final disposition of the contested matter, except as the court

having jurisdiction of a judicial review of the matter may order in the public

interest for the welfare and safety of the residents.

Health and

Safety Code, 71st Leg., R.S., ch . 678, 1989 Tex.

Gen. Laws 2230 , 2469. The revisor = s

note that accompanied the proposed codification stated:

(4)

The revised law omits as unnecessary that part of Section 10 of the source law

providing that an applicant or licensee is entitled to judicial review in the

manner provided for a contested case. As

explained in Revisor = s

Note (3) under this section, licensing proceedings are governed by the

contested case provisions of the Administrative Procedure and Texas Register

Act (Article 6252-13a, Vernon = s Texas Civil Statutes). Section 19(a) of that act provides that a

person who is aggrieved by a final decision in a contested case is entitled to

judicial review under the act.

(5)

The revised law omits as unnecessary that part of Section 10 of the source law

requiring that the substantial evidence rule be used in the judicial review of

licensing proceedings. Section 19(e),

Administrative Procedure and Texas Register Act (Article 6252-13a, Vernon = s Texas Civil Statutes), requires a

court reviewing a proceeding governed by the act to use the substantial

evidence rule unless the law authorizing the proceeding requires otherwise.

Tex . Health & Safety Code Ann . ' 242.061 revisor = s note (Vernon 2001).

In

1990, two members of the judiciary addressed in non-judicial writings whether

section 19(a) of the APTRA provided an independent right to judicial

review. Justice Powers of the Third

Court of Appeals wrote a book about administrative rulemaking, adjudication,

and judicial review in Texas. John

E. Powers, Agency Adjudications (1990).

He stated: A By its

terms, APTRA Sec. 19(a) seems to create a general statutory cause of action for

judicial review of agency decisions in contested cases. The statutory provision has been construed,

however, as not creating such a cause of action. @ Id .

at 156. Judge Cofer ,

a senior district judge in Travis County,

authored an article concerning judicial review.

Hume Cofer , Judicial Review of Agency Law

Decisions on Scope of Agency Authority , 42 Baylor L. Rev . 255 (1990). He stated: A Tex . Rev . Civ . Stat . Ann . art. 6252-13a, ' 19 seems to create a right of review

in addition to the statutes that create agencies and also provide for judicial

review. @ Id .

at 287 n.226.

In

May 1993, the APTRA was codified in the Government Code, a nonsubstantive

revision. Government Code, 73d Leg.,

R.S., ch . 268, 1993 Tex. Gen. Laws 583 . The first sentence of section 19(a) became

section 2001.171, which provides: A 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. @ Tex .

Gov = t Code '

2001.171 (emphasis added).

In

June 1993, in Reno v. Catholic Social Services, Inc. , 509 U.S. 43

(1993), the United States Supreme Court addressed again the federal presumption

in favor of judicial review. The

consolidated case involved two separate lawsuits, each challenging a different

regulation issued by the Immigration and Naturalization Service (INS)

in administering the Immigration Reform and Control Act of 1986. In resolving the INS = s jurisdictional challenge, the Supreme

Court stated:

To

be sure, a statutory source of [federal subject-matter] jurisdiction is not

lacking, since 28 U.S.C. '

1331 , generally granting federal-question jurisdiction, A confer[s] jurisdiction on federal

courts to review agency action. @ Califano

v. Sanders , 430 U.S.

99, 105 (1977). Neither is it fatal that

the Reform Act is silent about the type of judicial review [the] plaintiffs

seek. We customarily refuse to treat

such silence A as a

denial of authority to [an] aggrieved person to seek appropriate relief in the

federal courts, @ Stark

v. Wickard , 321 U.S. 288, 309 (1944), and this

custom has been A reinforced

by the enactment of the Administrative Procedure Act, which embodies the basic

presumption of judicial review to one > suffering

legal wrong because of agency action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute. = @

Abbott Laboratories v. Gardner , 387 U.S.

136, 140 (1967) (quoting 5 U.S.C. '

702).

Id .

at 56-57; see also Stockman v. Fed. Election Comm = n , 138 F.3d 144 , 151 (5th Cir.

1998) ( A Section

702 of the APA creates a cause of action for

> [a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute. = @ ).

In

December 1993, for the first time since deciding Motorola, Inc. v. Bullock

in 1979, the Third Court of Appeals held that section 2001.171 of the APA

did not A create a

right of judicial review. @ Southwest Airlines v. Tex. High-Speed Rail

Auth. , 867 S.W.2d 154, 158 (Tex. App. C Austin

1993, writ denied). The opinion was issued

seven months after the APTRA was codified, and eighteen years after it was

originally enacted. With regard to

whether section 2001.171 of the APA provided

an independent right to judicial review, the court stated only:

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 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. A This

subchapter is cumulative of other means of redress provided by statute. @

APA '

2001.178.

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. 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.

Id .

(citations and footnotes omitted). In

contrast, in Texas Department of Human Services v. ARA

Living Centers , 833 S.W.2d 689 (Tex. App. C Austin

1992, writ denied), the Third Court of Appeals had previously acknowledged that

section 12 of the APTRA, now section 2001.038 of the APA,

creates a cause of action to determine the validity or applicability of an

agency rule:

TDHS

also argues that ARA = s

suit to obtain declaratory relief is barred by the doctrine of governmental

immunity. This assertion is also without

merit. The legislature has, in section

12, given express statutory authorization to bring an action such as the

present one. Accordingly, section 12

represents an express waiver of governmental immunity from suit for an action

that properly invokes that section of APTRA.

We

conclude, therefore, that the trial court had jurisdiction to hear the present

case and that it was not barred by the doctrine of governmental immunity.

Id .

at 693.

In

1995, the Third Court of Appeals decided Employees Retirement System v. Foy ,

896 S.W.2d 314 (Tex. App. C Austin

1995, writ denied). With regard to

section 2001.171 of the APA, the court

stated:

Foy

contends next that section 2001.171 of the APA

authorizes a cause of action for judicial review, of the kind conducted here in

the trial court, in all instances where the legislature has not provided

explicitly for such review of the decisions of a specific agency. Section 2001.171 provides as follows: A 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 a [sic] judicial review

under this chapter. @ APA ' 2001.171. Notwithstanding the generality of section

2001.171, the legislature intended the judicial-review provisions of the APA

to be procedural only; they do not create a right to judicial review where the

right does not exist by reason of another statute specifically granting the

right. Southwest Airlines v. Texas

High Speed Rail Auth. , 867 S.W.2d 154, 158 (Tex. App. C Austin 1993, writ denied); Motorola,

Inc. v. Bullock , 586 S.W.2d 706, 708-09 (Tex. Civ .

App. C Austin

1979, no writ). The reason is almost

self-evident. State agencies do many

things; they make many different kinds of decisions. These usually affect to some extent a person = s A legal

right, @ and the

agencies may choose to take these actions only after trial-type procedures

similar to A contested

case @

procedures required by the APA in sections

2001.001-.147. A theory that APA

section 2001.171 entitles all persons A aggrieved @ to A judicial

review @ in each

instance A invites

potentially serious consequences by ushering an unknown and indeterminate

number of agency proceedings into the contested case category, @ and thus into the reviewing courts,

even in such administrative controversies as the taking away of A good time @

from thousands of state prisoners.

Robert W. Hamilton & J.J. Jewett, III,

The Administrative Procedure and Texas

Register Act: Contested Cases and Judicial Review , 54 Tex . L. Rev . 85 [sic], 289

(1976). It is unlikely that the

legislature intended to so overwhelm the few district courts of Travis county,

where suits under APA section 2001.171 must

be decided.

Id .

at 316. Since Foy , the Third

Court of Appeals has refused to interpret broadly the term A contested case. @ See, e.g. , Best & Co. v. Tex.

State Bd. of Plumbing Exam = rs , 927 S.W.2d 306, 309 (Tex. App. C Austin 1996, writ denied) ( A We reject a proposed construction of

the definition [of contested case] that would require an agency to follow contested-case

procedures any time rights, duties, or privileges of a party are determined,

without regard to whether an adjudicative hearing is required or provided. See Employees Retirement Sys. v. Foy ,

896 S.W.2d 314, 316 ( Tex.App . C Austin

1995, writ denied); Hamilton & Jewett, supra at 289-90. @ ) (footnote omitted).

In

1997, the Legislature enacted the Finance Code, a nonsubstantive

revision. Finance Code, 75th Leg., R.S.,

ch . 1008, 1997 Tex. Gen. Laws 3091 . The revisor = s note to section 152.210 reflects that

the code drafters relied on the plain meaning of section 2001.171 of the APA

when deleting a provision that specifically authorized judicial review. Section 15 of the Sale of Checks Act, the

underlying source law, granted a right of judicial review to applicants for and

holders of the required business license.

See Act of Sept.

4, 1986, 69th Leg., 2d C.S., ch . 16, 1986

Tex. Gen. Laws 40 , 44. Section 15 was

codified in sections 152.210 and 152.307 of the Finance Code. See Finance Code, 75th Leg., R.S., ch . 1008, 1997 Tex. Gen. Laws 3091 , 3372, 3374. The revisor = s note for section 152.210 stated:

(2)

The revised law omits as unnecessary that part of Section 15, V.A.C.S. Article

489d, permitting a license holder to seek judicial review of the commissioner = s findings and order under Chapter

2001, Government Code. Section 2001.171,

Government Code, provides that 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 Chapter 2001,

Government Code. The provision may

therefore be omitted without substantive change. The omitted law reads: A A licensee may seek court review of the

Commissioner = s

findings and order under Chapter 2001, Government Code. @

Tex . Fin. Code Ann . '

152.210 revisor = s

note (Vernon 1998); see also

id . ' 152.307 revisor = s

note (restating by reference the revisor = s note to section 152.210); id . ' 152.506 revisor = s note (stating that the provision

specifically authorizing judicial review of cease and desist orders was deleted

as unnecessary).

Also

in 1997, the Legislature passed sunset review legislation for the TDPRS (1997

enactment). Act of May 31, 1997, 75th Leg., R.S., ch . 1022, 1997 Tex. Gen. Laws 3733 . A Sunset Advisory Commission report on the

TDPRS issued in 1996 during the legislative interim discussed sixteen

issues. See Texas Sunset Advisory Commission, Department of

Protective and Regulatory Services: Staff Report

(1996) (available at Legislative Reference Library). With regard to issue number fifteen, titled A Improve the Administrative Hearings

Process Through Transfer to the State Office of Administrative Hearings, @ the report stated: A This recommendation would transfer the

Department = s APA

hearing function to the State Office of Administrative Hearings. . . . As with the current hearings process, the

decisions by the ALJ would be final unless appealed to court. @

Id . at 147, 151.

Chapter

40 of the Human Resources Code contains general provisions related to the

TDPRS. The 1997 enactment added section

40.066 to the Human Resources Code. Act

of May 31, 1997,

75th Leg., R.S., ch . 1022, 1997 Tex. Gen. Laws 3733 ,

3741. The section required the TDPRS and

the State Office of Administrative Hearings (SOAH) to A adopt

a memorandum of understanding under which the State Office of Administrative

Hearings, on behalf of the department, conducts all contested case hearings

authorized or required by law to be conducted by the department under the

administrative procedure law, Chapter 2001, Government Code. @

Id .

Certain

facilities, homes, and agencies that provide child-care services are regulated

by the TDPRS under Chapter 42 of the Human Resources Code. The 1997 enactment substantially amended section

42.072 of the Human Resources Code, which governs the revocation of a

child-care facility license. See id .

at 3749-50. [16] Section 42.072(b), as amended, provided that

if the TDPRS proposes to suspend, deny, revoke, or refuse to renew a person = s license, registration, or

certification, the person is entitled to a hearing conducted by the SOAH. Id .

at 3749. Section 42.072(e) was

deleted. Subsection (e) had expressly

authorized de novo judicial review and provided for venue in either A Travis

County or the county in which the

person = s

facility is located. @ Id .

The

1997 enactment also added section 42.078 to the Human Resources Code, which

contained the standardized administrative penalty language recommended by the

Sunset Advisory Commission. See id .

at 3751-53. Section 42.078 applied to

the holder of a child-care facility license and authorized administrative

orders imposing a monetary penalty. The

section did not expressly authorize judicial review. Instead, it relied on the independent right

to judicial review provided by section 2001.171 of the APA. [17]

Child-care

administrators are regulated by the TDPRS under Chapter 43 of the Human

Resources Code. The 1997 enactment added

section 43.0106 to the Human Resources Code.

Id . at 3755. The section provided that if the TDPRS A proposes to suspend, revoke, or refuse

to renew a [child-care administrator = s]

license, the person is entitled to a hearing conducted by the State Office of

Administrative Hearings. @ Id . However, the 1997 enactment did not repeal or

amend section 43.011 of the Human Resources Code. Section 43.011, which has not been amended

since 1979, expressly authorizes de novo judicial review of decisions denying

or revoking a child-care administrator = s

license and provides for venue only A in

the county where the person resides. @ Tex .

Hum . Res . Code '

43.011(c)-(d).

Senate

Bill 359 was the TDPRS = s

sunset legislation. Tex. S.B. 359, 75th

Leg., R.S. (1997) (available at Legislative Reference Library). The final legislative bill analysis prepared

for Senate Bill 359 stated that the A language

relating to a hearings and appeals process @

contained in section 42.072 of the Human Resources Code was relocated to

section 42.078. House Comm . on Human Services, Bill Analysis (May 6, 1997), Tex. S.B. 359,

75th Leg., R.S. (1997) (available at Legislative Reference Library). [18] In addition, the Sunset Advisory Commission

issued a post-session report that reviewed the TDPRS = s

sunset legislation. See Sunset Advisory Commission, Summary of Sunset

Legislation: 75th Legislature 99-122 (1997) (available at Legislative

Reference Library). The report stated

that A [t]he

Legislature adopted the Sunset Commission = s

recommendation to transfer the Department = s

administrative hearings to the State Office of Administrative Hearings. @

Id . at 104. An attached bill analysis prepared by the

commission stated that the 1997 enactment A deletes

language [from section 42.072 of the Human Resources Code] relating to a

hearing and appeal process and moves this language to section 42.078. @

Id . at 111.

Both

bill analyses were incorrect. Section

42.078 of the Human Resources Code, the new administrative penalty section, did

not contain the judicial review language that had been deleted from section

42.072.

V

The

TDPRS asserts that because section 19(a) of the APTRA was not substantively

amended in 1993 when it was codified, the Legislature has adopted the Third

Court of Appeals = s

interpretation that the provision does not provide an independent right to

judicial review. The TDPRS = s legislative acceptance argument fails

for several reasons, the simplest being that the proper interpretation of

section 2001.171 of the APA is a question of

first impression in this Court. See

Cont = l Cas . Ins. Co. v. Functional Restoration Assocs. , 19 S.W.3d

393, 402 (Tex. 2000) (noting that

A we have never decided this issue @ ).

As stated in part III, the

legislative acceptance rule applies only when the relevant statutory provision

has been interpreted by a court of last resort or given a longstanding construction

by a proper administrative officer.

Section

2001.171 of the APA provides: A 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. @ Tex .

Gov = t Code '

2001.171 (emphasis added). Mega Child

Care and the TLCCA rely on the plain language of section 2001.171. The TDPRS asserts that section 2001.171 A can fairly be read to set forth

necessary C but not sufficient C conditions that must be satisfied to

qualify for any judicial review that the Legislature has provided in the

enabling statute. @

The

Third Court of Appeals = s

interpretation of the phrase A is

entitled to judicial review @

appears to be unique. The TDPRS contends

that the court decisions from states with similar judicial review provisions

are mixed. However, the TDPRS has cited

no cases from other jurisdictions that support the Third Court of Appeals = s interpretation of section 2001.171 of

the APA, and our own extensive research has

located none. Moreover, neither Motorola,

Inc. , Southwest Airlines , nor Foy has been cited by a court

outside of Texas. In any event, we resolve the conflict among

our courts of appeals regarding the proper interpretation of section 2001.171

by applying the plain meaning rule, a well-established rule of statutory

construction in Texas.

Section

311.016 of the Government Code, part of the Code Construction Act, provides:

The

following constructions apply unless the context in which the word or phrase

appears necessarily requires a different construction or unless a different

construction is expressly provided by statute:

. .

. .

(4)

A Is entitled to @

creates or recognizes a right.

Tex . Gov = t Code '

311.016. This construction is consistent

with dictionary definitions of the term A entitle. @ [19]

In

the context of the Texas Administrative Procedure Act, the phrase A is entitled to judicial review @ is unambiguous and, therefore, the

plain language of section 2001.171 of the APA

creates an independent right to judicial review for those who satisfy the

section = s

threshold requirements. As stated in

part III, when the text is unambiguous, a

court may disregard the interpretation supported by the statute = s plain language only if that

interpretation would lead to absurd results.

With regard to section 2001.171, we have no basis to conclude that the

interpretation supported by its plain language would lead to absurd results.

The

TDPRS does not directly assert or cite evidence that implementation of the

plain meaning of section 2001.171 of the APA C that persons who satisfy the section = s threshold requirements are entitled

to judicial review of contested-case decisions made by state agencies subject

to the APA C would

lead to absurd results. However, the

TDPRS relies heavily on the Third Court of Appeals = s

precedent construing section 2001.171, and in Foy , the Third Court of

Appeals stated:

A

theory that APA section 2001.171 entitles

all persons A aggrieved @ to A judicial

review @ in each instance

A invites potentially serious

consequences by ushering an unknown and indeterminate number of agency

proceedings into the contested case category, @

and thus into the reviewing courts, even in such administrative controversies

as the taking away of A good

time @ from

thousands of state prisoners. It is

unlikely that the legislature intended to so overwhelm the few district courts

of Travis county, where suits under APA

section 2001.171 must be decided.

Employees

Ret. Sys. v. Foy , 896 S.W.2d 314, 316 (Tex. App. C Austin

1995, writ denied) (citation omitted).

For

various reasons, the Legislature has exempted certain state agencies and

particular administrative decisions from all or part of the APA. For example, when originally enacted, the

APTRA contained complete exemptions for state agencies wholly financed by

federal funds, the Industrial Accident Board, institutions of higher education,

and suspensions of driver = s

licenses. See APTRA, 64th Leg.,

R.S., ch . 61, 1975 Tex. Gen. Laws 136 , 137, 147. Since 1975, the Legislature has enacted

additional exemptions. One of the

exemptions, section 2001.226 of the APA,

provides:

This

chapter does not apply to a rule or internal procedure of the Texas Department

of Criminal Justice or Texas Board of Criminal Justice that applies to an

inmate or any other person under the custody or control of the department or to

an action taken under that rule or procedure.

Tex . Gov = t Code '

2001.226. This exemption, originally enacted

in 1993, addresses the hypothetical problems raised by the Third Court of

Appeals in its 1995 Foy decision concerning A such

administrative controversies as the taking away of > good

time = from

thousands of state prisoners. @ Foy , 896 S.W.2d at 316 .

The

TDPRS asserts that section 2001.171 of the APA

neither creates a right to judicial review nor waives the state = s sovereign immunity. Our conclusion that section 2001.171 provides

an independent right to judicial review when an agency enabling statute neither

specifically authorizes nor prohibits judicial review is, as a practical

matter, dispositive of the sovereign immunity issue.

Section 2001.174

of the APA provides:

If

the law authorizes review of a decision in a contested case under the

substantial evidence rule or if the law does not define the scope of judicial

review, a court may not substitute its judgment for the judgment of the state

agency on the weight of the evidence on questions committed to agency

discretion but:

(1)

may affirm the agency decision in whole or in part; and

(2)

shall reverse or remand the case for further proceedings if substantial rights

of the appellant have been prejudiced because the administrative findings,

inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency = s

statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence

considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion.

Tex . Gov = t Code '

2001.174.

When

providing an independent right to judicial review in section 2001.171 of the APA,

the Legislature necessarily understood that state agencies would be sued in

court by persons exercising that right, that contested-case decisions of those

agencies would be judicially reviewed under the standards set forth in section

2001.174, and that the challenged administrative decisions would be either

affirmed, reversed, or remanded as provided by section 2001.174. Therefore, we conclude that section 2001.171

provides a limited waiver of sovereign immunity. Cf. Tex. Educ .

Agency v. Leeper , 893 S.W.2d 432, 446 (Tex.

1994) (concluding that the Texas Uniform Declaratory Judgments Act provides a

limited waiver of governmental immunity).

Our

resolution of the sovereign immunity issue is consistent with precedent from

courts of appeals concluding that judicial review provisions waive

immunity. See Gruber v. Tex.

State Bd. of Pharmacy , 619 S.W.2d 564, 567 (Tex. Civ .

App. C San

Antonio 1981, no writ) ( A There

is no question that the appellant is an entitled party to judicial review under

section 19(a) [of the APTRA].

Consequently, the defense of sovereign immunity is not applicable . . .

. @ ); Stanfield v. Tex.

Dep = t

of Pub. Safety , 422 S.W.2d 14, 20 (Tex. Civ . App. C Dallas 1967, writ ref = d n.r.e .) ( A Appellee = s contention that the trial court

lacked jurisdiction because the suit [for judicial review] was one against an

agency of the State of Texas and

that the State cannot be sued without its express consent must be denied. This is so for the very obvious reason that

the Legislature has [in the agency enabling statute] specifically granted such

right to bring the suit. @ ).

The

TDPRS asserts that, even if section 2001.171 of the APA

generally provides an independent right to judicial review, the intent of the

TDPRS = s 1997

sunset review legislation (1997 enactment) was to prohibit judicial review of

administrative decisions revoking a child-care facility license. Section 42.072 of the Human Resources Code,

which governs the revocation of a child-care facility license, is currently

silent with regard to the availability of judicial review; its text neither

expressly authorizes nor prohibits judicial review. See Tex . Hum . Res . Code '

42.072. In 1997, the TDPRS = s sunset review legislation deleted

former section 42.072(e), which had expressly authorized de novo judicial

review and provided for venue in either A Travis

County or the county in which the

person = s

facility is located. @ Act of May 31, 1997, 75th Leg., R.S., ch .

1022, 1997 Tex. Gen. Laws 3733 , 3749.

The

TDPRS argues that A [h]ere,

the Legislature has expressly manifested its intent to foreclose judicial

review of the Department = s

actions @ and,

more specifically, that A [t]he

fact that the Legislature did not repeal the provision allowing for judicial

review of a child-care administrator = s

license but did repeal the provision allowing for judicial review of a

child-care facility = s license

strongly indicates its intent to eliminate the right to judicial review for the

latter category. @ In response, the TLCCA contends that A [t]he changes made to section 42.072,

as a part of a broader set of changes from the 1997 PRS

Sunset Review Process, were intended merely to streamline the PRS

contested case process C by

moving contested cases to SOAH which previously were performed by PRS

in-house C and by

adopting standard statutory language of the Sunset Commission for agencies

involved in licensing sanctions. @

In

the 1997 enactment, the Legislature could have expressly prohibited judicial review

of contested-case decisions made under section 42.072 of the Human Resources

Code. For example, chapter 2260 of the

Government Code establishes an administrative procedure to resolve

breach-of-contract claims against the state, and section 2260.104(f) provides: A Subchapter G, Chapter 2001 [sections

2001.171-178 of the APA], does not apply to

a [contested-case] hearing under this section. @ Tex .

Gov = t Code '

2260.104(f); see also Gen. Servs . Comm = n

v. Little- Tex

Insulation Co. , 39 S.W.3d 591 , 599 (Tex.

2001) ( A [T]he

Legislature has expressly precluded judicial review of the administrative judge = s rulings under Chapter 2260. @ ).

In

this context, certain jurisdictions, including some states that have

incorporated the first sentence of section 15(a) of the 1961 model act in their

administrative procedure acts, have employed special rules of statutory

construction. See, e.g. , Holding = s Little Am. v. Bd. of County

Comm = rs , 670

P.2d 699, 702-03 (Wyo. 1983) ( A The right of judicial review of an

administrative decision is statutory. . . .

And, to preclude judicial review, the statute, if not specific in

withholding that review, must give clear and convincing evidence of an intent

to restrict. @ ). We disagree with this approach. Therefore, we will ascertain and effectuate

the legislative intent in this context without applying a special rule of

statutory construction.

Deleting

the language that authorized judicial review, established a de novo scope of

review, and provided for local venue from section 42.072 of the Human Resources

Code, while retaining the language that authorizes judicial review, establishes

a de novo scope of review, and provides for exclusive local venue contained in

section 43.011, is some evidence of a legislative intent to prohibit judicial

review of contested-case decisions made under section 42.072. However, the TDPRS has provided no

legislative history regarding the 1997 enactment that reflects an intent to

prohibit judicial review of those decisions, and our own research has

discovered none. In fact, the limited

legislative history that is available indicates an intent to maintain rather

than prohibit judicial review.

In

the absence of express statutory language prohibiting judicial review, a

legislative intent to prohibit judicial review must be established by specific

legislative history or other reliable evidence of intent. Given the inconclusive evidence regarding

legislative intent in this case, we conclude that, in enacting the TDPRS = s 1997 sunset review legislation, the

Legislature did not intend to prohibit judicial review of contested-case

decisions made under section 42.072 of the Human Resources Code.

Based

on the foregoing, we conclude that Mega Child Care is entitled to judicial

review of the administrative decision to revoke its child-care facility

license. Accordingly, we affirm the

court of appeals = s

judgment.

____________________________________

Steven Wayne

Smith

Justice

Opinion delivered: September 3, 2004

[1] In its pleading, the TDPRS did not raise or otherwise

discuss Mega Child Care = s failure to comply with section 2001.176(b)(1) of the

APA . See Tex . Gov = t Code ' 2001.176(b) ( A Unless

otherwise provided by statute: (1) the petition must be filed in a Travis County district court; . . . . @ ).

[2] The TDPRS did not make this argument below, and

therefore it was not addressed in the court of appeals = s opinions.

[3] However, the TDPRS did not discuss its legislative

acceptance argument in its brief on the merits.

[4] In support thereof, the TLCCA cited numerous revisor = s notes that accompanied proposed legislative

codifications. The TLCCA contended the

notes reflect that code drafters relied on the plain meaning of section

2001.171 when deleting, as redundant and therefore unnecessary, provisions

contained in the underlying source law that specifically authorized judicial

review.

[5] Ronald L.

Beal, Texas Administrative Practice and Procedure (2000).

[6] See, e.g. , Bay State Harness Horse Racing

& Breeding Ass = n v. State Racing Comm = n , 175

N.E.2d 244, 249 (Mass. 1961) ( A Judicial review may be obtained under [Massachusetts APA C enacted

in 1954] by any person aggrieved by a final decision of an agency > in an adjudicatory proceeding. = @ ); Md.-Nat = l

Capital Park & Planning Comm = n v. Friendship Heights , 468 A.2d 1353 , 1358 (Md. Ct. Spec. App. 1984)

(Section 255(a) of the Maryland APA A reads: > (a) Right

to review C Any party aggrieved by a final decision in a

contested case, whether such decision is affirmative or negative in form, is

entitled to judicial review thereof under this subtitle. = . . . Once the

definitional standard of a contested case is met, there is no need or

requirement for separate jurisdictional authority; entitlement to review is

provided by Section 255 of the Act. @ )

(emphasis in original).

[7] See, e.g. , William J. Curran & Albert M.

Sacks, The Massachusetts Administrative Procedure Act , 37 B.U. L. Rev . 70, 93 (1957) (The Massachusetts APA A resolves legislative silence in favor of judicial

review. @ ); Bernard Schwartz, The Model State Administrative

Procedure Act C Analysis and Critique , 7 Rutgers L. Rev . 431, 456 (1953) ( A > Any

person, = reads section 12(1) of the Act, > aggrieved by a final decision in a contested case,

whether such decision is affirmative or negative in form, is entitled to judicial

review thereof. = In this

language, there is a legislative restatement of the principle of Stark v. Wickard [ 321 U.S. 288 (1944)], that review is

available even in the absence of other express statutory provision therefor , of the requirement of > standing = on the

part of the person seeking review, and of the requirement of ripeness for

review . . . . @ ) (emphasis added).

[8] In 1957, council members included the Chief Justice

of the Supreme Court, two court of appeals justices, two district judges, and

the chairmen of the Senate and House Civil Judiciary Committees. See Act of Feb. 12, 19 53 , 53d Leg., R.S., ch . 6, 1953 Tex. Gen. Laws 12 .

[9] A bill analysis of the Senate legislation stated: A The bill is intended to provide full and uniform

procedure for state administrative agencies.

It was prepared by the Committee on Administrative Law of the State Bar

of Texas, using as a basis, the 1961 revised Model State Administrative

Procedure Act, a Uniform Act but changing it in some respects and adapting it

to Texas practice. @ Sen . Comm . on Jurisprudence, Bill Analysis , Tex. S.B. 16, 62d Leg., R.S. (1971) (available at

State Archives).

[10] Senate Bill 41's final legislative title read: A An Act providing standards for state administrative

practices and procedures; providing procedures for adoption of rules by state

agencies; providing for the creation of a state register and its contents; providing

for review of state agency proceedings; providing for declaratory judgments and

procedures for judicial review . . . . @ APTRA, 64th Leg., R.S., ch .

61, 1975 Tex. Gen. Laws 136 (emphasis added).

[11] In addition, the Third Court of Appeals did not

discuss decisions from states with similar APA language. See, e.g. , Buras

v. Bd. of Trs . of Police Pension Fund , 367 So.2d

849, 851 (La. 1979) (judicial review available under state APA , which incorporated first sentence of section 15(a) of 1961 model act,

even if appeal not authorized by agency enabling statute); Rybinski

v. State Employees = Ret. Comm = n , 378 A.2d

547, 553 (Conn. 1977) (same); Minn. Pub. Interest Research Group v. Minn. Envtl . Quality Council , 237 N.W.2d 375, 382 ( Minn. 1975) (same); Martin v. Harrah Indep .

Sch . Dist. , 543 P.2d 1370, 1375 ( Okla. 1975) (same); Elk Point Indep .

Sch . Dist. No. 3 v. State Comm = n on Elementary & Secondary Educ . , 187 N.W.2d 666, 670 (S.D. 1971) (same).

[12] Whether section 19(a) of the APTRA provided an

independent right to judicial review was not before the Court. However, in order to place a relevant legal

argument in context, the Attorney General stated: A Before enactment of the APA , if the substantive legislation was silent on the ability to obtain

judicial review, that right was not implied except as necessary to afford due

process and protect constitutional rights. . . . Thus, ' 19(a)

would provide a right to judicial review, not previously existing under

substantive legislation, when a proceeding qualifies as a > contested case = and

when a party is > aggrieved = by the

decision. Given these two hurdles to

overcome, unless subsequent decisions construe > contested

case = very broadly, the additional review provided by ' 19(a) will be quite limited. @ Post Argument

Brief for Texas Department of Water Resources at 6 , Hooks v. Tex. Dep = t of Water Res. ,

611 S.W.2d 417 (Tex. 1981) (cause no. B-9733) (filed Jan. 29, 1981 ) (available at State Archives) (citations omitted).

[13] Section 1 of the enactment provided:

Section 4B. ADJUDICATION OF CLAIMS. (a) The executive

director of the Employees Retirement System of Texas has exclusive authority to

decide all questions relating to enrollment in or payment of claims arising

from programs or coverages provided under authority

of this Act, other than questions relating to payment of claims by a health

maintenance organization.

(b) A decision by the executive director under this

section may be appealed only to the trustee.

An appeal to the trustee is a contested case under the Administrative

Procedure and Texas Register Act (Article 6252-13a, Vernon = s Texas Civil Statutes).

(c) On appeal of a decision made by the trustee under

this section, the standard of review is by substantial evidence.

Id . at 686 (emphasis in original).

[14] A House bill analysis stated: A As proposed, S.B. 771 would authorize the Board of

Trustees of the Employment [sic] Retirement System to adopt rules of procedure

for determining contested insurance cases.

The Administrative Procedure and Texas Register Act would be made

applicable to such cases. Appeals from decisions

would be to the District Court of Travis County. This bill provides statutory authority to the

Employment [sic] System of Texas to continue the practices in effect in

handling disputed insurance cases prior to the [Third Court of Appeals = s] Blount decision. @ House Comm . on Insurance, Bill Analysis , Tex. S.B. 771, 69th Leg., R.S. (1985) (available at

Legislative Reference Library).

[15] Contra Beyer v. Employees Ret. Sys. ,

808 S.W.2d 622, 626 (Tex. App. C Austin 1991, writ denied) ( A By stating that the substantial-evidence rule applies > on appeal = from

the Board = s decision, [section 4B] authorizes, by necessary

implication, a suit for judicial review in a district court. The implication is compelled because the

expression > substantial evidence = would

be meaningless otherwise. @ ).

[16] Section 37 of the enactment provided:

Sec. 42.072. LICENSE OR REGISTRATION DENIAL, SUSPENSION,

OR REVOCATION. (a) The department [ division ] may suspend,

deny, [ or ] revoke, or refuse to renew the license, registration,

or certification of approval of a facility or family home that does not

comply with the requirements of this chapter, the standards and rules of the

department, or the specific terms of the license, registration, or

certification. The department may

revoke the probation of a person whose license or registration is suspended if

the person violates a term of the conditions of probation.

(b) If the department proposes to take an action

under Subsection (a), the person is entitled to a hearing conducted by the

State Office of Administrative Hearings.

Proceedings for a disciplinary action are governed by the administrative

procedure law, Chapter 2001, Government Code.

Rules of practice adopted by the board under Section 2001.004,

Government Code, applicable to the proceedings for a disciplinary action may

not conflict with rules adopted by the State Office of Administrative Hearings . [ The division shall notify the person

operating or proposing to operate a facility of the reasons for the denial or

revocation and of the person = s

right to appeal the decision within 30 days after receiving the notice. ]

(c) [ A person who wishes to appeal a license denial

or revocation shall notify the director by certified mail within 30 days after

receiving the notice required in Subsection (b) of this section. The person shall send a copy of the notice of

appeal to the assigned division representative.

[ (d) The denial or revocation of a license or

certification and the appeal from that action are governed by the procedure for

a contested case hearing under Chapter 2001, Government Code.

[ (e) A person whose license has been denied or

revoked may challenge the decision by filing a suit in a district court of Travis County or the county in which the person = s facility is located within 30 days after receiving

the decision. The trial shall be de

novo.

[ (f) Records of the hearing shall be kept for two

years after a decision is rendered. On

request, and at the person = s

own expense, the division shall supply a copy of the verbatim transcript of the

hearing to a person appealing a license denial or revocation in district court.

[ (g) A person may continue to operate a facility

during an appeal of a license denial or revocation unless the division has

obtained injunctive relief under Section 42.074 or civil penalties under

Section 42.075 or the facility has been closed under Section 42.073.

[ (h) ] A person whose license, registration ,

or certification is revoked may not apply for any license, registration ,

or certification under this chapter before the second anniversary of the date

on which the revocation takes effect by department or court order.

(d) The department by rule may provide for denial of

an application or renewal for a licensed facility, for certification of

approval of a facility, or for registering a family home or may revoke a

facility = s license or certification or a family home = s registration based on findings of criminal history

as a result of a background or criminal history check.

Id . (emphasis and strikeout in original).

[17] For example, subsection (o) provided: A Judicial review of the order [imposing a monetary penalty] : (1) is instituted by

filing a petition as provided by Subchapter G, Chapter 2001, Government Code;

and (2) is under the substantial evidence rule. @ Id . at 3753 (emphasis in original).

[18] The bill analysis provided:

SECTION

30. Amends Section 42.072(a)-(d).

(a) Includes suspension and refusal to renew the

license or certification of approval of a facility as penalties for a facility

that does not comply with the rules of DPRS or specific terms of the license or

certification. Extends to DPRS the

authority to revoke the probation of a license holder whose license is

suspended if a term of the conditions of probation is violated.

(b) Adds standard language developed by the Sunset

Commission. Entitles licensees to a hearing

conducted by the State Office of Administrative Hearings before any sanction

may be taken against their license.

(c) Reletters subsections

and deletes language relating to a hearings and appeals process. Relocates this language to Section 42.078 . Specifies that a person whose license,

registration, or certification is revoked may not apply for any license,

registration, or certification under this chapter until two years after the

date on which the revocation occurred.

(d) Authorizes DPRS, by rule, to provide for denial of

an application or renewal for a licensed facility or for registering a family

home or may revoke a facility = s license or a family home = s registration based on findings of criminal history as

a result of a background or criminal history check.

Id . (emphasis added).

[19] In the current edition of the leading legal

dictionary, A entitle @ is

defined as: A [t]o grant a legal right to or qualify for. @ Black = s Law Dictionary 553 (7th ed. 1999).

In Webster = s second edition, published in 1954, the term was

defined as: A [t]o give a right or legal title to; to qualify (one)

for (something) . . . . @ Webster = s New International Dictionary 854 (Merriam-Webster, 2d ed. 1954).