in Re Texas State Board of Public Accountancy

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00280-CV

In re Texas State Board of Public Accountancy

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

O P I N I O N

The Texas State Board of Public Accountancy, relator in this original proceeding, has

filed a petition for writ of mandamus, complaining of the trial court's order denying the Board's

motion for protective order and allowing the real parties in interest, three individual accountants who

sought judicial review of the Board's disciplinary decisions, to conduct discovery in their suits for

judicial review. (1) See Tex. R. App. P. 52.8. Because the statutes governing judicial review of agency

proceedings do not provide for the application of general rules of discovery to administrative

proceedings, we conditionally grant mandamus relief.

Judicial review of an administrative decision is conducted under the Administrative

Procedure Act ("APA"), applying a strict construction of the governing statutes. See City of

Houston v. Jackson , 192 S.W.3d 764, 770 (Tex. 2006) (courts should strictly construe statutes

waiving sovereign and governmental immunity); Marble Falls Indep. Sch. Dist. v. Scott , 275 S.W.3d

558 , 566 n.4 (Tex. App.--Austin 2008, pet. filed) ("When considering provisions governing

statutorily granted judicial review of administrative decisions, we must adhere strictly to the rules

as set by the legislature . . . ."); see also Tex. Gov't Code Ann. § 311.034 (West Supp. 2008) ("[A]

statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by

clear and unambiguous language."); Texas Workers' Comp. Ins. Fund v. Ashy , 972 S.W.2d 208, 210

(Tex. App.--Beaumont 1998, pet. denied) ("There being no common law right to judicial review

of an administrative decision, one's appellate remedy is strictly statutory."). Our primary objective

in construing a statute is to ascertain and give effect to the Legislature's intent, beginning with the

plain meaning of the statutory language. City of Houston , 192 S.W.3d at 770 . When a statute is

unambiguous, we apply the statute as written. Id.

Section 2001.171 of the APA provides a statutory right of judicial review from

administrative orders in contested-case proceedings, thereby waiving sovereign immunity as to

claims within its scope. Tex. Gov't Code Ann. § 2001.171 (West 2008); Texas Dep't of Protective

& Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W.3d 170, 173 (Tex. 2004). Section 2001.175

provides that in a substantial evidence review, a trial court "is confined to the agency record, except

that the court may receive evidence of procedural irregularities alleged to have occurred before the

agency that are not reflected in the record." Tex. Gov't Code Ann. § 2001.175 (e) (West 2008). It

is this provision on which the real parties in interest rely in seeking to conduct discovery related to

their allegations of procedural irregularities. However, although a trial court "may receive evidence"

related to alleged irregularities, section 2001.175(e) does not provide either a process for obtaining

such evidence or that discovery rules set out in the rules of civil procedure may be employed. See id.

In other words, the trial court may allow parties to introduce evidence outside the record that is

related to allegations of procedural irregularities, but section 2001.175 does not go further to

authorize the application of the rules of civil procedure to allow a party to develop or discover that

evidence. Allowing the application of discovery rules in suits for judicial review of administrative

cases could result in governmental agencies being inundated with time-consuming discovery

requests, despite the APA's general restrictions on the evidence that may be considered, when

complaining parties realize they need only allege procedural irregularities to initiate a new round of

discovery at the judicial review level despite the fact that discovery tools have already been available

to the parties at the administrative level. Such a result would thwart the APA's limitations on the

standard and scope of judicial review and would vastly expand the APA's otherwise restricted

waiver of governmental immunity.

Subchapter D of the APA, which applies to contested cases at the agency level,

specifies that parties to contested cases should employ discovery rules and rules of evidence set out

in the rules of civil procedure and rules of evidence. See id. §§ 2001.081 (rules of evidence apply

in contested cases), .083 ("In a contested case, a state agency shall give effect to the rules of privilege

recognized by law."), .091 (on party's motion and with notice, subject to "limitations of the kind

provided for discovery under the Texas Rules of Civil Procedure," agency may order production of

document or inspection of property) (West 2008); see also id. §§ 2001.092-.103 (West 2008)

(governing discovery of identity of witnesses or potential party, discovery of previous statement,

issuance of commission requiring witness deposition, when agency board member may be deposed,

place of deposition, deposition objections, preparation, submission, and use of deposition, and

payment of deponent's expenses). In contrast to those provisions, section 2001.175 does not refer

to the conducting of discovery, nor does subchapter G, which governs the judicial review of a final

decision in a contested case, provide that an aggrieved party may turn to the rules of civil procedure

to conduct discovery in a suit for judicial review of an agency proceeding. See id. § 2001.175;

see also id. §§ 2001.171-.178 (West 2008) (subchapter G). Considering the legislature's reference

to discovery rules in subchapter D and the omission of such reference in subchapter G, it is apparent

that the legislature knew how to make the rules of civil procedure applicable to suits for judicial

review and chose not to do so. See CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coalition

of Cities , 252 S.W.3d 1, 15 (Tex. App.--Austin 2008, pet. filed) ("We presume that every word was

deliberately chosen and that excluded words were left out on purpose.").

Strictly construing section 2001.175 and viewing it in context of the rest of the APA,

we hold that the trial court erred in denying relator's motion for a protective order and in allowing

the real parties in interest to use discovery rules in the judicial review of administrative proceedings.

We conditionally grant the Board's petition for writ of mandamus. Writ will issue only in the

unlikely event that the trial court does not act in accordance with this opinion.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton and Waldrop

Filed: August 14, 2009

1. The Board also filed a motion for temporary relief, which we granted in an order issued

May 27, 2009, staying the trial court's discovery order pending our resolution of the petition.