Dolenz v. Texas State Board of Medical Examiners

899 S.W.2d 809, 1995 WL 322191
CourtCourt of Appeals of Texas
DecidedMay 31, 1995
Docket03-93-00229-CV
StatusPublished
Cited by58 cases

This text of 899 S.W.2d 809 (Dolenz v. Texas State Board of Medical Examiners) 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.

Bluebook
Dolenz v. Texas State Board of Medical Examiners, 899 S.W.2d 809, 1995 WL 322191 (Tex. Ct. App. 1995).

Opinions

KIDD, Justice.

Appellee Texas State Board of Medical Examiners (the “Board”) suspended Bernard J. Dolenz’ medical license for one year, probated. The district court dismissed Dolenz’ suit for judicial review of the order on the basis that his motion for rehearing before the Board was insufficient. Dolenz appeals the order of dismissal, urging four points of error. We will reverse the district court’s order of dismissal.

In point of error one, Dolenz asserts that the district eourt erred in holding it had no jurisdiction because his motion for rehearing before the agency was insufficient. In response to Dolenz’ original petition, the Board filed a plea to the jurisdiction asserting: “Dolenz failed to file a motion for rehearing containing the specific assertions of error committed by the Board in its decision that advanced for the first time during oral argument at trial [sic]. That failure deprives [the district] court of jurisdiction to consider those claims.” The plea to the jurisdiction complains only of the specificity of the motion for rehearing; the Board did not assert that Dolenz failed to file a motion for rehearing or that the motion was untimely.1 The resulting district-court order states:

Upon consideration of the pleadings and the presentation of arguments by both parties, it is the opinion of this Court that it has no jurisdiction over the administrative appeal of the Order entered by the Texas [811]*811State Board of Medical Examiners, due to the fact that [Dolenz’] Motion for Rehearing, filed at the Board, was insufficient.
It is therefore ORDERED, ADJUDGED AND DECREED that the administrative appeal is dismissed for lack of jurisdiction.

Section 2001.145 of the Administrative Procedure Act provides that a timely motion for rehearing is a prerequisite to a suit for judicial review of an agency order. Administrative Procedure Act (“APA”), Tex. Gov’t Code Ann. § 2001.145(a) (West 1995).2 The purpose of a motion for rehearing of an agency order is to provide an agency notice that a party is dissatisfied with a final order and that the party will seek review if the ruling is not changed. Suburban Util. Corp. v. Public Util. Comm’n, 652 S.W.2d 358, 364 (Tex.1983); see United Sav. Ass’n v. Vandygriff, 594 S.W.2d 163, 168-70 (Tex.Civ.App.—Austin 1980, writ refd n.r.e.). The supreme court has determined that a motion for rehearing must “be sufficiently definite to apprise the regulatory agency of the error claimed and to allow the agency opportunity to correct the error or to prepare to defend it.” Suburban Util. Corp., 652 S.W.2d at 365; accord Texas Ass’n of Long Distance Tel. Cos. v. Public Util. Comm’n, 798 S.W.2d 875, 881 (Tex.App.—Austin 1990, writ denied). Accordingly, a motion must set out two requirements pertaining to each contention: (1) the particular ruling or action of the agency that the movant asserts was erroneous and (2) the legal basis upon which the claim of error rests. Morgan v. Employees’ Retirement Sys., 872 S.W.2d 819, 821 (Tex.App.—Austin 1994, no writ); Burke v. Central Educ. Agency, 725 S.W.2d 393, 396-97 (Tex.App.—Austin 1987, writ refd n.r.e.). The Board’s assertion that Dolenz’ motion for rehearing did not satisfy these requirements was the sole basis of its plea to the jurisdiction.

A plea to the jurisdiction contests the court’s authority to determine the subject matter of the cause of action. State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.—Corpus Christi 1989, writ denied); Schulz v. Schulz, 726 S.W.2d 256, 257 (Tex.App.—Austin 1987, no writ). The plea raises incurable defects in jurisdiction which are shown on the face of a plaintiffs pleadings, taking the pleadings’ allegations as true.3 Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960); Washington v. Fort Bend Indep. Sch. Dist., 892 S.W.2d 156, 159 (Tex.App.—Houston [14th Dist.] 1994, writ denied). If well taken, the trial court must sustain the plea and dismiss the cause. Texas Highway Dep’t v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967). When a cause of action derives from a statute, the statutory provisions are mandatory and exclusive and must be complied with; otherwise, the action is not maintainable because the court lacks jurisdiction. Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 891 (Tex.1986); Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1087 (1926); Methodist Hosps. v. Texas Workers’ Compensation Comm’n, 874 S.W.2d 144, 149 (Tex.App.—Austin 1994, no writ). Accordingly, whether a party seeking judicial review of an agency order complied with the rehearing requirement of section 2001.145(a) of the APA may properly be the subject of a plea to the jurisdiction. See Ector County Comm’rs Court v. Central Educ. Agency, 786 S.W.2d 449, 541 (Tex.App.—Austin 1990, writ denied); Mahon v. Vandygrijf, 578 S.W.2d 144, 147—48 (Tex.App.—Austin 1979, writ refd n.r.e.).

Furthermore, a motion for rehearing may be so general that the motion fails completely as a motion for rehearing. See Hamamcy v. Texas State Bd. of Medical Examiners, 900 S.W.2d 423 (Tex.App.—Austin 1995, no writ h.). In that instance, the suit for judicial review is subject to dismissal for [812]*812want of jurisdiction. See Id.; Testoni v. Blue Cross & Blue Shield, 861 S.W.2d 387, 391 (Tex.App.—Austin 1992, no writ) (one-sentence motion was not sufficient to preserve error or provide jurisdiction). Accordingly, we consider whether the district court may have granted the Board’s plea to the jurisdiction on that basis in this proceeding.

“In deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition.” Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.—Austin 1994, writ denied); see Green v. Watson, 860 S.W.2d 238, 240 n. 2 (Tex.App.—Austin 1993, no writ). When reviewing a trial court order granting a plea to the jurisdiction, an appellate court “construe[s] the pleadings in favor of the plaintiff and look[s] to the pleader’s intent.” Texas Ass’n of Business v. Texas Air Control Bd.,

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Bluebook (online)
899 S.W.2d 809, 1995 WL 322191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolenz-v-texas-state-board-of-medical-examiners-texapp-1995.