Ellis H. Gilleland v. Guy A. Sheppard, Secretary of the Texas State Board of Veterinary Medical Examiners

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00452-CV

Ellis H. Gilleland, Appellant

v.

Guy A. Sheppard, Secretary of the Texas State Board of

Veterinary Medical Examiners, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 91-12246, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

Appellant Ellis H. Gilleland challenges an adverse judgment on his petition for writ

of mandamus against appellee Guy A. Sheppard, in his capacity as Secretary of the Texas State

Board of Veterinary Medical Examiners (Board). Gilleland seeks to compel Sheppard to initiate

a contested case proceeding against two veterinarians, claiming that 22 Texas Administrative Code

section 575.9 created a ministerial duty that Sheppard must perform.

Gilleland originally filed his petition for writ of mandamus on August 28, 1991.

A hearing on the petition was held on October 24, 1991. Without reaching the merits, the trial

court dismissed the petition with prejudice after it found that Gilleland had filed frivolous and

groundless motions. This Court reversed the dismissal because we concluded that the dismissal

did not meet the standards set by the Texas Supreme Court for death-penalty sanctions since the

trial court had not first considered the imposition of lesser sanctions. Gilleland v. Sheppard ,

No. 03-92-00183-CV (Tex. App.--Austin Nov. 3, 1993, no writ) (not designated for publication);

see TransAmerican Natural Gas Corp. v. Powell , 811 S.W.2d 913 (Tex. 1991). On remand,

Sheppard filed a "Suggestion of Mootness" which was heard on May 3, 1994. The trial court

dismissed the mandamus action as moot because an amendment to section 575.9 clearly made the

act Gilleland seeks to compel discretionary. We will affirm the trial court's judgment.

I. Hearing on the "Suggestion of Mootness"

In points of error one, three, and twenty-three, Gilleland complains that the trial

court erred in conducting the May 3, 1994 hearing because the case was "under submission" to

the Honorable Joseph Hart. Gilleland's complaint is that Judge Hart, the judge who heard the

merits of the original case, should also have heard the "Suggestion of Mootness." Gilleland cites

Texas Rules of Civil Procedure 1 and 301, Canon 3(B)(9) of the Code of Judicial Conduct, and

the due process clauses of the U.S. and Texas constitutions as authority. See U.S. Const. amend.

V, XIV; Tex. Const. art. I, § 19. None of the authorities cited guarantee that a specific judge in

Travis County will hear a motion filed in a pending case. The trial court specifically considered

whether it was appropriate under the local rules (1) to hear the case and decided that it was.

Gilleland does not present us with any authority that indicates the decision was an abuse of

discretion. We overrule points of error one, three, and twenty-three.

Point of error two complains that the dismissal hearing did not comply with the

mandate of this Court, which had reversed the earlier dismissal and remanded the case to the trial

court. We held only that the trial court had erred because it had not considered lesser sanctions

before striking Gilleland's motions and dismissing his case with prejudice. A general remand

does not guarantee a hearing on the merits if one is not warranted. Stein v. Highland Park Indep.

Sch. Dist. , 574 S.W.2d 807, 808 (Tex. Civ. App.--Texarkana 1978, writ dism'd) (trial court had

discretion to dismiss case remanded for trial when plaintiff did not comply with its subsequent

order to replead). Point of error two is overruled.

II. Res Judicata

In point of error four, Gilleland complains that res judicata precluded the trial

court's consideration of the mootness issue because this Court had already addressed the issue on

a motion for rehearing. We disagree. Sheppard filed a motion for rehearing when we reversed

the first dismissal in this case, protesting that he should not be assessed all costs of the appeal.

The basis for his argument was two-fold: first, that Gilleland had filed unneeded portions of the

record and had failed to file needed portions, and alternatively, that Gilleland should bear the costs

of appeal since the case had become moot while on appeal. This Court simply overruled the

motion; our ruling did not address the merits of the mootness argument. We overrule point of

error four.

III. Findings of Fact

In points of error six through ten, Gilleland complains of various findings of fact

on the basis that they are not properly findings of fact or that they misstate facts. His arguments

are without merit. We overrule points of error six through ten.

IV. No Hearing on Motion

In point of error twenty, Gilleland complains that the trial court abused its

discretion by not setting and hearing his "Objection to Kangaroo Court Order." He cites Texas

Rule of Civil Procedure 1; Code of Judicial Conduct, Canons 3(A) and (B)(2),(5),(6),(8) and (9);

and the due process clauses of the United States and Texas Constitution. See U.S. Const. amend.

V, XIV; Tex. Const. art. I, § 19. None of the authority cited is pertinent. The trial court's

decision to hold a hearing on a motion for a new trial (2) is discretionary if the objection involves

only legal issues. University of Tex. v. Morris , 352 S.W.2d 947, 949 (Tex. 1962)("Whether the

court will hear the movant on his motion is a matter within the discretion of the trial court when

it presents solely a question of law"). We overrule point of error twenty.

V. Description of Case

Point of error twenty-one, which takes issue with the statement in the judgment that

Gilleland "demands the Veterinary Board docket a case against two veterinarians," is without

merit. We overrule point of error twenty-one.

VI. Retroactive Application of an Amendment to section 575.9

In points of error five, eleven through nineteen, and twenty-two, Gilleland

complains that the trial court erred by holding that 22 Texas Administrative Code section 575.9,

as revised effective July 27, 1992, mooted his petition for writ of mandamus because he filed his

complaint with the Board on March 26, 1990 and his petition for writ of mandamus on August

28, 1991. We disagree.

Analysis of the retroactivity of a regulation requires consideration of two issues:

first, whether the agency intended that the regulation be retroactively applied, and second,

whether retroactive application would violate constitutional provisions.

A. Whether the 1992 amendments to section 575.9 were intended to apply

retroactively

We first consider whether the Board intended the 1992 amendments to section

575.9 to apply retroactively. Section 575.9 has been amended twice. After the second

amendment, effective July 27, 1992, the section now reads:

Upon receipt of a complaint in which sufficient evidence exists to have a good

cause to believe that violations of the Veterinary Licensing Act, Texas Civil

Statutes, Article 8890, and/or rules of professional conduct [sic], (3) the board

secretary shall cause the complaint to be docketed as a pending proceeding and

shall cause notice to be served thereon by certified or registered mail.

22 Tex. Admin. Code § 575.9 (West 1995).

Generally, courts presume that a regulation operates prospectively rather than

retroactively. Ex Parte Abell , 613 S.W.2d 255, 258 (Tex. 1981). A regulation will not be

applied retroactively unless it appears that the agency intended to apply it to both past and future

transactions. Id . In this case, the agency expressed its intent regarding the 1992 amendments in

the preamble to the proposed amendments:

The Texas Board of Veterinary Medical Examiners proposes an amendment to

§ 575.9 concerning docketing and numbering of causes, and service in order to

clarify the original intent of the rule. The rule as presently written could be

misinterpreted to imply that the secretary dockets all complaints received for board

action, when in fact the original intent was that the board secretary, rather than

the executive director, dockets complaints for board action when the board

secretary feels that action is warranted.

17 Tex. Reg. 2176 (March 24, 1992) (emphasis added).

Clearly, the agency saw the amendment of the regulation as a clarification of an

existing rule rather than a change. The amendment of the rule may, as Gilleland protested below,

be self-serving. However, absent constitutional prohibitions, the Board could have promulgated

a new regulation and provided that it apply to all pending cases. See Texas Dep't of Health v.

Long , 659 S.W.2d 158, 160 (Tex. App.--Austin 1986, no writ); see also Texas Water Comm'n v.

Wright , 464 S.W.2d 642, 648-49 (Tex. 1971). Since the Board intends for the amendments to

section 575.9 to apply to all pending cases, the presumption that the rule should be applied

prospectively is rebutted. Further, the agency's intent prevails unless constitutional prohibitions

prescribe retroactive application.

B. Whether retroactive application of section 575.9 would violate constitutional

prohibitions

We now consider whether retroactive application of the amendments to section

575.9 would violate constitutional prohibitions. Article I, section 16 of the Texas Constitution

prohibits laws that impair vested rights. (4) Gilleland claims that he had the vested right to require

the Secretary to docket a case before the regulation was changed. We hold that Gilleland did not

have a vested right to have the case docketed because (1) section 575.9, before the 1992

amendment, did not require the Secretary to docket every complaint received, and (2) even if

section 575.9 had required the Secretary to docket every complaint, the docketing of the complaint

is procedural and remedial and therefore did not create a vested right that precludes retroactive

application of the subsequent rule change.

1. Whether section 575.9, before the 1992 amendment, created a

mandatory duty to docket a case

After the first amendment, effective March 22, 1988, section 575.9 provided:

Upon receipt of a complaint or other pleading, which is intended to institute a

contested proceeding before the board and complies with these sections as to form

and content , the board secretary shall cause to be docketed the same as a pending

proceeding and shall cause notice to be served thereon by personal service or

registered mail.

12 Tex. Reg. 3815 (October 16, 1987) (proposed) (deletions omitted); 13 Tex. Reg. 1189 (March

8, 1988) (adopted).

This version, in effect when Gilleland filed his complaint, was ambiguous because

it does not provide who must intend the complaint to institute a contested proceeding. However,

the agency stated its interpretation in its comments when it adopted the amendments:

The amendment requires the board secretary, who is a DVM, to docket cases being

brought before the board.

The amendment requires that a licensed practitioner (board secretary) determine

which complaints will be brought before the board for disciplinary action and

allows for service of such hearing to be made by registered mail.

13 Tex. Reg. 1189 (March 8, 1988) (emphasis added).

An agency's interpretation of its rules is entitled to deference by the courts. Public

Util. Comm'n v. Gulf States Utils. Co ., 809 S.W.2d 201, 207 (Tex. 1991); North Alamo Water

Supply Corp. v. Texas Dep't of Health , 839 S.W.2d 448, 455 (Tex. App.--Austin 1992, writ

denied). "Our review is limited to determining whether the administrative interpretation 'is plainly

erroneous or inconsistent with the regulation.'" Gulf States Utils. Co. , 809 S.W.2d at 207

( quoting United States v. Larionoff , 431 U.S. 864, 872 (1977)). In this case, the agency's

interpretation comports with the statutes regulating the Board, which clearly anticipate that some

complaints will be dismissed. See Tex. Rev. Civ. Stat. Ann. art. 8890, § 18B(a)(3) (West Supp.

1995) (Board shall keep record of explanation of the legal basis and reason for a complaint that

is dismissed). Also, the agency's interpretation comports with general ideas of administrative

efficiency, which recognize that prosecutorial entities must exercise discretion in choosing which

cases to pursue. See , e.g . Lewright v. Bell , 63 S.W.2d 623 , 624 (Tex. 1901) (mandamus

inappropriate because, in spite of mandatory language of statute, attorney general exercises

discretion in deciding which cases to bring because he must find that there is reasonable ground

to believe that statute has been violated and that evidence necessary to successful prosecution of

suit can be procured). We conclude that the agency's interpretation that section 575.9 allowed

the Secretary discretion in initiating contested case hearings is not plainly erroneous or

inconsistent with the regulation.

2. Whether section 575.9 created a "vested right"

Further, even if the agency's interpretation of the 1988 version of section 575.9

is erroneous, the 1992 amendment applies retroactively unless the earlier version created a vested

right in Gilleland to have his complaint docketed. Laws may not operate retroactively to eliminate

or impair vested substantive rights acquired under existing laws, nor may they create new

obligations, impose new duties, or adopt new disabilities in respect to past transactions or

considerations. Abell , 613 S.W.2d at 260 . A "vested right" must be more than a mere

expectation that the present laws will continue; it must be an entitlement to the present or future

enjoyment of a demand or a legal exemption from the demand made by another. Id . at 261.

Further, no litigant has a vested right in statutes or rules which affect a remedy or are procedural

in nature. Id .

Gilleland's claim that section 575.9 created a right to have his complaint brought

before the board may best be analogized to a claim based on a statutory cause of action, although

the "right" Gilleland claims is not as strong as the right to a cause of action since the state, not

Gilleland, is the real party in interest in a disciplinary proceeding. See Tex. Rev. Civ. Stat. Ann.

art. 8890(7)a and 8(a) (Board effectuates Veterinary Licensing Act and sets rules of professional

conduct); 14B(a) (Board imposes administrative penalties). Generally, if a cause of action is based

on a statute, the repeal or amendment of that statute is given immediate effect. Knight v.

International Harvester Credit Corp. , 627 S.W.2d 382, 384 (Tex. 1982); Dickson v. Navarro

County Levee Improvement Dist. No. 3 , 139 S.W.2d 257, 259 (Tex. 1940); Aetna Ins. Co. v.

Richardelle , 528 S.W.2d 280, 285-86 (Tex. Civ. App.--Corpus Christi 1975, no writ). Since a

cause of action expires upon amendment of the statute that created it, any right to have the case

docketed expired upon amendment of the regulation that purportedly created such a right. (5)

Gilleland relies on Texas Department of Public Safety v. Seifcik , 751 S.W.2d 239

(Tex. App.--San Antonio 1988, no writ), to support his argument that the changes to section 575.9

cannot be applied retroactively. The statute at issue in Seifcik eliminated a trial judge's discretion

to grant probation when the suspect in a driving while intoxicated case refused to take a breath

test. The court held that retroactive application of the amended law would be unconstitutional

because it would deprive the accused of substantial protection. Id . at 240. Seifcik is

distinguishable because it involved the imposition of a new disability rather than the elimination

of a vested right. Further, the underlying rationale was that it would be unfair for an accused to

have chosen a particular course in reliance on existing law, only to have that law change. Id .

(denying probation would impose new disability "unforeseen at the time he elected to refuse the

breath test offered by the police"); see also Wright , 464 S.W.2d at 649 (changing position in

reliance on law may create a vested right). Gilleland did not change his position in reliance on

the prior regulation.

Gilleland's claim is a claim to a particular remedy. No person has a vested right

to a particular remedy according to law. Aetna Ins. , 528 S.W.2d at 284 . Gilleland still had the

right to file a complaint and to have the complaint investigated. He simply did not, as he expected

to, have the entire Board hear his complaint. To the extent it existed, such a right was remedial

and procedural and did not create a vested right.

3. Conclusion regarding constitutional prohibitions to retroactive

application of section 575.9

We conclude that the docketing of a complaint is remedial and procedural rather

than substantive. Therefore, even if the prior rule had required the Secretary to docket all

complaints, that rule did not create a vested right that precludes application of the 1992

amendment.

C. Whether the Petition is Moot

Points of error seventeen and eighteen additionally challenge the trial court's

conclusion that the petition for writ of mandamus is moot. A matter becomes moot when it does

not rest on an existing right. State v. Gibson Products Co., Inc. , 699 S.W.2d 640, 641 (Tex.

App.--Waco 1985, no writ); James v. City of Round Rock , 630 S.W.2d 466, 467 (Tex.

App.--Austin 1982, no writ). A case may become moot when new legislation or acts are passed

which supersede existing legislation. Gibson , 699 S.W.2d at 641 (State's suit to enjoin violations

of Blue Laws moot when Blue Laws repealed); Long , 659 S.W.2d at 161 (suit to enjoin

department from violating its own rule moot when rule eliminated); James , 630 S.W.2d at 467-68

(suit challenging zoning ordinance moot when ordinance repealed). A matter becomes moot when

the sought-for relief cannot be granted. James , 630 S.W.2d at 469 .

Gilleland argues that his petition for writ of mandamus is not moot because either

version of section 575.9 allows the remedy he seeks. The current version of section 575.9

certainly allows the Secretary to docket the cases he deems appropriate. However, a writ of

mandamus will not issue to compel the performance of discretionary acts. Anderson v. City of

Seven Points , 806 S.W.2d 791, 793 (Tex. 1991). Therefore, Gilleland has no right to a

mandamus under the current rule.

Gilleland further argues that his cause is not moot because the changes to section

575.9 do not apply retroactively. We have already concluded that the amendments to section

575.9 do apply retroactively. Since the petition for writ of mandamus was based on the prior

regulation, and the prior regulation does not determine the outcome, a valid controversy no longer

exists. Accordingly, we hold that the petition for writ of mandamus is moot. We overrule points

of error five, eleven through nineteen, and twenty-two.

VII. Conclusion

Finding no merit in the points of error, we affirm the trial court's judgment.

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: May 3, 1995

Do Not Publish

1. Travis County has a centralized docket system whereby any of the district judges in the

county can hear and decide any case set for submission on the central docket.

2. The character of a motion is judged by its substance rather than by its form or caption.

U.S. Fire Ins. Co. v. State , 843 S.W.2d 283, 284 (Tex. App.--Austin 1992, writ denied). Since

Gilleland's "Objection to Kangaroo Court Order" complained of the judgment and asked that it

be vacated, it is in effect a motion for a new trial.

3. It appears that the regulation should read "upon receipt of a complaint in which sufficient

evidence exists to have a good cause to believe that violations of the Veterinary Licensing Act,

Texas Civil Statutes, Article 8890, and/or rules of professional conduct have occurred . . . ."

We read the words "have occurred" into the regulation since courts add words or phrases

when necessary to effectuate the intent of the regulation. See Sweeny Hosp. Dist. v. Carr , 378

S.W.2d 40, 47 (Tex. 1964).

4. Article I, Section 16 provides:

No bill of attainder, ex post facto law, retroactive law, or any law impairing the

obligation of contracts, shall be made.

5. Other cases finding that changes in law could be retroactively applied even though they

affected pending cases include Abell , 613 S.W.2d at 262 (promulgation of statute creating

evidentiary privilege); Exxon Corp. v. Brecheen , 526 S.W.2d 519, 525 (Tex. 1975)(change in

statute concerning admissible evidence); Regal Properties v. Donovitz , 479 S.W.2d 748, 751

(Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.)(change in jurisdiction of court in which

litigation was pending).