Michael W. Lacey v. City of DeSoto, Texas City of DeSoto Police Department and Texas Commission on Law Enforcement Officer Standards and Education

• Court: Court of Appeals of Texas
• Decided: March 14, 2014
• Docket: 03-12-00122-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00122-CV

Michael W. Lacey, Appellant

v.

City of DeSoto, Texas; City of DeSoto Police Department; and Texas Commission on Law Enforcement Officer Standards and Education, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. D-1-GN-11-003548, HONORABLE RHONDA HURLEY, JUDGE PRESIDING

MEMORANDUM OPINION

Michael W. Lacey appeals the trial court’s orders granting the Texas Commission

on Law Enforcement Officer Standards and Education’s plea to the jurisdiction and granting the

City of DeSoto’s motion to dismiss. The trial court lacked subject-matter jurisdiction over the suit,

and therefore we will affirm its order dismissing Lacey’s suit against the Commission. We will also

affirm the trial court’s order granting the City’s motion to dismiss.

BACKGROUND

Lacey formerly held a peace-officer license issued by the Commission. On April 28,

2009, he was convicted of the Class B misdemeanor offense of driving while intoxicated. He was

employed as a patrol officer by the City at the time of his offense and conviction. After his conviction, the Commission’s executive director brought an enforcement

action against Lacey. The State Office of Administrative Hearings conducted a hearing before an

administrative-law judge. See Tex. Occ. Code § 1701.504(a) (establishing that if Commission

proposes to suspend or revoke license, license holder is entitled to hearing conducted by SOAH).

The administrative-law judge issued a proposal for decision recommending that the Commission

suspend Lacey’s license for ten years but fully probate the suspension. The Commission decided

instead to suspend Lacey’s license for ten years without probating the suspension and entered its

order on January 13, 2011. The Commission mailed its January 13 order to Lacey (in care of his

counsel) on February 8, 2011, and Lacey’s counsel received the order on February 11.

Lacey did not file a motion for rehearing. He filed a suit pro se in Travis County

District Court, Cause No. D-1-GN-11-000584, on February 25, 2011, seeking judicial review of

the Commission’s order. The Commission answered and filed a plea to the jurisdiction, asserting

that because Lacey failed to file a motion for rehearing, he had not exhausted his administrative

remedies, and thus, the trial court lacked jurisdiction to hear his case. On July 21, 2011, the trial

court dismissed the suit for lack of jurisdiction.

On November 17, 2011, Lacey filed the lawsuit that is the subject of this appeal. In

his petition, entitled “Plaintiff’s Original Petition of Discrimination, Retaliation, and Other Relief,”

he named the City as a defendant, in addition to the Commission. While his petition contains

allegations that the City’s police chief and the Commission’s executive director conspired to suspend

his license for the maximum time allowed for a violation under the Commission’s rules and that this

was an act of discrimination and retaliation against him, the only relief Lacey sought was the same

relief that he sought in his first lawsuit—reversal of the Commission’s order suspending his license.

2 The City moved to dismiss for lack of subject-matter jurisdiction, arguing that Lacey

failed to identify any relief sought against the City because the only relief he sought in his petition

was a reversal of the Commission’s decision to suspend his license.1 The City further asserted that

Lacey failed to identify any claim against the City and failed to show that he had exhausted his

administrative remedies for any potential claims against the City.

The Commission answered and filed a plea to the jurisdiction. The Commission

argued that Lacey’s suit should be dismissed because (1) his failure to file a motion for rehearing

meant that he did not exhaust his administrative remedies against the Commission, (2) this second

suit seeking relief from the Commission’s order was not timely filed, and (3) the doctrine of res

judicata barred Lacey’s suit.

On January 31, 2012, the trial court granted the City’s motion to dismiss and the

Commission’s plea to the jurisdiction without specifying the grounds for its decision and dismissed

Lacey’s suit against both defendants with prejudice. Lacey appeals from both orders.

ANALYSIS

Although Lacey raises five issues on appeal, none of them addresses the

jurisdictional issues raised by the City and the Commission, which are dispositive of this case.2

1 The City’s motion to dismiss was filed in the alternative and subject to its special appearance in which it asserted that it had not been properly served with Lacey’s petition. The trial court did not rule on the special appearance. 2 We note that several of Lacey’s issues presented fail to articulate an issue for this Court to decide. See Tex. R. App. P. 38.1(f). Nevertheless, we have liberally construed those issues that appear to present error by the trial court for our review, as well as the arguments supporting those issues. See Tex. R. App. P. 38.9.

3 Lacey does not dispute that the Texas Administrative Procedure Act’s (APA) contested-case

and judicial-review procedures apply to the license-revocation proceedings instituted by the

Commission against him. See Tex. Occ. Code §§ 1701.501 (establishing Commission’s power to

revoke or suspend license and establish enforcement procedures), .504(a) (providing that person

whose license the Commission proposes to suspend or revoke is entitled to hearing conducted by

SOAH), .505 (establishing that proceedings for disciplinary action are governed by Government

Code Chapter 2001), .506 (establishing that “person dissatisfied with an action of the [C]ommission

may appeal the action under Chapter 2001” of Government Code); see generally Tex. Gov’t Code

§§ 2001.001-.902 (APA). To be entitled to judicial review in a contested administrative case

governed by the APA, a party must be “aggrieved by a final decision in a contested case” and have

“exhausted all administrative remedies available.” Tex. Gov’t Code § 2001.171.

A motion for rehearing is one of the administrative remedies that a party must exhaust

before seeking judicial review. Id. § 2001.145(a); Hill v. Board of Trs. of Ret. Sys., 40 S.W.3d 676,

679 (Tex. App.—Austin 2001, no pet.). Filing a motion for rehearing is a jurisdictional prerequisite

to filing suit for judicial review of a contested administrative case. Hill, 40 S.W.3d at 679. Texas

Government Code Section 2001.146 provides that: “A motion for rehearing in a contested case

must be filed by a party not later than the 20th day after the date on which the party or the party’s

attorney of record is notified as required by Section 2001.142 of a decision or order that may become

final under Section 2001.144.” Tex. Gov’t Code § 2001.146(a).

The Commission notified Lacey’s attorney of record of the decision as required by

Section 2001.142. See Tex. Gov’t Code § 2001.142. The Commission attached as an exhibit to its

4 plea to the jurisdiction its letter to Lacey’s counsel enclosing the order, the order itself, and the

certified-mail return receipt indicating that the letter was mailed to Lacey’s counsel on February 8,

2011 and received by Lacey’s counsel on February 11, 2011. Thus, Lacey’s motion for rehearing

was due twenty days later on March 3, 2011. Because he did not file a motion for rehearing by

that date, the Commission’s decision became final on March 3, 2011. See id. § 2001.144(a)(1)

(“A decision in a contested case is final: (1) if a motion for rehearing is not filed on time, on the

expiration of the period for filing a motion for rehearing . . . .”).

Lacey does not contend that he filed a motion for rehearing. He argues that he was

not required to under Section 2001.145, which provides that a motion for rehearing of an order that

is final under Section 2001.144(a)(3) or (4) is not a prerequisite for appeal. See id. § 2001.145.

Neither Section 2001.144(a)(3) nor (4) applies to the Commission’s order in this case, however.

Section 2001.144 (a)(3) allows an order to become final on the date the decision is rendered if a state

agency finds that an imminent peril to the public health, safety, or welfare requires immediate effect

of the order. Id. § 2001.144(a)(3). Section 2001.144(a)(4) allows the parties to include a specified

finality date in the order if all parties have agreed to the specified date in writing or on the record.

Id. § 2001.144(a)(4). The specified date may not be before the date the order is signed or later than

the 20th day after the date the order was rendered. Id. Lacey acknowledges that the parties did not

agree on a specified finality date, but he reads Section 2001.144(a)(4) to mean that the order may not

be signed later than the 20th day after it was rendered. This is an incorrect reading of the statute,

which does not establish a deadline for the signing of an order. He also asserts that because the order

was not mailed until February 8, 2011, it was not signed until more than twenty days after it was

5 rendered. This is an incorrect assertion; the signature page of the order is dated January 13, 2011,

and the text of the order states that the Commission considered it on January 13, 2011.

Lacey was notified of the order as required by the APA; his motion for rehearing

was due on March 3, 2011. No motion for rehearing was filed, and thus the order became final and

non-appealable on that date. See id. §§ 2001.144(a)(1) (establishing finality date when no motion

for rehearing has been filed), .145(b) (providing that only decisions that become final under

Section 2001.144(a)(2), (3), or (4) are appealable). Lacey’s failure to file a motion for rehearing and

consequent failure to exhaust his administrative remedies resulted in a lack of jurisdiction in the trial

court that could not be cured. See Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 567-68

(Tex. App.—Austin 2008, pet. denied). The trial court therefore properly granted the Commission’s

plea to the jurisdiction.3

The trial court also properly granted the City’s motion to dismiss. The only relief that

Lacey sought in his petition was reversal of the Commission’s order. Although Lacey alleges in his

petition that the City’s police chief influenced the Commission’s executive director to suspend his

license for the maximum time allowed for a violation under the Commission’s rules, the relief that

Lacey sought could only be obtained against the Commission—the only entity with the power to

suspend or revoke his license. Thus, the trial court properly dismissed Lacey’s suit against the City.4

3 We do not address the other grounds raised by the Commission in its plea to the jurisdiction because Lacey’s failure to exhaust his administrative remedies is dispositive. See Tex. R. App. P. 47.1. 4 We note that Lacey attached a notice of right to sue from the Texas Workforce Commission to his response to the City’s special appearance and motion to dismiss. Although Lacey’s petition and appellate brief contain conclusory allegations of discrimination and retaliation reaching back over his lengthy career as a peace officer, the only alleged act by the City for which he sought relief was his assertion that the City police chief allegedly influenced the Commission’s decision to

6 CONCLUSION

Because we conclude that the trial court lacked jurisdiction to hear Lacey’s suit and

properly dismissed it, we overrule the issues presented by Lacey on appeal. We affirm the trial

court’s orders dismissing the suit.

__________________________________________

Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: March 14, 2014

suspend his license. His pleadings in the trial court did not identify any statutory basis for relief based on his allegations of discrimination and retaliation, and his appellate brief is also devoid of any legal argument supporting any potential claims related to those allegations. The only case that Lacey cites in his appellate brief is Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), a case concerning employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Lacey fails to provide any analysis of the case or to explain how it supports any of his contentions. See Tex. R. App. P. 38.1(i) (providing that brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record); Bullock v. American Heart Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied) (“Failure to cite legal authority or provide substantive analysis of the legal issue presented results in waiver of the complaint.”). Although we attempt to construe a pro se appellant’s briefing liberally, see Tex. R. App. P. 38.9, we must also hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable procedural rules, Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). We cannot discern any issue articulated by Lacey on appeal that asserts error by the trial court related to his generalized allegations of discrimination and retaliation. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.). To the extent that he intended to present such an issue, he has waived it by inadequate briefing.