David Gonzalez v. Texas Education Agency

Gonzalez v. Texas Educ. Agency

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-92-440-CV

DAVID GONZALEZ,

APPELLANT

vs.

TEXAS EDUCATION AGENCY,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. 91-7563, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

PER CURIAM

This is a suit for judicial review of a decision of the commissioner of education.

Appellant David Gonzalez was discharged from his employment as a teacher with the Calhoun

County Independent School District. Gonzalez appealed the action of the board of trustees by

filing a notice of appeal with the commissioner of education. See Act of May 20, 1971, 62d Leg.,

R.S., ch. 405, sec. 2, § 13.115(a), 1971 Tex. Gen. Laws 1449 , 1478 ( Tex. Educ. Code Ann. §

13.115 (a), since amended). Gonzalez did not file a petition for review within forty-five days after

he received notice of the board of trustees' action, but later filed a motion for the commissioner

to receive a late petition for review. See 13 Tex. Reg. 5969 , 5970 (1988) (former 19 Tex.

Admin. Code § 157.9 (a), since repealed and recodified at 19 Tex. Admin. Code § 157.1051 (a)

(1994)) ("Except where otherwise provided by law, petitioner shall file with the commissioner a

petition for review within 45 calendar days after the decision, order or ruling complained of is

first communicated to petitioner"). The commissioner concluded that Gonzalez failed to file a

timely petition for review and dismissed Gonzalez' administrative appeal for lack of jurisdiction.

Gonzalez filed a suit for judicial review in the district court of Travis County

challenging the commissioner's decision. (1) See Tex. Educ. Code Ann. § 13.115 (c) (West 1991).

The district court affirmed the decision of appellee Texas Education Agency. Gonzalez appeals

and urges five points of error. We will affirm.

Gonzalez' first point of error claims that the district court erred in failing to hold

that the commissioner's decision was erroneous because the provision in former section 157.9(a)

that allegedly requires Gonzalez to file a petition for review within forty-five days either (1) is

inapplicable in an appeal to the commissioner under section 13.115(a) or (2) conflicts with section

13.115(a). (2) We cannot address the merits of his first point of error, however, as Gonzalez has

waived it by not including it in his motion for rehearing before the commissioner. (3) Burke v.

Central Educ. Agency , 725 S.W.2d 393, 395-97 (Tex. App.--Austin 1987, writ ref'd n.r.e.); see

Administrative Procedure Act, Tex. Gov't Code Ann. § 2001.145 (West 1994). (4)

Gonzalez admits that he did not preserve his first point of error in his motion for

rehearing, but instead argues that the "[district] court has jurisdiction to consider a complaint

alleging that an agency has acted in excess of its statutory authority, although such complaint has

not been preserved in a motion for a rehearing before the agency." Railroad Comm'n v. Bishop

Petroleum, Inc. , 736 S.W.2d 724, 738 (Tex. App.--Waco 1987), aff'd in part and rev'd in part

on other grounds , 751 S.W.2d 485 (Tex. 1988) (citing City of Sherman v. Public Util. Comm'n ,

643 S.W.2d 681, 683 (Tex. 1983)). Although Bishop Petroleum 's broad statement of an

exception to the doctrine of exhaustion of administration remedies may be correct in certain

circumstances, Gonzalez's action is not such an instance. See City of Sherman , 643 S.W.2d at

683 ("As a general rule, judicial review of administrative orders is not available unless all

administrative remedies have been pursued to the fullest extent."); APA § 2001.171 ("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.").

City of Sherman reaffirmed the following exception to the doctrine of exhaustion

of administration remedies stated in Westheimer Independent School District v. Brockette :

It follows, however, that intervention by the court in administrative proceedings

may be permissible when an agency is exercising authority beyond its statutorily

conferred powers. Specifically, it has been held that when there is an absence of

jurisdiction in an administrative agency, then the doctrine of exhaustion of

administrative remedies is not applicable.

City of Sherman , 643 S.W.2d at 683 ; Brockette , 567 S.W.2d 780, 785 (Tex. 1978). Both City

of Sherman and Brockette were suits originating in district court to prohibit a state agency from

conducting an administrative-law action when the agency had no jurisdiction to hear the matter.

Gonzalez obviously agrees that the commissioner generally has jurisdiction over

appeals of teacher discharges because it was Gonzalez who appealed to the commissioner. This,

therefore, is not a case in which the agency is acting wholly outside its jurisdiction, but rather a

case in which Gonzalez seeks to prove the commissioner may have made an incorrect decision

about the law. The Brockette exception cannot mean that a party complaining in district court of

adverse agency action is relieved from filing a motion for rehearing before the agency because the

agency has exceeded its statutory authority by acting wrongfully in some fashion. Were this the

law, the exception would swallow the rule because the legislature has never statutorily authorized

state agencies to act inconsistent with the law. Gonzalez failed to preserve his first point of error

by presenting it in a motion for rehearing before the commissioner and, thus, has waived it. Point

of error one is overruled.

In points of error two and three, Gonzalez argues that the district court erred in

failing to hold that the commissioner's decision was erroneous because the decision denied

Gonzalez his right to counsel (point two) and denied him due process (point three). Gonzalez did

not raise these points in his motion for rehearing before the commissioner, and the points have

been waived. Burke , 725 S.W.2d at 395-97 (in motion for rehearing complaining party must set

forth (1) particular action by agency that complaining party alleges was error and (2) legal basis

on which claim of error rests). Points of error two and three are overruled.

In points of error four and five, Gonzalez claims that the district court erred in

failing to hold that the commissioner's decision was erroneous because the decision was arbitrary,

capricious, and an abuse of discretion because it failed to apply equitable principles (point four)

and it failed to recognize that Gonzalez's inability to obtain counsel constituted good cause for his

delay in filing his petition for review (point five). Gonzalez's argument in his brief under points

four and five is intertwined with his argument under points of error two and three, which have

not been preserved. Stripped of his right-to-counsel and due-process arguments, Gonzalez claims

that equity demanded that the commissioner grant the motion for the commissioner to receive a

late petition for review. (5)

The administrative record reveals, however, that the commissioner informed

Gonzalez on July 6, 1989, that he needed to file a petition for review by July 31, 1989. Gonzalez

filed his motion for the commissioner to receive a late petition for review on February 14, 1990,

198 days after the deadline. During that time Gonzalez never contacted the commissioner to

explain that he had no attorney to represent him or to request a pro se extension of time.

Although we understand the difficulty a layperson faces in representing himself in an

administrative-law proceeding, the commissioner's action in denying the motion to receive a late

petition for review was not inequitable in light of Gonzalez's inaction. We overrule points of

error four and five.

The judgment of the district court is affirmed.

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: August 17, 1994

Publish

1. Gonzalez actually sued the Texas Education Agency rather that the person who made

the decision, Thomas E. Anderson, Jr., Interim Commissioner of Education.

2. Gonzalez argues that the introductory clause to former section 157.9(a), "Except where

otherwise prohibited by law," was specifically included to exempt persons appealing under

section 13.115(a) from complying with the additional requirement under former section

157.9(a) of filing a petition for review. See 13 Tex. Reg. 5969 (1988) ("Some commenters

noted the discrepancy [between proposed section 157.9(a)] with Texas Education Code, §13. 115,

requiring a notice of appeal to be filed within 15 days of the decision. An introductory clause was

added stating that the rule controls except where provided by law."). As we will explain, we do

not reach the questions of: (1) whether a person appealing under section 13.115(a) must also

comply with the additional requirement under former section 157.9(a) of filing a petition for

review in order to perfect the commissioner's jurisdiction over the appeal; or (2) whether former

section 157.9(a) exempts a person appealing under section 13.115(a) from filing a petition for

review for any purpose.

3. Gonzalez' motion for rehearing before the commissioner is straightforward:

"[Gonzalez] presents one issue on rehearing. The existence of just cause should be

determined by an equitable analysis in ruling on a Motion to Receive Out of Time Appeal. "

4. All citations in this opinion are to the current Administrative Procedure Act rather than

the former Administrative Procedure and Texas Register Act, because the recent codification

did not substantively change the law. Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 47,

1993 Tex. Gen. Laws 583 , 986.

5. Because of our disposition of point of error one, we assume for the purposes of this

appeal only that the filing of the petition for review was a jurisdictional prerequisite.