Opinion

Raghunath Dass, P.E. v. Texas Board of Professional Engineers

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: May 6, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

holding that minute orders made contract void

How later courts described this case

holding that minute orders made contract void
HHSC violated rule regarding review of individual claims data
conversely res judicata will not bar “claims that cannot be litigated through diligence”
holding that res judicata may be applied in the administrative context when an administrative agency is acting in a judicial capacity; res judicata bars subsequent litigation following the agency's decision

Written by the judges who cited it.

The opinion

ACCEPTED

03-14-00552-CV

5174167

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/6/2015 1:02:39 PM

JEFFREY D. KYLE

CLERK

No. 03-14-00552-CV

IN THE COURT OF APPEALS FILED IN

FOR THE THIRD DISTRICT 3rd COURT OF APPEALS

AUSTIN, TEXAS

AUSTIN, TEXAS 5/6/2015 1:02:39 PM

JEFFREY D. KYLE

RAGHUNATH DASS, P.E., Clerk

Appellant,

TEXAS BOARD OF PROFESSIONAL ENGINEERS,

Appellee.

On Appeal from the 201st Judicial District Court, Travis County, Texas;

Cause No. D-1-GN-14-000568, before the Honorable Stephen Yelenosky.

APPELLEE’S BRIEF

KEN PAXTON JENNIFER L. HOPGOOD

Attorney General of Texas State Bar No. 24073010

Assistant Attorney General

CHARLES E. ROY Administrative Law Division

First Assistant Attorney General Office of the Texas Attorney General

P.O. Box 12548, Capitol Station

JAMES E. DAVIS Austin, Texas 78711-2548

Deputy Attorney General for Telephone: (512) 475-4200

Civil Litigation Facsimile: (512) 320-0167

DAVID A. TALBOT, JR. Attorneys for Appellee,

Chief, Administrative Law Texas Board of

Division Professional Engineers

ORAL ARGUMENT NOT REQUESTED

May 6, 2015

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names and addresses

of all counsel.

Plaintiff/Appellant Appellate Counsel

Raghunath Dass, P.E. Jimmy Alan Hall, P.L.L.C.

4600 Mueller Boulevard, Suite 2121

Austin, TX 78723-3372

Facsimile: (512) 857-9195

jahall@fbjah.com

J. Woodfin Jones

Alexander Dubose Jefferson

& Townsend LLP

515 Congress Avenue, Suite 2350

Austin, Texas 78701-3562

Facsimile: (512) 482-9303

wjones@adjtlaw.com

Defendant/Appellee Appellee Counsel

Texas Board of Office of the Attorney General

Professional Engineers Jennifer L. Hopgood

Administrative Law Division

P.O. Box 12548

Austin, TX 78711-2548

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................................. ii

TABLE OF CONTENTS ............................................................................................................... iii

INDEX OF AUTHORITIES........................................................................................................... v

STATEMENT OF THE CASE...................................................................................................... xi

ISSUES CORRECTED ................................................................................................................ xii

STATEMENT REGARDING ORAL ARGUMENT................................................................... xii

APPELLEE’S BRIEF ..................................................................................................................... 1

STATEMENT OF FACTS CORRECTED .................................................................................... 2

SUMMARY OF THE ARGUMENT ........................................................................................... 16

STANDARD OF REVIEW .......................................................................................................... 16

ARGUMENT ................................................................................................................................ 18

I. The only issue before this Court is whether the district court properly granted the

Board’s motion for summary judgment, dismissing Mr. Dass’s lawsuit; however,

because Mr. Dass has failed to raise this issue in his Appellant’s Brief, he has

waived error..................................................................................................................... 18

A. Mr. Dass has waived error, and the Court should affirm the district court’s

granting of the Board’s motion for summary judgment. ............................................. 18

B. Even on the merits, the district court properly granted the Board’s motion for

summary judgment. ..................................................................................................... 19

1. Mr. Dass’s second motion for rehearing failed to preserve error. ........................... 20

2. When Mr. Dass dismissed his first appeal, the doctrines of res judicata and

collateral estoppel precluded Mr. Dass from relitigating those same claims. ......... 24

3. The Board's Amended Final Order complied with the Final Judgment in the

first suit. ................................................................................................................... 27

II. Mr. Dass fails to preserve error for his Issues Nos. 1-6 and his bill of exception

issue. ................................................................................................................................ 27

A. Mr. Dass also waived his Issues Nos. 1, 2, and 3 because he failed to raise these

issues in either his motion for rehearing or district court, and these three issues

do not implicate subject-matter jurisdiction. ............................................................... 29

1. Mr. Dass’s Issue No. 1 is waived because even if the Board’s issuance of the

Amended Final Order was erroneous, Mr. Dass failed to raise this issue in his

motion for rehearing. ............................................................................................... 32

2. Although Mr. Dass’s Issue No. 2 is waived, even on the merits Mr. Dass’s

argument would fail to show how the Board may not fix responsibility for

services performed in the practice of engineering. ................................................. 34

a. Broad definition of “practice of engineering.” ........................................................ 35

iii

b. CME and the reports. .............................................................................................. 36

3. Although Mr. Dass’s Issue No. 3 is waived, even on the merits the ALJ

correctly ruled that Mr. Dass failed to follow the legally required bidding

process for a public works project. .......................................................................... 38

B. Mr. Dass has waived his right to complain of the CME Advisory Opinion (Mr.

Dass’s fourth issue). .................................................................................................... 39

C. Mr. Dass has also waived his fifth and sixth issues because his complaint that

the substantial evidence standard was not met must have been brought in his

first appeal, which he withdrew. ................................................................................. 41

D. Because Mr. Dass failed to brief his issue regarding the exclusion of evidence and

has thus waived this point of error, the Court should not consider documents not

properly before the Court. ............................................................................................... 43

CONCLUSION AND PRAYER .................................................................................................. 44

CERTIFICATE OF COMPLIANCE ............................................................................................ 46

CERTIFICATE OF SERVICE ..................................................................................................... 46

INDEX OF AUTHORITIES

Cases

Amstadt v. U.S. Brass Corp.,

919 S.W.2d 644 (Tex. 1996)..................................................................................................... 25

Barr v. Resolution Trust Corp.,

837 S.W.2d 627 (Tex. 1992)..................................................................................................... 24

Burke v. Cent. Educ. Agency,

725 S.W.2d 393 (Tex. App.—Austin 1987, writ ref’d n.r.e.) ................................. 21, 22, 23, 39

Carpenter v. First Tex. Bancorp, No. 03-12-00004-CV,

2014 WL 2568494 (Tex. App.—Austin June 5, 2014, pet. filed) ............................................ 18

Carrizales v. Tex. Dep't Prot. & Reg. Servs.,

5 S.W.3d 922 (Tex. App.—Austin 1999, pet. denied).............................................................. 31

Centeq Realty Inc. v. Siegler,

899 S.W.2d 195 (Tex. 1995)..................................................................................................... 20

Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conservation Comm’n,

124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied).......................................................... 33

Citizens Ins. Co. of Am. v. Daccach,

217 S.W.3d 430 (Tex. 2007)..................................................................................................... 24

City of Celina v. Dynavest Joint Venture,

253 S.W.3d 399 (Tex. App.—Austin 2008, no pet.) ................................................................ 33

City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671 (Tex. 1979)..................................................................................................... 28

Concho Residential Servs., Inc. v. MHMR Servs. for the Concho Valley,

No. 03-98-00022-CV, 1999 WL 644727 (Tex. App.—Austin Aug. 26, 1999, pet. denied) .... 19

Crider v. Crider, No. 01-10-00268-CV,

2011 WL 2651794 (Tex. App.—Houston [1st Dist.] July 7, 2011, pet. denied) (mem. op.) ... 19

Dreyer v. Greene,

871 S.W.2d 697 (Tex. 1993)..................................................................................................... 31

El Paso Hosp. Dist. v. Tex. Health & Human Servs. Comm’n,

247 S.W.3d 709 (Tex. 2008)..................................................................................................... 41

Hamamcy v. Tex. State Bd. of Med. Exam’rs,

900 S.W.2d 423 (Tex. App.—Austin 1995, writ denied) ................................................... 21, 22

Hamilton v. Wilson,

249 S.W.3d 425 (Tex. 2008) (per curium)................................................................................ 17

Hill v. Bd. of Trs.,

40 S.W.3d 676 (Tex. App.—Austin 2001, no pet.) .................................................................. 22

Ingersoll-Rand Co. v. Valero Energy Corp.,

997 S.W.2d 203 (Tex. 1999)..................................................................................................... 24

John Gannon, Inc. v. Gunnarson Outdoor Adver., Inc., No. 03-08-00404-CV,

2010 WL 3192536 (Tex. App.—Austin Aug. 11, 2010, pet. denied) ...................................... 19

Krot v. Fid. Nat’l Title Co., No. 03-14-00250-CV,

2014 WL 7464084 (Tex. App.—Austin Dec. 31, 2014, no pet. hist.) (mem. op.) ................... 28

Lear Sieglar, Inc. v. Perez,

819 S.W.2d 470 (Tex. 1991)..................................................................................................... 17

Loftin v. Lee,

341 S.W.3d 352 (Tex. 2011)..................................................................................................... 31

Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572 (Tex. 2006)..................................................................................................... 43

Mansfield State Bank v. Cohn,

573 S.W.2d 181 (Tex. 1978)..................................................................................................... 28

Mapco, Inc. v. Carter,

817 S.W. 686 (Tex. 1991)......................................................................................................... 30

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Merchs. Fast Motor Lines, Inc.,

939 S.W.2d 139 (Tex. 1997)..................................................................................................... 24

Pub. Util. Comm’n v. Allcomm Long Distance, Inc.,

902 S.W.2d 662 (Tex. App.—Austin 1995, writ denied) ......................................................... 31

Pub. Util. Comm’n v. City Pub. Serv. Bd. of San Antonio,

109 S.W.3d 130 (Tex. App.—Austin 2003, no pet.) ................................................................ 30

Schanzle v. JPMC Specialty Mortg., No. 03-09-00639-CV,

2011 WL 832170, (Tex. App.—Austin Mar. 11, 2011, no pet.) (mem. op.) ............................ 28

Suburban Util. Corp. v. Pub. Util. Comm’n,

652 S.W.2d 358 (Tex. 1983)............................................................................................... 21, 24

SWEPI LP v. R.R. Comm’n,

314 S.W.3d 253 (Tex. App.—Austin 2010, pet. denied).......................................................... 30

Sysco Food Servs. Inc. v. Trapnell,

890 S.W.2d 796 (Tex. 1994)..................................................................................................... 25

Tex. Emp’t Comm’n v. Int’l Union of Elec., Radio & Mach. Workers, Local Union No. 782,

352 S.W.2d 252 (Tex. 1961)..................................................................................................... 30

Tex. Gen. Land Office v. Crystal Clear Water Supply Corp.,

449 S.W.3d 130 (Tex. App.—Austin 2014, pet. filed) ............................................................. 30

Tex. Highway Comm’n v. Tex. Ass’n of Steel Importers,

372 S.W.2d 525 (Tex. 1963)..................................................................................................... 33

Tex. State Bd. of Pharm. v. Witcher,

447 S.W.3d 520 (Tex. App.—Austin 2014, pet. filed) ............................................................. 41

United States v. Utah Constr. & Mining Co.,

384 U.S. 394, (1966) ................................................................................................................. 25

Williams v. Geeslin, No. 03-05-00450-CV,

2006 WL 2032570 (Tex. App.—Austin July 21, 2006, no pet.) (mem. op.) ............................ 23

Statutes

Tex. Gov’t Code § 2001.145......................................................................................................... 20

Tex. Gov’t Code § 2001.146......................................................................................................... 20

Tex. Gov’t Code § 2001.174............................................................................................. 30, 31, 41

Tex. Gov’t Code § 2001.174(2)(B)............................................................................................... 29

Tex. Gov't Code § 2001.1775 ..................................................................................... 29, 32, 33, 34

Tex. Gov’t Code § 2254.002(1)(B)........................................................................................... 6, 38

Tex. Gov’t Code § 2254.002(2)(A)(vii) ................................................................................... 6, 38

Tex. Gov’t Code § 2254.002(2)(B)(vii) .................................................................................... 6, 38

Tex. Gov’t Code § 2254.004(a)(1) ........................................................................................... 7, 39

Tex. Gov’t Code § 2254.004(a)(2) ........................................................................................... 7, 39

Tex. Occ. Code ch. 1001 ................................................................................................................. 3

Tex. Occ. Code § 1001.003 .......................................................................................................... 36

Tex. Occ. Code § 1001.003(b) .................................................................................................. 3, 35

vii

Tex. Occ. Code § 1001.003(c)(1) ............................................................................................. 4, 35

Tex. Occ. Code § 1001.003(c)(12) ........................................................................................... 4, 36

Tex. Occ. Code § 1001.004(a) ........................................................................................................ 4

Tex. Occ. Code § 1001.004(b)(1) ............................................................................................. 3, 35

Tex. Occ. Code § 1001.004(b)(3) ............................................................................................. 3, 35

Tex. Occ. Code § 1001.004(d) .................................................................................................. 4, 36

Tex. Occ. Code § 1001.021(a) ........................................................................................................ 5

Tex. Occ. Code § 1001.053 ............................................................................................................ 6

Tex. Occ. Code § 1001.202 ............................................................................................................ 4

Tex. Occ. Code § 1001.252(a) ........................................................................................................ 5

Tex. Occ. Code § 1001.252(f) ........................................................................................................ 5

Tex. Occ. Code § 1001.407(1) .................................................................................................. 6, 38

Tex. Occ. Code § 1001.451(2) ........................................................................................................ 5

Tex. Occ. Code § 1001.451(3) ........................................................................................................ 5

Tex. Occ. Code § 1001.451(4) ........................................................................................................ 5

Tex. Occ. Code § 1001.452(1) ........................................................................................................ 5

Tex. Occ. Code § 1001.454 ............................................................................................................ 5

Tex. Occ. Code § 1001.501 ............................................................................................................ 6

Tex. Occ. Code § 1001.502 ............................................................................................................ 6

Tex. Occ. Code § 1001.601(a) .................................................................................................. 7, 40

Tex. Occ. Code § 1001.601(b) ........................................................................................................ 7

Tex. Occ. Code § 1001.602(1) .................................................................................................. 8, 40

Tex. Occ. Code § 1001.602(2) .................................................................................................. 8, 40

Rules

Tex. R. App. P. 38(f)..................................................................................................................... 18

viii

Tex. R. App. P. 38(i) ..................................................................................................................... 18

Tex. R. App. P. 38.1(g) ................................................................................................................... 2

Tex. R. App. P. 38.2(a)(1)(B) ................................................................................................... xii, 2

Tex. R. Civ. P. 166a(c) ................................................................................................................. 27

Texas Administrative Code

22 Tex. Admin. Code § 131.101 ............................................................................................... 7, 40

22 Tex. Admin. Code § 131.103 ............................................................................................... 7, 40

22 Tex. Admin. Code § 131.105 ............................................................................................... 8, 40

22 Tex. Admin. Code § 131.109 ............................................................................................... 8, 40

22 Tex. Admin. Code § 137.33(b) .......................................................................................... 10, 11

22 Tex. Admin. Code § 137.33(f) ................................................................................................. 11

22 Tex. Admin. Code § 137.53(a) ............................................................................................ 6, 38

22 Tex. Admin. Code § 137.53(b) ............................................................................................ 6, 38

22 Tex. Admin. Code § 137.63(b)(2) ................................................................................. 6, 11, 39

22 Tex. Admin. Code § 139.11 ....................................................................................................... 5

22 Tex. Admin. Code § 139.17 ....................................................................................................... 5

22 Tex. Admin. Code § 139.31 ....................................................................................................... 5

22 Tex. Admin. Code § 139.35 ....................................................................................................... 5

22 Tex. Admin. Code § 139.47 ....................................................................................................... 5

22 Tex. Admin. Code § 139.49 ....................................................................................................... 5

Legislative Analysis

Bill Summ., Tex. S.B. 277, 78th Leg., R.S. (2003) ........................................................................ 7

Senate Comm. on Licensing & Admin. Procedures, Comm. Report (Unamended), Bill Analysis,

Tex. S.B. 277, 78th Leg., R.S. (2003)......................................................................................... 3

Senate Research Ctr., Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003) .................................. 3

Tex. S.B. 277, 78th Leg., R.S. (2003)............................................................................................. 7

Other Authorities

Black’s Law Dictionary 870 (8th ed. 2004).................................................................................. 30

STATEMENT OF THE CASE

Nature of the case: This is an appeal from a final judgment by the Travis

County District Court granting the Texas Board of

Professional Engineer’s (“Board”) motion for summary

judgment and dismissing Raghunath Dass, P.E.’s (“Mr.

Dass”) suit for judicial review. Order Granting Def.’s

Mot. for Summ. J., C.R. at 465, copy attached at

Appendix 1.

Trial Court: 201st Judicial District Court of Travis County, in Cause

No. D-1-GN-14-000568, The Honorable Stephen

Yelenosky, Presiding.

Trial Court Proceeding: Appellant Mr. Dass filed his suit in district court, C.R. at

4-20, seeking judicial review of the Board’s Amended

Final Order. Id.1 The Board filed a motion for summary

judgment, seeking to dispose of all claims. C.R. at 334-

406. After considering the pleadings of the parties, the

district court granted the Board’s summary judgment

motion and dismissed Mr. Dass’s lawsuit. C.R. at 465.

Trial Court Disposition: The district court rendered a final order granting the

Board’s motion for summary judgment and dismissing

Mr. Dass’s lawsuit. See Order Granting Def.’s Mot. for

Summ. J., C.R. at 465. Mr. Dass appeals this final order.

Notice of Appeal, C.R. at 472.

Mr. Dass previously filed a suit for judicial review, seeking review of the Board’s

original Final Order, in Dass v. Tex. Bd. of Prof’l Eng’rs, Cause No. D-1-GN-12-003397 (419th

Dist. Ct., Travis County, Tex.). Mr. Dass appealed the Final Judgment in that suit but then

dismissed his appeal. See Appellant’s Mot. to Withdraw Appeal, C.R. at 370-71.

ISSUES CORRECTED 2

I. Whether the trial court properly granted the Board’s motion for

summary judgment, dismissing Mr. Dass’s suit.

II. Whether Mr. Dass fails to preserve error for both his Issues Nos. 1-6

and his bill of exception.

STATEMENT REGARDING ORAL ARGUMENT

Although the Board does not believe any issues on the merits are before the

Court and oral argument is not needed, if the Court grants oral argument the

Board’s counsel respectfully asks to participate in the oral argument.

See Tex. R. App. P. 38.2(a)(1)(B).

xii

No. 03-14-00552-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT

AUSTIN, TEXAS

RAGHUNATH DASS, P.E.,

Appellant,

TEXAS BOARD OF PROFESSIONAL ENGINEERS,

Appellee.

On Appeal from the 201st Judicial District Court, Travis County, Texas;

Cause No. D-1-GN-14-000568, before the Honorable Stephen Yelenosky.

APPELLEE’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

The trial court properly granted the Board’s motion for summary judgment,

dismissing Mr. Dass’s suit. Because Mr. Dass fails to brief this issue in his

Appellant’s Brief (“Dass Brief”), he has waived any complaint about the district

court’s granting of the Board’s summary judgment motion. Thus, the district

court’s granting of the Board’s motion, dismissing Mr. Dass’s suit, should be

affirmed by the Court.

None of Mr. Dass’s other issues (his Issues Nos. 1-6) are properly before

this Court because Mr. Dass failed to raise the issues in his response to the Board’s

summary judgment motion or, alternatively, either in his trial court brief or his

motion for rehearing. And because Mr. Dass also fails to brief his bill of exception,

and because there is no fundamental error in the district court excluding the

documents referenced in Mr. Dass’s bill of exception, the district court’s ruling, to

exclude the administrative record (“A.R.”) from the first suit for judicial review,

should be affirmed.

STATEMENT OF FACTS CORRECTED

Mr. Dass’s statement of facts contains reference to documents not properly

before the Court and contains argument and incorrect assertions not supported by

the record. 3 Therefore, the Board submits this corrected Statement of Facts. See

Tex. R. App. P. 38.2(a)(1)(B); Tex. R. App. P. 38.1(g).

The Parties.

Appellee the Texas Board of Professional Engineers (“Board”) “was

established to license professional engineers, enforce the Texas Engineering

Because the “facts” in paragraphs 4, 7, 9, and 11 in Dass’s Brief are not properly before

the Court, the Court would first have to review the district court’s ruling in which the court

excluded certain documents, including the administrative record from the first appeal; however,

Mr. Dass has failed to brief this issue. See infra at section II.D for discussion on Mr. Dass’s

failure to brief his bill of exception in his appellant brief. Thus, any of Mr. Dass’s references in

his brief to “A.R.” and any assertions relying on “A.R.” are not properly before the Court. See

also Dass Brief at p. 1 n. 1 (explaining that his references to “A.R.” refer to the administrative

record in the first suit for judicial review).

The Board intends to file a separate motion to strike Mr. Dass’s Exhibits 6 and 7,

attached to his appellant’s brief, because these documents are not properly before the Court.

Also, the argument and incorrect assertions contained in these paragraphs would be

improper even if the additional documents had been admitted and were properly before the

Court.

Practice Act [Tex. Occ. Code ch. 1001], [and] resolve complaints.” Senate

Research Ctr., Bill Analysis, Tex. S.B. 277, 78th Leg., R.S. (2003). Copy attached

as Appendix 2.

Appellant Raghunath Dass, P.E., is a licensed professional engineer who

holds a professional license issued by the Board. Am. Final Order, Finding of Fact

(“FoF”) 1, C.R. at 224. He was the sole licensed professional engineer employed

by Trinity Soils Investigation Laboratories, Inc. (“Trinity Soils Lab”). Id.

The Legislature has tasked the Board to protect the public health, safety

and welfare of the citizens of Texas.

“The [Board] was created in 1937, after an explosion at the New London

School killed nearly 300 students and teachers.” Senate Comm. on Licensing &

Admin. Procedures, Comm. Report (Unamended), Bill Analysis, Tex. S.B. 277,

78th Leg., R.S. (2003), copy attached at Appendix 3. The purpose of the Texas

Engineering Practice Act is to “protect the public health, safety, and welfare” and

“fix responsibility for work done or services or acts performed in the practice of

engineering.” Tex. Occ. Code Ann. §§ 1001.004(b)(1), (3) (West 2012).

The term “practice of engineering” is broad. See Tex. Occ. Code

§ 1001.003(b) (“‘practice of engineering’ means the performance of or an offer or

attempt to perform any public or private service or creative work, the adequate

performance of which requires engineering education, training, and experience in

applying special knowledge or judgment of the mathematical, physical, or

engineering sciences to that service or creative work.”). The practice of

engineering also “includes . . . consultation, investigation, evaluation, analysis,

planning, . . . engineering for testing or evaluating materials for construction or

other engineering use”). Tex. Occ. Code § 1001.003(c)(1). The list of activities that

the Legislature considers engineering services includes a catchall provision: the

practice of engineering “includes . . . any other professional service necessary for

the planning, progress, or completion of an engineering service.” Tex. Occ. Code

§ 1001.003(c)(12).

To assist the Board in meeting these serious responsibilities, the Legislature

has delegated to the Board the authority to “adopt and enforce any rule or bylaw

necessary to perform its duties, govern its proceedings, and regulate the practice of

engineering.” Tex. Occ. Code § 1001.202. The Legislature also “recognizes the

vital impact that the rapid advance of knowledge of the mathematical, physical,

and engineering sciences as applied in the practice of engineering has on the lives,

property, economy, and security of state residents and the national defense.” Tex.

Occ. Code § 1001.004(a).

Also, the Act “shall be liberally construed to carry out the intent of the

legislature.” Tex. Occ. Code § 1001.004(d).

The Board investigates complaints, enforces the Act, and may assess

sanctions and penalties for any violations.

The Board “shall administer and enforce” the Texas Engineering Practice

Act (“Act”). Tex. Occ. Code § 1001.021(a); see also 22 Tex. Admin. Code

§ 139.31 (2015) (Tex. Bd. of Prof’l Eng’rs, Enforcement Actions for Violations of

the Act). The Board must receive and investigate complaints against licensed

engineers. Tex. Occ. Code § 1001.252(a); 22 Tex. Admin. Code § 139.11

(Complaints—General). After receiving a complaint, the Board “shall determine

whether the board has the authority to resolve the complaint.” Tex. Occ. Code

§ 1001.252(f); see also 22 Tex. Admin. Code § 139.17 (Investigating a

Complaint).

After the Board determines that a licensed engineer has violated the Act or a

board rule, the engineer is subject to disciplinary action by the Board. Tex. Occ.

Code § 1001.452(1). The Board may suspend an engineer’s license, probate the

suspension of the license, or formally reprimand a license holder. Tex. Occ. Code

§§ 1001.451(2), (3), (4). See also 22 Tex. Admin. Code §§ 139.35 (Sanctions &

Penalties), .47 (Probation), .49 (License Suspension/Revocation Based on License

Holder’s Status Review). If the Board recommends suspension of an engineer’s

license, that person is entitled to a hearing. Tex. Occ. Code § 1001.454. The Board

may also impose administrative penalties against an engineer who has violated the

Act or Board rules. Tex. Occ. Code §§ 1001.501, .502.

Public works projects have special requirements.

The Act prohibits a political subdivision of the state from “construct[ing] a

public work involving engineering in which the public health, welfare, or safety is

involved, unless . . . the engineering plans, specifications, and estimates have been

prepared by an engineer.” Tex. Occ. Code § 1001.407(1). 4 Additionally, a licensed

engineer may not “submit or request” a “competitive bid to perform professional

engineering service” unless specifically authorized. 22 Tex. Admin. Code

§ 137.53(a) (Engineer Standards of Compliance with Professional Services

Procurement Act). Competitive bidding includes “submission of any monetary cost

information in the initial step of selecting engineers.” Id. at (b). A professional

engineer is responsible for ensuring that his associates do not violate the Act. 22

Tex. Admin. Code § 137.63(b)(2) (Engineers' Responsibility to the Profession)

The Professional Services Procurement Act (“PSPA”) is found at Texas

Government Code chapter 2254. The PSPA applies to counties and professional

engineering services provided by a professional engineer. Tex. Gov’t Code Ann.

§§ 2254.002(1)(B), (2)(A)(vii), (2)(B)(vii) (West 2008). A county may only select

There are exemptions to this public works provision, but none of the exemptions applied

in the project in which Mr. Dass was involved. See Tex. Occ. Code § 1001.053 (listing

exemptions from the public works requirements).

a provider based on qualifications and then must attempt to negotiate a contract

with that provider at a “fair and reasonable price.” Tex. Gov’t Code

§§ 2254.004(a)(1), (2).

The Board shall prepare and publish advisory opinions.

In 2003, the Legislature required the Board to issue advisory opinions. Bill

Summ., Tex. S.B. 277, 78th Leg., R.S. (2003) (“The bill requires the board, on its

own initiative or at the request of any interested person, to prepare and maintain

advisory opinions about the interpretation or application of the Texas Engineering

Practice Act and to make that information available on the board’s Internet

website.”), copy attached as Appendix 4. Senate Bill 277 created subchapter M,

entitled “Advisory Opinions” and added four related sections. See excerpt of Tex.

S.B. 277, 78th Leg., R.S. (2003), at pp. 34-35 (showing the addition of subchapter

M), attached as Appendix 5.

The Legislature tasked the Board with the following duty: “On its own

initiative or at the request of any interested person, the board shall prepare a

written advisory opinion about (1) an interpretation of this chapter; or (2) the

application of this chapter to a person in regard to a specified existing or

hypothetical factual situation.” Tex. Occ. Code § 1001.601(a). See also id. at (b)

(requiring the Board to issue advisory opinions upon request); 22 Tex. Admin.

Code §§ 131.101 (Subject of an Advisory Opinion), .103 (Request for an Advisory

Opinion), .105 (Board Initiated Opinion) (“When a majority of the board

determines that an opinion would be in the public interest or in the interest of any

person or persons within the jurisdiction of the board, the board may on its own

motion issue an advisory opinion.”).

The Board also must “number and classify each advisory opinion” and

“annually compile a summary of the opinions in a single reference document that

is available on the Internet.” Tex. Occ. Code § 1001.602(1), (2); see also 22 Tex.

Admin. Code § 131.109 (Compilation of Advisory Opinions).

The Board investigated a complaint against Mr. Dass and then brought

a contested case against him for violations of the Act.

In 2009 Mr. Dass’s employer, Trinity Soils Lab, submitted a proposal “to

perform construction material testing” for a public works project for San Patricio

County (“County”), specifically regarding the construction of a horse barn

(“Project”) at the County’s fairgrounds. FoF nos. 5, 6, C.R. at 225. The County

hired Trinity Soils Lab to perform the testing. Trinity Soils Lab submitted sixteen

construction materials testing reports to the County, but all of the reports lacked a

signature or seal of a licensed professional engineer. FoF nos. 7, 8, C.R. at 225.

Mr. Dass “did not perform or directly supervise” any of the testing reflected in the

sixteen construction materials testing reports Trinity Soils Lab submitted to the

engineering firm of record during the period of February 17, 2009 to April 7, 2009.

FoF no. 9, C.R. at 225. Nor, prior to April 17, 2009, did Mr. Dass have any

knowledge of either the County’s Project or the sixteen reports submitted to the

County. FoF no. 10, C.R. at 225.5

Mr. Dass, however, on April 20, 2009, after the reports had already been

submitted to the County without his review or analysis, “added his undated

signature and seal to copies” of the sixteen reports and “resubmitted” the reports to

the County. See FoF no. 11, C.R. at 225. Subsequently, the County terminated its

contract with Trinity Soils Lab. Proposal for Decision (“PFD”) at p. 2, C.R. at 344.

The engineer subsequently hired by the County to complete the testing work filed a

complaint with the Board against Mr. Dass. Id.

After notice and hearing, a contested case hearing was held at the State

Office of Administrative Hearings (“SOAH”). Mr. Dass represented himself pro

se. PFD, C.R. at 343. The Board presented evidence regarding the bidding process

and the manner in which both the testing and the submitting of the reports was

done. Regarding the bidding, the Board’s Director of Compliance and

Enforcement, C.W. Clark, testified that a professional engineer “must use

reasonable care and diligent effort to ensure that persons or firms associated with

The engineering firm of record for the Project subcontracted with Trinity Soils Lab for

the construction materials testing. C.R. at 349. The senior engineer of the engineering firm of

record, Lewis Shrier, testified at the contested case hearing that he became concerned that the

submitted reports needed to have an engineering seal and shared this concern with the non-

engineer at Trinity Soils Lab who had created the sixteen reports. C.R. at 349.

the engineer do not engage in conduct which, if done by the engineer, would

violate the [Act] or any Board rule, including the PSPA.” C.R. at 348. Mr. Clark

also testified that “by not demonstrating reasonable care or diligence to prevent his

employer from submitting a competitive bid for the public works project, Mr. Dass

committed a violation.” C.R. at 348.

Mr. Clark further testified that “when engineering work is released, it must

either be signed, sealed, and dated, or be marked as preliminary.” C.R. at 348.

Here, Mr. Dass failed to sign and seal the reports before the reports were submitted

to the engineering firm of record, and this failure to sign and seal was a violation of

Board rule 137.33(b). And lastly, Mr. Clark testified “anytime a professional

engineer creates or signs a document reflecting engineering work, the licensed

engineer must affix his seal before the document is released from [his] control.”

C.R. at 348. Thus, “a licensed engineer is not allowed to release engineering work

without it being signed and sealed and then later, go back and add his signature and

seal to the document.” C.R. at 348.

The SOAH Administrative Law Judge (“ALJ”) then issued the PFD. C.R. at

343-59, dated June 13, 2012. The ALJ found that Mr. Dass committed the

following violations:

• Conclusion of Law No. 5: Mr. Dass violated 22 Tex. Admin. Code

§ 137.33(b) (Sealing Procedures) “when he failed to supervise the

performance of the CMT testing.”6 This conclusion was supported by

FoF No. 14 (Mr. Dass “failed to exercise reasonable care and

diligence to prevent [Trinity Soils Lab] from performing construction

material testing for the Project without having the tests performed or

directly supervised by a licensed professional engineer.”).

• Conclusion of Law No. 6: Mr. Dass violated 22 Tex. Admin. Code

§ 137.33(f) (Sealing Procedures) “when he allowed [Trinity Soils

Lab] to release the CMT reports without having signed, dated, and

sealed the CMT reports before they were released.”7 This conclusion

was supported by FoF No. 15 (Mr. Dass “failed to exercise reasonable

care and diligence to prevent [Trinity Soils Lab] from submitting

[construction material testing] reports for the Project without the

signature and seal of a licensed professional engineer.”).

• Conclusion of Law No. 7: Mr. Dass violated 22 Tex. Admin. Code

§ 137.63(b)(2) (Engineers' Responsibility to the Profession) “when he

failed to exercise reasonable care and diligence to prevent TSI from

submitting a competitive bid for professional engineering services in

violation of the PSPA.” 8 This conclusion was supported by FoF No.

13 (Mr. Dass “failed to exercise reasonable care and diligence to

prevent [Trinity Soils Lab] from submitting a proposal for

construction material testing for the Project which included a price

bid.”).

“License holders shall only seal work done by them, performed under their direct

supervision as defined in § 131.81 of this title, relating to Definitions, or shall be standards or

general guideline specifications that they have reviewed and selected. Upon sealing, engineers

take full professional responsibility for that work.” 22 Tex. Admin. Code § 137.33(b).

“License holders shall affix their seal and original signature or electronic seal and

signature with the date on the final version of their engineering work before such work is

released from their control.” 22 Tex. Admin. Code § 137.33(f).

The engineer shall . . . exercise reasonable care or diligence to prevent the engineer's partners,

associates, and employees from engaging in conduct which, if done by the engineer, would

violate any provision of the Texas Engineering Practice Act, general board rule, or any of the

professional practice requirements of federal, state and local statutes, codes, regulations, rules or

ordinances in the performance of engineering services. 22 Tex. Admin. Code § 137.63(b)(2).

PFD, C.R. at 357-59. The ALJ recommended the following sanctions and penalty:

fully probated suspension of Mr. Dass’s engineering license for two years, a formal

reprimand, and an administrative penalty of $4,000.00.

The Board adopted the PFD in its entirety. See Final Order, dated Aug. 16,

2012, a copy is attached at Appendix 6.

First suit for judicial review.

Mr. Dass filed a suit for judicial review in Travis County District Court,

seeking review of the Board’s Final Order. Dass v. Tex. Bd. of Prof’l Eng’rs, No.

D-1-GN-12-003397 (419th Dist. Ct., Travis County, Tex.), The Honorable Gisela

Triana presiding. Mr. Dass appeared pro se during the briefing and hearing on the

merits. See, e.g., cover letter for Initial Brief, with Mr. Dass acting pro se, copy

attached at Appendix 7. The court issued the Final Judgment, ruling that “Findings

of Fact No. 16 and 17 and Conclusion of Law No. 8 in the Board’s Final Order

[we]re not supported by substantial evidence.” Final J., dated Sept. 27, 2013, C.R.

at 365. The court also ruled that the “remaining findings of facts and conclusions

of law in the Board’s Final Order [we]re supported by substantial evidence.” The

court noted, “In light of the Court’s decision to strike limited portions of the Final

Order, the Court remands this matter to the Board for any further action it deems

appropriate given the ruling.” The Final Judgment “dispose[d] of all claims and all

parties” and was “final and appealable.” C.R. at 365.

Appeal of Final Judgment and Amended Final Order.

After the district court issued its Final Judgment, Mr. Dass filed an appeal of

the Final Judgment. Notice of Appeal, dated Oct. 23, 2013, copy attached at

Appendix 8.

The Board subsequently adopted the Amended Final Order. Am. Final

Order, dated Nov. 21, 2013, C.R. at 223-27. The Amended Final Order conformed

the Final Order to the district court’s Final Judgment by dropping the two findings

of fact and one conclusion of law that the court ruled were not supported by

substantial evidence. And while the district court found substantial evidence to

support the administrative penalty from the Final Order, in the Amended Final

Order the Board reduced the administrative penalty to be assessed against Mr.

Dass. See Am. Final Order, C.R. at 227 (reducing the penalty from $4,000 to

$1,500.00).

On December 3, 2013, again acting pro se, Mr. Dass filed his Motion to

Withdraw Appeal, seeking to dismiss his appeal to the Third Court of Appeals,

stating that he “believe[d]” his appeal “ha[d] become moot due to the Amended

Final Order from Appellee.” C.R. at 370-78. This Court issued an order dismissing

Mr. Dass’s appeal. C.R. at 379.

On December 10, 2013, Dass filed his Motion for Rehearing. C.R. at 380-

406. His motion was overruled by operation of law.

On December 18, 2013, this Court dismissed Mr. Dass’s appeal. C.R. at 379.

Second Suit for Judicial Review.

On February 27, 2014, Mr. Dass filed a second suit for judicial review,

seeking review of the Board’s Amended Final Order. Dass v. Tex. Bd. of Prof’l

Eng’rs, No. D-1-GN-14-000568 (201st Dist. Ct., Travis County, Tex.), The

Honorable Stephen Yelenosky presiding. The Board then filed a motion for

summary judgment on May 29, 2014. C.R. at 334-406. The court granted the

Board’s summary judgment motion. Order Granting Def.’s Mot. for Summ. J.,

C.R. at 465, copy attached at App. 1. The Order disposed of all other claims and

was final and appealable. Id. Dass subsequently filed the instant direct appeal of

the District Court’s order. See Notice of Appeal (“appeal[ing] from the Order

Granting Defendant’s Motion for Summary Judgment), C.R. at 472.

Bill of Exception.

The administrative record for the suit for judicial review underlying the

instant case contains only the following four documents: (1) Board's Amended

Final Order; (2) Respondent's Motion for Rehearing; (3) Staff Memorandum to

Board Members on Motion for Rehearing; and (4) Notice to Respondent

Overruling Motion for Rehearing.

Mr. Dass filed a motion seeking to have the Board file with the district court

the transcript from the contested case hearing underlying the first suit for judicial

review. See Mot. for Def. to File SOAH Tr. with Dist. Clerk, dated Apr. 21, 2014,

C.R. at 59-61. The Board opposed this motion. C.R. at 99-202. Then, on April 22,

2014, Mr. Dass filed an assortment of documents including offers made by Board

staff to settle the case that was the subject of his first suit for judicial review. 9

None of these documents were part of the administrative record, and the district

court properly granted the Board’s motion to strike these documents.

The district court denied both Mr. Dass’s motion to supplement the record

with the SOAH transcript and PFD and his supplemental motion seeking the same

supplementation. C.R. at 316, 318. The court also granted the Board’s Amended

Motion to Strike. C.R. at 317.

Mr. Dass then filed a bill of exception, seeking to have this Court determine

whether the administrative record in the first suit could be considered by the Court.

Supp. C.R. II at 12-13.

The District Clerk sua sponte included these documents in the Clerk’s Record. The

documents are labelled C.R. 62-84. Because these documents are not properly before the Court,

the Board respectfully requests that the Court disregard these documents.

SUMMARY OF THE ARGUMENT

Mr. Dass failed to raise as an issue in the instant appeal whether the district

court properly granted the Board’s summary judgment motion, dismissing Mr.

Dass’s suit. Mr. Dass has, therefore, waived this point of error, and the Court

should affirm the district court’s order dismissing Mr. Dass’s suit. But even on the

merits, the trial court properly granted the Board’s motion for summary judgment.

No other issue is properly before this Court. Mr. Dass’s Issues Nos. 1-6 were

not raised in his response to the Board’s motion for summary judgment and are

waived. Moreover, Mr. Dass failed to raise his purported Issue Nos. 1, 2, and 3 in

the district court, and these issues are thus further waived. As for his Issue No. 4,

while Mr. Dass claims to have raised issue 4 in his motion for rehearing, if he did

raise this issue, he failed to provide a legal basis for doing so and thus waived the

issue on appeal. Also, his Issues Nos. 5 and 6, in which he claims lack of

substantial evidence to support findings of fact and conclusions of law, were

already ruled on by the district court in the first suit for judicial review, and by

dismissing his first appeal Mr. Dass is thus precluded from raising these issues in

the instant appeal. And he failed to raise as an issue the exclusion of evidence.

STANDARD OF REVIEW

A district court properly grants a traditional motion for summary judgment

when a movant establishes that there are “no genuine issue[s] of material fact” and

that the movant is entitled to judgment as a matter of law. Lear Sieglar, Inc. v.

Perez, 819 S.W.2d 470, 471 (Tex. 1991)). Summary judgment in response to a

“no-evidence” motion is proper when the nonmovant fails to produce evidence

“raising a genuine issue of material fact.” Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008) (per curium).

ARGUMENT

I. The only issue before this Court is whether the district court properly

granted the Board’s motion for summary judgment, dismissing Mr.

Dass’s lawsuit; however, because Mr. Dass has failed to raise this issue

in his Appellant’s Brief, he has waived error.

A. Mr. Dass has waived error, and the Court should affirm the

district court’s granting of the Board’s motion for summary

judgment.

When a party’s brief “wholly fail[s] to raise any issues, arguments, or

citations to the record with respect to the trial court’s summary judgment in favor

of [the appellee], he has waived error as to the judgment in favor of that

defendant.” Carpenter v. First Tex. Bancorp, No. 03-12-00004-CV, 2014 WL

2568494, at *1 (Tex. App.—Austin June 5, 2014, pet. filed) (holding that appeal of

granting of summary judgment waived where nonmovant-appellant failed to raise

on appeal issue of summary judgment regarding one of two defendants) (citing

Tex. R. App. P. 38(f), (i)).

The appeal before this Court concerns only the district court’s summary

judgment. Order Granting Def.’s Mot. for Summ. J. (having considered Board’s

motion and Mr. Dass’s response), C.R. at 465. The court rendered judgment,

granting the motion in all respects and denying all other relief, and the judgment

was final and appealable. Id. Mr. Dass filed appeal of the summary judgment.

Notice of Appeal, C.R. at 471. In his brief on appeal, however, Mr. Dass has failed

to assert that the district court erred by granting the Board’s motion for summary

judgment, and he has thus waived error. The Court should, therefore, affirm the

district court’s order granting summary judgment.

Even when a party does raise on appeal the granting of summary judgment,

the appellant must provide adequate briefing. See, e.g., Concho Residential Servs.,

Inc. v. MHMR Servs. for the Concho Valley, No. 03-98-00022-CV, 1999 WL

644727, at *19-20 (Tex. App.—Austin Aug. 26, 1999, pet. denied) (affirming

district court’s granting of summary judgment when appellant-nonmovant failed to

address grounds asserted for summary judgment by appellee-movant); Crider v.

Crider, No. 01-10-00268-CV, 2011 WL 2651794, at *[4] (Tex. App.—Houston

[1st Dist.] July 7, 2011, pet. denied) (mem. op.) (“A party who fails to support his

or her contentions with authority or citations to the record when appropriate waives

the issue due to inadequate briefing.”). Here, Mr. Dass fails to challenge any of the

possible bases for the district court’s granting of the summary judgment, and, so,

he has waived error.

B. Even on the merits, the district court properly granted the

Board’s motion for summary judgment.

The reviewing court will “take as true evidence favorable to the nonmovant,

making every reasonable inference and resolving all doubts in the nonmovant’s

favor.” John Gannon, Inc. v. Gunnarson Outdoor Adver., Inc., No. 03-08-00404-

CV, 2010 WL 3192536, at *2 (Tex. App.—Austin Aug. 11, 2010, pet. denied)

(citing Centeq Realty Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). Because

the court did not specify the exact ground for granting the Board’s summary

judgment, Mr. Dass has the burden to “negate all grounds on appeal.” Id. (noting

that “if summary judgment may have been granted, properly or improperly, on a

ground that an appellant does not challenge, we must affirm it”). Here, the Board

raised three possible reasons the court should grant summary judgment: (1) failure

to preserve error by filing an inadequate motion for rehearing; (2) res judicata or

collateral estoppel; or (3) that the Board’s Amended Final Order conformed to the

Final Order in the first suit for judicial review.

1. Mr. Dass’s second motion for rehearing failed to preserve

error.

The Board issued an Amended Final Order, and Mr. Dass timely filed a

motion for rehearing, which was overruled by operation of law. See Am. Final

Order, C.R. at 223-27; Mot. for Reh’g, C.R. at 380-406. Mr. Dass then filed his

second suit for judicial review asking the district court to review the Board's

Amended Final Order.

Under the Administrative Procedure Act, as a prerequisite to judicial review,

a litigant must file a motion for rehearing with the agency. Tex. Gov’t Code

§§ 2001.145, .146. The rationale behind this requirement is to give the agency an

opportunity to correct or defend any errors claimed by the litigant. Suburban Util.

Corp. v. Pub. Util. Comm’n, 652 S.W.2d 358, 365 (Tex. 1983). But a motion for

rehearing is not a mere legal formality prior to judicial review. Because the motion

is designed to give the agency notice, it must carry certain substance. Specifically,

the motion must identify the erroneous action taken by the agency, and analyze the

legal basis for the claim of error. Hamamcy v. Tex. State Bd. of Med. Exam’rs, 900

S.W.2d 423, 425 (Tex. App.—Austin 1995, writ denied).

A motion for hearing must “set forth succinctly at least two elements

pertaining to each contention of error: (1) the particular finding of fact, conclusion

of law, ruling, or other action by the agency that the complaining party asserts was

error; and (2) the legal basis upon which the claim of error rests.” Burke v. Cent.

Educ. Agency, 725 S.W.2d 393, 397 (Tex. App.—Austin 1987, writ ref’d n.r.e.)

(“Without these irreducible elements, we do not conceive that any assignment of

error will apprise the agency of the error claimed so that it may correct the error or

prepare against the contention that it is error.”).

Mr. Dass’s motion for rehearing, however, failed to satisfy either element.

See Mot. for Reh’g, C.R. at 380-406. For example, the first three pages consisted

only of a recitation of facts and his interpretation of those facts; Mr. Dass also

failed to state any legal or statutory basis for his general assertion that the Board

came to the wrong conclusion. Id. His points of error did not refer to any

conclusions of law or legal principles and were so broad that they provided no

notice to the Board to allow it to correct or defend against the contention of error.

Moreover, the motion failed to provide any legal basis on which the unspecified

errors rested. See Burke, 725 S.W.2d at 397; see also Hamamcy, 900 S.W.2d at

425 (holding that “a motion for rehearing can be so indefinite, vague, and general

so as to constitute no motion for rehearing at all”); Hill v. Bd. of Trs., 40 S.W.3d

676, 678 (Tex. App.—Austin 2001, no pet.) (adequacy of motion for rehearing

goes to question of whether plaintiff had preserved error).

Such was Mr. Dass’s “motion.” In his seven points of error, he only cited to

one finding of fact, no. 17, and only quoted it, never stating why it might support

his motion or amount to an error by the Board. (Point 2) He complained that the

Board members interrupted him (Point 7); he asserted he was not responsible

(Point 6) and that Board members ignored his “strong exceptions” (Point 4); and,

he made some general complaints about Board policy (Point 1), Board

interpretation of engineering concepts (Point 3), and made a general complaint that

the Board failed to understand why his seal was on the reports (Point 5).

His motion was nothing more than a general attack, among other matters, on

the Board's 2005 Policy Advisory Opinion on Construction Materials Testing

(“CME Advisory Opinion”), copy attached at Appendix 9. Rather than stating the

specific errors in the Board's Amended Final Order and explaining the legal basis

for the alleged errors, as required in a motion for rehearing, Mr. Dass focused

much of his motion for rehearing on identifying alleged deficiencies in the CME

Advisory Opinion. See C.R. at 380-406. The Findings of Fact and Conclusions of

Law in the Board's Amended Final Order did not rely on or address this 2005

Advisory Opinion. See C.R. at 223-27. Moreover, Mr. Dass had previously raised

this issue at the contested case hearing, and the ALJ dismissed this argument as

erroneous. See PFD at page 12, C.R. at 343-59.10

Mr. Dass’s points of error alleging bias and unfairness by the Board

members were entirely baseless. At all stages of the proceeding, Mr. Dass was

afforded due process and opportunities to address the Board when appropriate. Mr.

Dass’s claim that the Board acted in a biased and unfair manner, simply because it

disagreed with Mr. Dass' arguments, lacked a valid legal basis for a rehearing.

Not only did Mr. Dass’s motion fail to provide notice to the Board, it failed

as a substantive motion altogether. The motion for rehearing elements “may not be

supplied solely in the form of generalities.” Burke, 725 S.W.2d at 397. See also

Williams v. Geeslin, No. 03-05-00450-CV, 2006 WL 2032570 (Tex. App.—Austin

July 21, 2006, no pet.) (mem. op.) (holding that trial court properly granted

summary judgment for agency in suit for judicial review because motion for

rehearing was insufficient to preserve any error).

“Based on the plain reading of the CME Advisory Opinion, the ALJ finds it sufficiently

informative to put a professional engineer on notice that material testing for a public works

project requires the involvement of a licensed engineer and compliance with the [Professional

Services Procurement Act] and corresponding Board rules.”

Mr. Dass had a statutory obligation to apprise the Board of the alleged errors

of which he intended to complain in his suit for judicial review and the legal basis

for his challenge. Because he failed to provide the Board with the opportunity to

correct or defend any error, he failed to preserve error through his purported

motion for rehearing. See Suburban, 652 S.W.2d at 365. He did not establish the

statutory prerequisites to go forward with his lawsuit; the district court correctly

granted summary judgment because Mr. Dass had no viable cause of action. See

Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Merchs. Fast Motor Lines, Inc., 939

S.W.2d 139, 141 (Tex. 1997).

2. When Mr. Dass dismissed his first appeal, the doctrines of

res judicata and collateral estoppel precluded Mr. Dass

from relitigating those same claims.

“Res judicata generally bars claims or defenses that, through diligence,

could have been litigated in the earlier suit but were not.” Ingersoll-Rand Co. v.

Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999); see also Citizens Ins. Co.

of Am. v. Daccach, 217 S.W.3d 430, 448 (Tex. 2007) (conversely res judicata will

not bar “claims that cannot be litigated through diligence”). The doctrines of res

judicata and collateral estoppel maintain the integrity of court decisions, prevent

vexatious litigation, and maximize judicial economy. Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 629 (Tex. 1992).

Res judicata requires: (1) “a prior final judgment on the merits by a court of

competent jurisdiction”; (2) “identity of parties or those in privity with them”; and

(3) “a second action based on the same claims as were raised or could have been

raised in the first action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.

1996). To invoke collateral estoppel, a party must establish (1) “the facts sought to

be litigated in the second action were fully and fairly litigated in the first action”;

(2) “those facts were essential to the judgment in the first action”; and (3) “the

parties were adversaries in the first action.” Sysco Food Servs. Inc. v. Trapnell, 890

S.W.2d 796, 801 (Tex. 1994). See also United States v. Utah Constr. & Mining

Co., 384 U.S. 394, 421-22 (1966) (holding that res judicata may be applied in the

administrative context when an administrative agency is acting in a judicial

capacity; res judicata bars subsequent litigation following the agency's decision).

The elements for res judicata and collateral estoppel were met in this case.

The parties in the case were identical to the parties in the first suit for judicial

review. The first suit for judicial review was properly filed in Travis County

District Court, which rendered a Final Judgment. See Final J., C.R. at 365-66. In

the Final Judgment, the court ruled that Findings of Fact numbers 16 and 17 and

Conclusion of Law number 8 in the Board's Final Order were not supported by

substantial evidence. See C.R. at 365-66. The district court also ruled that “the

remaining findings of fact and conclusions of law in the Board’s Final Order are

supported by substantial evidence.” See C.R. at 365-66.

The Board did not appeal the Final Judgment. Rather, at its next quarterly

board meeting, the Board adopted an Amended Final Order that conformed with

the Final Judgment by striking Findings of Fact numbers 16 and 17 and Conclusion

of Law number 8. C.R. at 223-27 The Board also reduced the administrative

penalty assessed against Mr. Dass from $4,000 to $1,500. See C.R. at 223-27. The

Board made no other changes to the original Final Order.

Mr. Dass, again acting pro se, appealed this final judgment but then

withdrew that appeal. See Notice of Appeal, dated Oct. 23, 2013, copy at App. 8.

A mere twelve days after the Board approved the Amended Final Order, Mr. Dass

withdrew his appeal because he “believe[d]” the appeal “ha[d] become moot due to

the amended Final Order from Appellee.” See Mr. Dass’s Mot. to Withdraw

Appeal, dated Dec. 3, 2013, C.R. at 370-78. The Third Court of Appeals granted

Mr. Dass’s motion to dismiss his appeal. C.R. at 379.

When Mr. Dass abandoned his appeal, he lost his opportunity to challenge

both the findings of fact and conclusions of law made by the Board and the district

court’s ruling that the remaining findings of facts were supported by substantial

evidence became final.

In the second suit for judicial review of the same agency decision, Mr. Dass

failed to state that he raised any additional or new issues in his second suit. Mot.

for Reh’g, C.R. at 380-406.

3. The Board's Amended Final Order complied with the Final

Judgment in the first suit.

Because Mr. Dass dismissed his first appeal, and raised no new issues in his

second suit for judicial review, the only live issue in the second suit was whether

the Board's Amended Final Order conformed with the Final Judgment in the first

suit for judicial review. A side-by-side comparison of the original Final Order and

the Amended Final Order shows that in the Amended Final Order the Board only

deleted Findings of Fact 16 and 17 and Conclusion of Law No. 8 and reduced the

penalty. Compare Am. Final Order, C.R. at 223-27, with Final Order, copy at App.

6. Therefore, the district court could properly grant the Board’s motion for

summary judgment under this third reason.

Because Mr. Dass fails to challenge these three possible bases for the court’s

granting summary judgment, the judgment should be affirmed.

II. Mr. Dass fails to preserve error for his Issues Nos. 1-6 and his bill of

exception issue.

Mr. Dass has waived his Issues Nos. 1-6 for three reasons. First, Mr. Dass’s

Issues Nos. 1 to 6 are waived because these issues were not raised in his response

to the Board’s motion for summary judgment. See Tex. R. Civ. P. 166a(c) (“Issues

not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.”); see City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (noting that

when challenging a summary judgment appellant may only raise for first time on

appeal issue of legal sufficiency). See also Krot v. Fid. Nat’l Title Co., No. 03-14-

00250-CV, 2014 WL 7464084, at *2 n.2 (Tex. App.—Austin Dec. 31, 2014, no

pet. hist.) (mem. op.) (argument made for first time on appeal waived because

nonmovant “failed to assert” the argument “as a bar to summary judgment” in its

trial court briefing in responding to appellee’s motion for summary judgment);

Schanzle v. JPMC Specialty Mortg., No. 03-09-00639-CV, 2011 WL 832170, *3

(Tex. App.—Austin Mar. 11, 2011, no pet.) (mem. op.) (issue waived “because it

was not properly presented to the trial court as . . . ground for denying summary

judgment”). See Resp. to Def.’s Mot. for Summ. J., C.R. at 407-15.

Second, Mr. Dass failed to raise these issues in his suit for judicial review.

See Mot. for Reh’g, C.R. at 380-406. And third, Mr. Dass’s Issues Nos. 1-6 all

relate to issues in the original Final Order. When Mr. Dass withdrew his first

appeal of the first suit for judicial review that judgment became final and he was

precluded from raising these issues in a later suit. 11

See generally Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978)

(“Litigants who represent themselves must comply with the applicable procedural rules, or else

they would be given an unfair advantage over litigants represented by counsel.”).

A. Mr. Dass also waived his Issues Nos. 1, 2, and 3 because he failed

to raise these issues in either his motion for rehearing or district

court, and these three issues do not implicate subject-matter

jurisdiction.

None of Mr. Dass’s issues implicate subject-matter jurisdiction; and,

therefore, because he failed to raise these issues in the district court, or in his

motion for rehearing, he has waived his ability to raise these issues on appeal. As

to his first issue, Mr. Dass fails to show that the Board violated Texas Government

Code section 2001.1775, or, alternatively, how an erroneous order is somehow

automatically void and not just subject to reversal upon challenge—the latter

which potential issue he waived by failing to raise this issue in the district court.

In his Issues Nos. 2 and 3, Mr. Dass erroneously conflates subject-matter

jurisdiction with a suit for judicial review regarding the scope of an agency’s

regulatory powers. See Tex. Gov’t Code § 2001.174(2)(B) (in a suit for judicial

review a court “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 . . . in excess of the agency’s

statutory authority”). He asserts, without citing any authority, that his

2001.174(2)(B) claims implicate subject-matter jurisdiction; they do not. See Dass

Br. 11, 16. Rather, subject-matter jurisdiction is “[j]urisdiction over the nature of

the case and the type of relief sought; the extent to which a court can rule on the

conduct of persons or the status of things.” Black’s Law Dictionary 870 (8th ed.

2004). 12

If, in a suit for judicial review, a party contends that the agency exceeded its

statutory authority, the only available remedy is for the district court to either

“reverse or remand the case.” Tex. Gov’t Code § 2001.174 (emphasis added). See

also, e.g., SWEPI LP v. R.R. Comm’n, 314 S.W.3d 253, 259 (Tex. App.—Austin

2010, pet. denied) (reversal by district court is proper remedy); Tex. Gen. Land

Office v. Crystal Clear Water Supply Corp., 449 S.W.3d 130 (Tex. App.—Austin

2014, pet. filed) (same).

Mr. Dass also fails to cite any authority for his request that the Court find the

Amended Final Order void. Indeed, the remedy the Court could grant Mr. Dass

would be to remand to the Board for further proceedings. See Tex. Gov’t Code

§ 2001.174; see also, e.g., Pub. Util. Comm’n v. City Pub. Serv. Bd. of San

Antonio, 109 S.W.3d 130, 137-38 (Tex. App.—Austin 2003, no pet.) (holding that

The two cases Mr. Dass cites in support of this argument are inapposite. In TEC, the issue

was whether the district court was without jurisdiction where the amount in controversy

exceeded the maximum allowed for the court to have jurisdiction. Tex. Emp’t Comm’n v. Int’l

Union of Elec., Radio & Mach. Workers, Local Union No. 782, 352 S.W.2d 252, 253 (Tex.

1961). And in Mapco, the court held that a party may raise for the first time on appeal the

jurisdictional issue of whether the “owelty award entered against it was erroneous because it was

not a party in the trial court”). Mapco, Inc. v. Carter, 817 S.W. 686, 687 (Tex. 1991). Neither

case discusses, or relies on, section 2001.174.

trial court not authorized to vacate order when agency exceeded its authority,

where section 2001.174 authorizes only reversal or remand).

A party waives error on appeal when it fails to raise the issue in the trial

court. Loftin v. Lee, 341 S.W.3d 352, 356 n.11 (Tex. 2011); Dreyer v. Greene, 871

S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim . . . must have been asserted in

the trial court in order to be raised on appeal.”); see also Carrizales v. Tex. Dep't

Prot. & Reg. Servs., 5 S.W.3d 922, 925 (Tex. App.—Austin 1999, pet. denied)

(quoting Dreyer, 871 S.W.2d at 698). Because Mr. Dass failed to raise these two

issues in either his motion for rehearing or in the district court—by adding, for

example, a cause of action for either declaratory or injunctive relief, the Court

should overrule his Issue Nos. 2 and 3. See, e.g., Pub. Util. Comm’n v. Allcomm

Long Distance, Inc., 902 S.W.2d 662, 666 (Tex. App.—Austin 1995, writ denied)

(where party alleges that agency acted beyond the scope of its statutorily conferred

powers, suit for declaratory or injunctive relief [filed in the trial court] will lie).

Here, Mr. Dass suggests he failed to brief his Issue Nos. 2 and 3 in the district

court; and these issues, therefore, are waived. See Dass Br. 11, 16 n.3. Because of

this failure to raise these issues in his suit for judicial review, the Court should

overrule Mr. Dass Issues Nos. 1, 2, and 3. See Carrizales, 5 S.W.3d at 925.

1. Mr. Dass’s Issue No. 1 is waived because even if the Board’s

issuance of the Amended Final Order was erroneous, Mr.

Dass failed to raise this issue in his motion for rehearing.

For the first time, Mr. Dass, in his Appellant Brief to this Court, asserts that

Texas Government Code section 2001.1775 has been violated. Dass Br., C.R. at 7-

10. Even if the Amended Final Order was issued in violation of Texas Government

Code section 2001.1775, this error does not make the Amended Final Order void.

An order is void if it is rendered by a body that lacked jurisdiction to render it.

Here, the Board had jurisdiction to render the Amended Final Order. If the

Amended Final Order was issued erroneously, Mr. Dass had a duty to raise that

error in both his motion for rehearing and his second suit for judicial review. Mr.

Dass provides only conclusory arguments for his assertion that the Amended Final

Order is somehow void and also fails to provide any explanation or substantiation

as to why an order issued in violation of section 2001.1775 is void.

Section 2001.1775 states that “an agency may not modify its findings or

decision in a contested case after proceedings for judicial review of the case have

been instituted under section 2001.176 and during the time that the case in under

judicial review.” Tex. Gov’t Code § 2001.1775. Mr. Dass does not cite any

authority for the proposition that an order issued in violation of section 2001.1775

is void. 13

After a hearing on the merits in the first suit for judicial review, the court

issued the Final Judgment, in which the court concluded that “Findings of Fact

Nos. 16 and 17 and Conclusion of Law No. 8 in the Board’s Final Order [we]re not

supported by substantial evidence.” C.R. at 365. The court also ruled that the

“remaining findings of facts and conclusions of law in the Board’s Final Order are

supported by substantial evidence” and remanded the matter to the Board “for any

further action it deem[ed] appropriate given the ruling.” Id. The Final Judgment

“finally dispose[d] of all claims and all parties, and is final and appealable.” Id.

The Board then issued the Amended Final Order. C.R. at 223-27. This order,

in following the court’s ruling contained in the Final Judgment, deleted Findings of

Fact Nos. 16 and 17 and Conclusion of Law No. 8. And while the court found that

the sanction and administrative penalty were supported by substantial evidence, the

Board, on its own volition, reduced the penalty from $4,000 to $1,500. The Board

made no other modifications.

The three cases Mr. Dass cites are inapplicable because none rely on or relate to Texas

Government Code section 2001.1775. See Tex. Highway Comm’n v. Tex. Ass’n of Steel

Importers, 372 S.W.2d 525, 530 (Tex. 1963) (holding that minute orders made contract void);

Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conservation Comm’n, 124

S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied) (addressing statutory permitting

requirements of the Texas Natural Resources Commission); City of Celina v. Dynavest Joint

Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin 2008, no pet.) (relying on water code).

The only point of error that Mr. Dass might raise is whether the Board’s

reduction of the penalty in the Amended Final Order was in violation of section

2001.1775. The district court, however, found that the penalty of $4,000.00 was

supported by substantial evidence; the Board merely reduced the penalty by

$2,500—from $4,000 in the original Final Order to $1,500. An error regarding this

reduction is either waived or is harmless. When Mr. Dass dismissed his appeal of

the Final Judgment, he waived any appeal from the Final Order. Moreover, he

failed to raise as an issue in his motion for rehearing in the second suit the Board’s

change in the penalty amount in the Amended Final Order. Therefore, even if he

could have raised the penalty amount in the second suit, he did not preserve this

issue for review. Alternatively, this reduction in penalty, even if it were a violation

of section 2001.1775 is harmless because the Board reduced the penalty assessed

against Mr. Dass.

At most, the Amended Final Order was erroneous; Mr. Dass, however,

waived this issue, and the Court should, therefore, overrule Mr. Dass’s Issue No. 1.

2. Although Mr. Dass’s Issue No. 2 is waived, even on the

merits Mr. Dass’s argument would fail to show how the

Board may not fix responsibility for services performed in

the practice of engineering.

The purpose of the Texas Engineering Practice Act is to “protect the public

health, safety, and welfare” and “fix responsibility for work done or services or

acts performed in the practice of engineering.” Tex. Occ. Code §§ 1001.004(b)(1),

(3). The Board found that Mr. Dass violated a provision regarding bidding on a

public works project, failing to oversee tests conducted to create reports, and

failing to prevent Trinity Soils Lab from submitting the reports without the

signature and seal of its licensed engineer Mr. Dass. See PFD, C.R. at 225.

Mr. Dass makes several erroneous assertions in his argument regarding his

second issue. See Dass Br.10-15. First, the Board’s Amended Final Order was not

wholly dependent on or limited to construction material testing. One of the

violations was Mr. Dass’s failure to prevent competitive bidding by his

engineering firm, Trinity Soils Testing. Conclusion of Law No. 7, C.R. at 226.

a. Broad definition of “practice of engineering.”