AFLOA, LLC v. Texas Department of Motor Vehicles
This text of AFLOA, LLC v. Texas Department of Motor Vehicles (AFLOA, LLC v. Texas Department of Motor Vehicles) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 15-24-00003-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 12/16/2024 4:30 PM CHRISTOPHER A. PRINE NO. 15-24-00003-CV CLERK ____________________________________________________________ FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS IN THE COURT OF APPEALS 12/16/2024 4:30:08 PM FIFTEENTH APPELLATE DISTRICT OF TEXAS CHRISTOPHER A. PRINE AUSTIN, TEXAS Clerk _____________________________________________________________
AFLOA LIMITED LIABILITY COMPANY D/B/A AFLOA, Appellant,
v.
TEXAS DEPARTMENT OF MOTOR VEHICLES, Appellee. ____________________________________________________
On Appeal from Cause No. D-1-GN-22-006692 In the 455th Judicial District Court, Travis County, Texas The Honorable Catherine Mauzy, Judge Presiding ____________________________________________________
SUPPLEMENTAL BRIEF OF APPELLEE, THE TEXAS DEPARTMENT OF MOTOR VEHICLES ____________________________________________________ KEN PAXTON ERNEST C. GARCIA Attorney General of Texas Chief, Administrative Law Division
BRENT WEBSTER TED A. ROSS First Assistant Attorney General State Bar No. 24008890 Assistant Attorney General RALPH MOLINA Office of the Attorney General Deputy First Assistant Attorney P.O. Box 12548 (MC 018) General Austin, Texas 78711-2548 512-475-4191 ● fax 512-320-0167 JAMES LLOYD ted.ross@oag.texas.gov Deputy Attorney General for Civil Counsel for Appellee Litigation Texas Department of Motor Vehicles TO THE HONORABLE JUSTICES OF THE FIFTEENTH COURT OF APPEALS:
Appellee, the Texas Department of Motor Vehicles (TxDMV), by and through
the Office of the Attorney General of Texas and the undersigned Assistant Attorney
General, submits the following supplemental brief in the captioned appeal.
I. AFLOA failed to file a motion for rehearing of the TxDMV Order on Rehearing, which is a statutory prerequisite to judicial review.
On December 4, 2024, the Clerk of this Court sent a letter to the parties’
counsel requesting supplemental briefing on the issue of whether Appellee, AFLOA
Limited Liability Company d/b/a AFLOA (AFLOA), was required to file a motion
for rehearing of the TxDMV October 22, 2022 Decision and Order Denying Motion
for Rehearing (Rehearing Order). AR 000116-119; Exhibit A. The Court cited
Mosley v. Texas Health & Human Servs. Comm., 593 S.W.3d 250, 258 (Tex. 2019)
in support of the fact that a motion for rehearing is a jurisdictional prerequisite to
judicial review. TxDMV agrees with the Court because the Rehearing Order
modified the TxDMV Final Order dated August 31, 2022 by reducing the $500,000
penalty to $50,000. Id. AFLOA was therefore required to file a motion for rehearing
of the Rehearing Order because it was a different order than the original Final Order.
Ector County Comm’rs Court v. Central Education Agency, 786 S.W.2d 449, 450
(Tex. App.—Austin 1990, writ denied) (agency entered new and different order and
county was therefore required to file new motion for rehearing in order to seek 2 judicial review). See also Terrell v. Williams, NO. 03–13–00473–CV, 2015 WL
3393811, at *3 (Tex. App.—Austin May 21, 2015, pet. denied) (mem. op.)
(petitioner must file new motion for rehearing when agency modifies its order in
response to a motion for rehearing, regardless of the nature of the modifications);
see also Southern Union Gas Co. v. R.R. Comm’n, 690 S.W.2d 946, 948 (Tex.
App.—Austin 1985, writ ref’d n.r.e.) (requiring new motion for rehearing; agency
order “cannot be final and appealable when it has been changed by a subsequent
order”).
II. This Court should nevertheless remand this proceeding to the TxDMV to allow AFLOA to file a motion for rehearing of the Rehearing Order.
TxDMV also agrees with the Court that a motion for rehearing of the
Rehearing Order is not contained in the record and, in fact, no such MFR was filed.
However, TxDMV believes that a remand of this proceeding to the agency in order
to allow AFLOA to file a motion for rehearing of the Rehearing Order is warranted
under the Supreme Court’s decision in Mosley.
In Mosley, a letter the agency sent to the petitioner transmitting a final decision
and order quoted a regulation stating the petitioner had thirty days to seek judicial
review from a district court, without mentioning the requirement to file a motion for
rehearing. Mosley, 593 S.W.3d at 256. The petitioner did not file a motion for
3 rehearing, and the Court held that the letter’s omission of any reference to a motion
for rehearing amounted to a denial of due process. Id. at 254.
In this case, on August 31, 2022 the TxDMV sent a letter to the parties stating
that AFLOA may file a motion for rehearing if it disagreed with the TxDMV Final
Order. AR 000111-000112. Exhibit B. AFLOA did file a motion for rehearing of
that order. AR 000111-112. However, the October 18, 2022 letter transmitting the
Rehearing Order of the same date stated that “[t]his Order concludes the appeal
process at the administrative level” and “[a]ny party that disagrees or is dissatisfied
may file an appeal in the state district court of Travis County or the Third Court of
Appeals within thirty (30) days from the date the Motion for Rehearing was denied.”
AR TxDMV 000344; Exhibit C. The October 18 letter did not mention the
requirement to file a motion for rehearing.
TxDMV therefore believes the proper remedy in this case is to remand the
proceeding to the TxDMV in order to allow AFLOA to file a motion for rehearing
of the Rehearing Order, as the Court did in Mosley. 593 S.W.3d at 269 (“We do not
remand the case to the court of appeals for reconsideration of Mosley’s appeal on
the merits because we agree the trial court lacked jurisdiction to consider Mosley’s
case in the first place. Instead, we direct the Health and Human Services Commission
to reinstate Mosley’s administrative case to afford her an opportunity to seek
4 rehearing of the order entered against her, thus allowing her to seek judicial review
by the district court anew should the commission deny her motion for rehearing.”).
CONCLUSION AND PRAYER
For the reasons discussed above, the TxDMV respectfully requests this Court
to remand this proceeding to the TxDMV in order to allow AFLOA to file a motion
for rehearing of the Rehearing Order.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
BRENT WEBSTER First Assistant Attorney General
RALPH MOLINA Deputy First Assistant Attorney General
JAMES LLOYD Deputy Attorney General for Civil Litigation
ERNEST C. GARCIA Chief, Administrative Law Division
/s/ Ted A. Ross Ted A. Ross Assistant Attorney General State Bar No. 24008890 OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW DIVISION P. O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 475-4191 Email: ted.ross@oag.texas.gov 5 Attorneys for Appellee Texas Department of Motor Vehicles
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2)(B), this brief contains 810 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).
/s/ Ted A. Ross Ted A. Ross Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and forgoing document has been served on the 16th day of December 2024, to the following counsel via E-Service:
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