ACCEPTED 03-14-00552-CV 5424083 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/26/2015 5:34:34 PM JEFFREY D. KYLE CLERK NO. 03-14-00552-CV
FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AT AUSTIN, TEXAS 5/26/2015 5:34:34 PM JEFFREY D. KYLE Clerk
RAGHUNATH DASS, PE Appellant,
v.
TEXAS BOARD OF PROFESSIONAL ENGINEERS Appellee.
Appealed from the 201ST Judicial District Court of Travis County, Texas
APPELLANT’S REPLY BRIEF
JIMMY ALAN HALL Jimmy Alan Hall, PLLC Texas Bar No. 08759800 4600 Mueller Blvd., Suite 2121 jahall@fbjah.com Austin, TX 78723-3372 Tel: (512) 722-3190 Fax: (512) 857-9195
ATTORNEYS FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
-i- IDENTITY OF PARTIES AND COUNSEL
NO. 03-14-00552-CV
RAGHUNATH DASS, PE Appellant,
v.
TEXAS BOARD OF PROFESSIONAL ENGINEERS Appellee.
PARTIES COUNSEL Raghunath Dass, Ph.D., P.E. Jimmy Alan Hall JIMMY ALAN HALL, PLLC Texas Bar No. 08759800 4600 Mueller Blvd., Suite 2121 Austin, TX 78723-3372 Tel: (512) 722-3190 Fax: (512) 857-9195 jahall@fbjah.com
J. Woodfin Jones Texas Bar No. 10911700 ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Ave., Suite 2350 Austin, TX 78701-3562 Tel: (512) 482-9300 Fax: (512) 482-9303 wjones@adjtlaw.com
-ii- Texas Board of Professional Jennifer Lyn Hopgood Engineers ATTORNEY GENERAL’S OFFICE, ADMINISTRATIVE LAW DIVISION Texas Bar No. 24073010 P.O. Box 12548, Capitol Station Austin, TX 78711-2548 Tel: (512) 936-1660 Fax: (512) 320-0167 jennifer.hopgood@texasattorneygeneral.gov
-iii- TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi REPLY TO ISSUES APPELLEE’S ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . 1
Issue No. 1: The Amended Final Order of the Texas Board of Professional Engineers is void because the agency was without any authority to modify its August 16, 2012 Final Order while that order was under judicial review.. . . . . . . . . . . . . . 1
Issue No. 2: Appellee, the Texas Board of Professional Engineers, did not and does not have subject-matter jurisdiction to regulate construction material testing (CMT), and for this additional reason its November 21, 2013 Amended Final Order is void ab initio... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issue No. 3: The Board’s Conclusion of Law No. 7 violates the TEPA provision limiting the TBPE’s authority to restrict bidding.. . . . . . . . . . . . . . . . . 13
Issues Nos. 4-6: Appellant’s Brief adequately addresses Appellee’s arguments on Issues Nos. 4 - 6, and therefore, Appellant will stand on its original brief on those issues. ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
-iv- INDEX OF AUTHORITIES
CASES
Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . 9
Chocolate Bayou Water Co. & Sand Supply v. Texas Natural Res. Conservation Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied). . . . 7
City of Allen v. Public Util. Comm’n of Tex., 161 S.W.3d 195, 199 (Tex. App.—Austin 2005, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin 2008) (no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
City of Sherman v. Pub. Util. Comm’n of Tex., 643 S.W.2d 681, 686 (Tex. 1983). 8
Garza v. Cantu, 431 S.W.3d 96, 108 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Jack Jones Hearing Ctrs., Inc. v. State Comm’n of Exam’rs in Fitting & Dispensing of Hearing Instruments, 363 S.W.3d 911, 914 (Tex. App.—Austin 2012, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re K.M.P., 323 S.W.3d 601, 603 (Tex. App.—Austin 2010, pet. denied) (same) .................................................................. 9
Kaspar v. Thorne, 755 S.W.2d 151, 157 (Tex. App.—Dallas 1988, no writ). . . 2, 4
Lesikar v. Rappeport, 33 S.W.3d 282, 316 (Tex. App.—Texarkana 2000, pet. denied) .................................................................. 7
Marincasiu v. Drilling, 441 S.W.3d 551, 558 (Tex. App.—El Paso 2014, pet. denied) .................................................................. 2
Nat’l Café Services, Ltd. v. Podaras, 148 S.W.3d 194, 200-01 (Tex. App.—Waco 2004, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
-v- Olin Corp. v. Dyson, 678 S.W.2d 650, 657 (Tex. App.—Houston [14th Dist.] 1984), rev’d on other grounds, 692 S.W.2d 456 (Tex.1985). . . . . . . . . . . . . . . . . . 2
Public Utility Comm’n of Texas v. Cities of Harlingen, 311 S.W.3d 610, 624 (Tex. App.—Austin 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Railroad Comm’n of Tex. v. Cont’l Bus Sys., Inc., 616 S.W.2d 179, 184 (Tex. 1981) .................................................................. 6
Republic Underwriters Ins. Co. v. Mex–Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) .................................................................. 4
Save Our Springs Alliance, Inc. v. City of Kyle, 382 S.W.3d 540, 543 n.2 (Tex. App.—Austin 2012, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
South Tex. Indus. Services, Inc. v. Texas Dept. of Water Res., 573 S.W.2d 302, 304 (Tex. Civ. App.—Austin 1978, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . 7
State v. Pub. Util. Comm’n of Tex., 840 S.W.2d 650, 655-56 (Tex. App.—Austin 1992) 883 S.W.2d 190 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 445 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Texas Comm’n on Environmental Quality v. Bonser-Lain, 438 S.W.3d 887, 891, (Tex. App.—Austin 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Texas Educ. Agency v. Cypress–Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VanderWerff v. Texas Board of Chiropractic Examiners, No. 03-12-00711-CV, 2014 WL 7466814, at *3 (Tex. App.—Austin Dec. 18, 2014, no pet.) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 14
Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997). . . . . . . . . . . . . . . . . . . 4
Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 784–85 (Tex. 1978). 7
-vi- White v. White, 179 S.W.2d 503, 506 (Tex. 1944)) . . . . . . . . . . . . . . . . . . . . . . . . . 9
STATUTES
Tex. Gov’t Code § 2001.174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. Gov’t Code § 2001.175(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Tex. Gov’t Code § 2001.1775. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 16
Tex. Gov’t Code § 2001.176. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Occ. Code, § 1001.601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
OTHER
Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tex. R. App. P. 38.9(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. R. App. P. 43.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
73A C.J.S. Public Administrative Law and Procedure § 349 (2015) . . . . . . . . . . . 8
Texas Board of Professional Engineer Policy Advisory Opinion Regarding Construction Materials Engineering (August 20, 2009). . . . . . . . . . . . 12, 17
-vii- REPLY TO APPELLEE’S ARGUMENTS
I.
Issue No. 1: The Amended Final Order of the Texas Board of Professional
Engineers is void because the agency was without any authority to modify its
August 16, 2012 Final Order while that order was under judicial review.
In his first issue, Appellant argues that the Board’s “Amended Final Order” of
November 21, 2013, was wholly void because it was entered in direct contravention
of Section 2001.1775 of the Government Code, which prohibits an agency from
modifying its decision in a contested case during the time that the case is under
judicial review. In its Appellee’s Brief, the Board asserts two responses.
Absence of Magic Words
The Board first asserts that Appellant waived this error because the prayer for
relief at the end of his Appellant’s Brief failed to explicitly request that the trial
court’s summary judgment, which affirmed the Board’s void order, be reversed. For
all intents and purposes, this argument seeks to create a “magic words” test, i.e., if an
appellant does not pray for exactly the correct relief, the court of appeals is powerless
to grant relief.
This argument by the Board fails for several reasons. First, Texas courts have
recognized that allowing an incomplete or ambiguous prayer for relief to control the
1 disposition of an appeal would not only elevate form over substance, it would be
contrary to the Texas Rules of Appellate Procedure:
Where a party’s prayer for relief is unclear or ambiguous as to the remedy sought, “it is the relevant appellate rule, and not the prayer for relief, that determines the disposition of the case.” Garza v. Cantu, No. 14–11–00724–CV, 2013 WL 5451592, at *9 (Tex. App.—Houston [14th Dist.] Aug. 27, 2013, pet. denied), citing Kaspar v. Thorne, 755 S.W.2d 151, 157 (Tex. App.—Dallas 1988, no writ) (internal brackets and quotation marks omitted). “[T]he failure of a prayer for relief to request a particular disposition does not prevent an appellate court from granting such relief on a meritorious point of error which is clearly presented in an appellant’s brief.” Id., citing Olin Corp. v. Dyson, 678 S.W.2d 650, 657 (Tex. App.—Houston [14th Dist.] 1984), rev’d on other grounds, 692 S.W.2d 456 (Tex.1985) (internal brackets and ellipses omitted).
Marincasiu v. Drilling, 441 S.W.3d 551, 558 (Tex. App.—El Paso 2014, pet. denied);
see also Garza v. Cantu, 431 S.W.3d 96, 108 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) (“[W]hether the [appellant] failed to request a remand or instead failed
to request any disposition is beside the point. For the reasons given above, the
[appellant] is entitled to the reversal he prayed for, and we look to the appellate rules
for the appropriate disposition.”).
Second, under the circumstances of this case, the absence of a specific request
that the trial court’s summary judgment be reversed could not have led to any
confusion about what relief appellant was seeking. The Appellant’s Brief
argued—and the prayer requested—that this Court determine that the Board’s
2 Amended Final Order of November 21, 2013, was wholly void. The trial court
(which effectively acts as an appellate court in a suit for judicial review) had
erroneously affirmed the Board’s void order. Pursuant to Section 2001.174 of the
Administrative Procedure Act, therefore, the only action that the trial court could
properly have taken was to “reverse or remand” the Board’s order. See Tex. Gov’t
Code § 2001.174. Indeed, the Board has acknowledged this very point in its own
brief: “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.” Appellee’s Brief at 30 (first
emphasis added). Because the trial court erred in affirming a void order, this Court
is required to “render the judgment that the trial court should have rendered,” Tex. R.
App. P. 43.3, i.e., to reverse or remand the Board’s Amended Final Order. By
definition, this requirement necessitates reversing the trial court’s judgment of
affirmance.
Third, Rule 38.9 of the Texas Rules of Appellate Procedure provides that
briefing rules are to be liberally construed and constrains appellate courts to allow
noncomplying briefs to be “amended, supplemented, or redrawn” so as to enable
courts to decide cases on the merits instead of procedural technicalities. See Tex. R.
App. P. 38.9(a). Texas courts have adhered to this procedure:
3 To the extent that the error is flagrant, the court may order a party to redraft his prayer. However, the [appellate] rules prevent this court from tailoring its relief because of the violation of briefing rules without first giving the errant party an opportunity to cure the defect.
Nat’l Café Services, Ltd. v. Podaras, 148 S.W.3d 194, 200-01 (Tex. App.—Waco
2004, pet. denied) (quoting Kaspar v. Thorne, 755 S.W.2d 151, 156–57 (Tex.
App.—Dallas 1988, no writ)); see also Republic Underwriters Ins. Co. v. Mex–Tex,
Inc., 150 S.W.3d 423, 427 (Tex. 2004) (“[W]e have instructed the courts of appeals
to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the
right to appeal is not lost by imposing requirements not absolutely necessary to effect
the purpose of a rule.”) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex.
1997)). Thus, even if this Court considered the absence of magic words in
Appellant’s prayer for relief to be a “flagrant violation” of TRAP Rule 38.1, the
remedy would be to order Appellant to redraft the prayer to cure the problem.
Finally, in order to remove any possible uncertainty as to the relief he is
seeking, Appellant has included in the prayer for relief at the end of this Appellant’s
Reply Brief a request that this Court “render judgment declaring that the Board’s
November 21, 2013 Amended Final Order is void, reverse the trial court’s judgment
affirming the Board’s Amended Final Order, and remand this case to the Board for
further proceedings consistent with this opinion; and for such other and further relief
4 to which he may be entitled.”
Failure to Preserve Error
In its second argument in response to Appellant’s Issue No. 1, the Board asserts
that “even on the merits,” Appellant should not prevail on this issue. Specifically, the
Board argues in its Appellee’s Brief that “the Board raised three possible reasons the
[trial] 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.” Appellee’s Brief at 20. The Board then proceeds to argue these
“merits” points, ignoring that Appellant’s Issue No. 1 challenges the Board’s power
and authority—i.e., jurisdiction—to enter its Amended Final Order at all, given that
a suit for judicial review of the case had been instituted and the case was still under
judicial review at the time the Amended Final Order was entered. As mentioned
above, the Administrative Procedure Act expressly prohibits such action by an
administrative agency: “Except as provided by Section 2001.175©[1], an agency may 1 Section 2001.175(c) of the APA is not relevant to this case, providing as follows: A party may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the state agency, the court may order that the additional evidence be taken before the agency on conditions determined by the court. The agency may change its findings and decision by reason of the additional evidence and shall file the additional evidence and any changes, new findings, or decisions with the reviewing court.
Tex. Gov’t Code § 2001.175(c).
5 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 is under judicial review.” Tex. Gov’t Code § 2001.1775. Thus, this case
is not one in which an administrative agency merely went beyond its statutory
authority, although that by itself would probably be enough to render the Board’s
Amended Final Order void. Nor is this case one in which an administrative agency
or official merely failed to perform a ministerial duty. Rather, this case is one in
which an agency took an action that, by statute, it was expressly prohibited from
taking.
This Court has stated that pursuant to Section 2001.1775, “an agency does not
have the authority to modify its original order once a suit for judicial review has been
filed.” Save Our Springs Alliance, Inc. v. City of Kyle, 382 S.W.3d 540, 543 n.2 (Tex.
App.—Austin 2012, no pet.) (emphasis added). Even before Section 2001.1775 was
enacted in 1995, Texas law was clear that the filing of a suit for judicial review of an
agency order deprived the agency of jurisdiction to modify the order. See Railroad
Comm’n of Tex. v. Cont’l Bus Sys., Inc., 616 S.W.2d 179, 184 (Tex. 1981) (“The rule
is sound that the Railroad Commission may not change an order after it loses
jurisdiction by an appeal.”); State v. Pub. Util. Comm’n of Tex., 840 S.W.2d 650, 655-
56 (Tex. App.—Austin 1992) (“Under Texas law, when a suit is brought to test the
6 validity of an agency order, the agency loses jurisdiction over the subject matter of
such order while the suit is pending.”), aff’d in part, rev’d in part on other grounds,
883 S.W.2d 190 (Tex. 1994); South Tex. Indus. Services, Inc. v. Texas Dept. of Water
Res., 573 S.W.2d 302, 304 (Tex. Civ. App.—Austin 1978, writ ref’d n.r.e.) (same).
Thus, the Board’s action here was wholly outside its jurisdiction, thereby rendering
its Amended Final Order void and making the Board’s “merits” arguments
immaterial.
It is certainly true that an agency order may be collaterally attacked only in
limited circumstances. But, as this Court has recently noted, there is a “well-
recognized exception to the general rule that an agency’s final order is immune from
collateral attack: when an agency takes an action that is in excess of its statutory
powers.” VanderWerff v. Texas Board of Chiropractic Examiners, No. 03-12-00711-
CV, 2014 WL 7466814, at *3 (Tex. App.—Austin Dec. 18, 2014, no pet.) (mem. op.)
(emphasis added) (citing Westheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780,
784–85 (Tex. 1978), and Chocolate Bayou Water Co. & Sand Supply v. Texas
Natural Res. Conservation Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003,
pet. denied)); see also City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403
(Tex. App.—Austin 2008, no pet.) (“[A] collateral attack upon an agency order may
be maintained successfully if the order is void.”); Lesikar v. Rappeport, 33 S.W.3d
7 282, 316 (Tex. App.—Texarkana 2000, pet. denied) (“[A] collateral attack upon an
agency order may be maintained successfully on one ground alone–that the order is
void.”); see generally 73A C.J.S. Public Administrative Law and Procedure § 349
(2015) (“Notwithstanding the rule against collateral attack, a decision [of an
administrative agency] may be subject to such attack where it is void; and, since the
jurisdiction of an agency consists of the powers granted it by statute, a determination
is void and subject to collateral attack where it is made either without statutory power
or in excess thereof.”).
A concomitant rule is that the doctrine of exhaustion of administrative
remedies does not apply when an agency acts beyond its statutory authority. See, e.g.,
Texas Educ. Agency v. Cypress–Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.
1992) (“[A] trial court may intercede before administrative remedies are exhausted
where the administrative agency lacks jurisdiction.”); City of Sherman v. Pub. Util.
Comm’n of Tex., 643 S.W.2d 681, 686 (Tex. 1983) (“[I]t has been held that when
there is an absence of jurisdiction in an administrative agency, then the doctrine of
exhaustion of administrative remedies is not applicable.”); Public Utility Comm’n of
Texas v. Cities of Harlingen, 311 S.W.3d 610, 624 (Tex. App.—Austin 2010, no pet.)
(“[F]ailure to exhaust administrative remedies does not bar judicial review when the
error alleged is that the agency acted without subject-matter jurisdiction.”).
8 It is well established that the question of jurisdiction may be raised at any time,
including for the first time on appeal. See, e.g., Texas Ass’n of Business v. Texas Air
Control Board, 852 S.W.2d 440, 445 (Tex. 1993); Texas Comm’n on Environmental
Quality v. Bonser-Lain, 438 S.W.3d 887, 891, (Tex. App.—Austin 2014, no pet.);
Jack Jones Hearing Ctrs., Inc. v. State Comm’n of Exam’rs in Fitting & Dispensing
of Hearing Instruments, 363 S.W.3d 911, 914 (Tex. App.—Austin 2012, no pet.);
City of Allen v. Public Util. Comm’n of Tex., 161 S.W.3d 195, 199 (Tex.
App.—Austin 2005, no pet.).
Finally, one of the requirements of any collateral attack is that the jurisdictional
defect must appear on the face of the record. See, e.g., Alfonso v. Skadden, 251
S.W.3d 52, 55 (Tex. 2008) (“In order for a collateral attack to be successful the record
must affirmatively reveal the jurisdictional defect.”) (quoting White v. White, 179
S.W.2d 503, 506 (Tex. 1944)); In re K.M.P., 323 S.W.3d 601, 603 (Tex.
App.—Austin 2010, pet. denied) (same). In the present case, this requirement is
easily met. The clerk’s record contains copies of the Board’s Amended Final Order,
showing the date of entry to be November 21, 2013. C.R. at 62. The clerk’s record
also shows that appellant’s appeal from the Board’s original Final Order was still
pending in this Court on that date. C.R. at 365-79. These facts are not in dispute, and
the Board acknowledges them in its Appellee’s Brief. See Appellee’s Brief at 13.
9 II.
Issue No. 2: Appellee, the Texas Board of Professional Engineers, did not
and does not have subject-matter jurisdiction to regulate construction material
testing (CMT), and for this additional reason its November 21, 2013 Amended
Final Order is void ab initio.
In his second issue, Appellant argues that the Board’s “Amended Final Order”
of November 21, 2013, was wholly void because the Texas Legislature never granted
to the Board the authority to regulate the non-professional engineering endeavor of
construction materials testing. In its Appellee’s Brief, the Board asserts two
responses.
Failure to Preserve Error
Appellant adequately raised the issue of the Board’s lack of authority to
regulate construction materials testing both before the Board in his motion for
rehearing and before the District Court in his petition. C.R. at 24-25, 383. Therefore,
this issue is not a collateral attack on the Board’s action. However, even assuming
that Appellant’s points of error in those pleadings were inadequate to raise this issue,
Appellant is entitled to collaterally attack the Board’s action on this issue because his
argument is that the Board exceeded its authority, which is an attack he can raise at
any time.
10 As noted above in reply to Appellee’s argument on Issue No. 1, an
administrative agency’s action that goes beyond its statutory authority is void and, as
a void act, is thus subject to collateral attack. VanderWerff v. Texas Board of
Chiropractic Examiners, No. 03-12-00711-CV, 2014 WL 7466814, at *3 (Tex.
App.—Austin Dec. 18, 2014, no pet.) (mem. op.). As Appellant argues,
“professional engineering” under the Texas Engineering Practice does not include
construction materials testing (CMT). Appellant’s Brief at 11-15. Thus, any actions
of the TBPE to regulate CMT is beyond the TBPE’s authority, is void, and is subject
to collateral attack.
As Appellee confirms, it is undisputed that the only three violations that the
Board concluded that Appellant had committed were construction materials testing
and not construction materials engineering. Appellee’s Brief at 35.
As noted above and in Appellant’s Brief, the doctrine of exhaustion of
administrative remedies does not apply when an agency acts beyond its statutory
authority, and questions of jurisdiction may be raised at any time, even for the first
time on appeal.
Last, the requirement that the jurisdictional defect must appear on the face of
the record is easily satisfied. The Amended Final Order is limited to three alleged
violations by Appellant stated in three conclusions of law, all of which are limited to
11 CMT. (Conclusion of Law Nos. 5, 6, and 7). The three “violations” are that
Appellant: (1) “failed to supervise the performance of the CMT testing,” (2)
“allowed TSI [Labs] to release CMT reports without having signed, dated, and
sealed the CMT reports,” and (3) “failed to exercise reasonable care and diligence to
prevent TSI [Labs] from submitting a competitive bid for [CMT that became CME
because it was for a public works project] in violation of the [Professional Services
Procurement Act] PSPA.” These facts are not in dispute, and the Board
acknowledges them in its Appellee’s Brief. See Appellee’s Brief at 10-11, 35; C.R.
at 226. All that the Amended Final Order addresses in its conclusion of law
violations is that Appellant worked for a lab that was in the business of CMT.
Broad Discretion
The Board argues that it has the discretion to construe the scope of
“professional engineering” as broad as it so desires and that it has done so in its
2005/2009 CME Policy Advisory Opinion (“CME Advisory Opinion” of “Advisory
Opinion”). While the Board may have a statutory duty to issue advisory opinions
under the TEPA, that duty does not include expanding its authority beyond the
authority that the Texas Legislature has delegated to it to regulate “professional
engineering.” The TEPA states that “On its own initiative or at the request of any
interested person, the board shall prepare a written advisory opinion about (1) an
12 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). However, neither of those two categories authorizes the Board to
venture into regulating the business of construction material testing or construction
material testing labs.
Additionally, neither the TEPA nor the Professional Services Procurement Act
requires CMT to be treated as CME for a public works project, and thus extend the
TBPE’s jurisdiction to CMT performed specifically for a public works project as
Appellant has argued. Appellant’s Brief at 16-18.
III.
Issue No. 3: The Board’s Conclusion of Law No. 7 violates the TEPA
provision limiting the TBPE’s authority to restrict bidding.
In his third issue, Appellant argues that the Board’s “Amended Final Order”
of November 21, 2013, was void, in part, because Conclusion of Law No. 7 exceeds
the Board’s jurisdiction over competitive bidding. In its Appellee’s Brief, the Board
asserts two responses.
Failure to Preserve Error
Appellant adequately raised the issue of the Board’s lack of authority to
regulate a construction materials testing labs’ submission of a bid for construction
13 materials testing both before the Board in his motion for rehearing and before the
District Court in his petition. C.R. at 24-25, 383. Therefore, this issue is not a
collateral attack on the Board’s action. However, even assuming that Appellant’s
points of error in those pleadings were inadequate to raise this issue, Appellant is
entitled to collaterally attack the Board’s action on this issue because his argument
is that the Board exceeded its authority, which is an attack he can raise at any time.
As noted above in reply to Appellee’s argument on Issue No. 1, an
administrative agency’s action that goes beyond its statutory authority is void and, as
a void act, is thus subject to collateral attack. VanderWerff v. Texas Board of
Chiropractic Examiners, No. 03-12-00711-CV, 2014 WL 7466814, at *3 (Tex.
App.—Austin Dec. 18, 2014, no pet.) (mem. op.). As Appellant argues, the Board
exceeded its authority over competitive bidding. Appellant’s Brief at 11-15. Thus,
any actions of the TBPE to regulate competitive bidding is beyond the TBPE’s
authority, is void, and is subject to collateral attack.
As noted above and in Appellant’s Brief, the doctrine of exhaustion of
administrative remedies does not apply when an agency acts beyond its statutory
authority, and questions of jurisdiction may be raised at any time, even for the first
time on appeal.
Last, the requirement that the jurisdictional defect must appear on the face of
14 the record is easily met. The Amended Final Order makes four findings of fact that
show that the services that Appellant employer provided to San Patricio County were
not CME, but were CMT, which is not subject to the competitive bidding
requirements of the PSPA. (Findings of Fact Nos. 5, 7, 9, and 10). These four finding
are that (1) Appellant’s employer, Trinity Soil Investigation Laboratories, Inc., (TSI
Labs), submitted a proposal to perform CMT to San Patricio County, (2) TSI Labs
subsequently submitted sixteen CMT reports to San Patricio County, (3) Appellant
“did not perform or directly supervise any of the testing reflected in [those] 16 CMT
reports,” and (4) Appellant did not have any knowledge of the project, or the actions
of TSI [Labs] with respect to the project until after TSI Labs submitted those sixteen
CMT reports to San Patricio County. All that these findings show is that TSI Labs
was in the business of CMT, and not CME, and that Appellant was not involved in
the CMT work that TSI Labs was doing on this project in any manner whatsoever.
Violation Occurred
The Board simply says the “Board did not act outside of [its] authority” in
finding that Appellant violated the Board’s rules when he allegedly failed to “exercise
reasonable care and diligence to prevent TSI Labs from submitting a competitive bid
for professional engineering services in violation of the PSPA.” Appellee’s Brief at
39. However, as Appellant has argued: (1) the CMT services that TSI Labs
15 performed for the Project were not “professional engineering services,” (2) the scope
of the work for which the County contract with TSI Labs was sampling and testing
only and not any professional engineering services or any work that would require a
registered professional engineer, and (3) Appellant never provided any engineering
services to the County under the subject contract, for he was unaware of the existence
of that contract until the actual supervising engineers on the Project contacted
Appellant. Appellant’s Brief at 16-18.
IV.
Appellant’s Brief adequately addresses Appellee’s arguments on Issues Nos.
4 - 6, and therefore, Appellant will stand on its original brief on those issues.
PRAYER
For the reasons stated above, Appellant Raghunath Dass, Ph.D., P.E. prays that
this Court find that :
(1) the Board’s November 21, 2013 Amended Final Order is void because it
violates Section 2001.1775 of the Administrative Procedure Act;
(2) the Texas Engineering Practices Act does not grant the Texas Board of
Professional Engineers the authority to regulate construction materials testing;
(3) any actions of the Texas Board of Professional Engineers to assert authority
or jurisdiction over construction materials testing is void and unenforceable;
16 (4) neither the Texas Engineering Practices Act nor the Professional Services
Procurement Act convert construction materials testing into construction material
testing when such testing is part of a public work project;
(5) the Texas Board of Professional Engineers’ 2005/2009 CME Policy
Advisory Opinion is an unenforceable “rule”; and
(6) even if the construction material testing that TSI Labs performed under its
contract with the San Patricio County was actually construction materials
engineering, then the supervising engineer was the “project engineers” for the
County, and not Appellant; and
Prays that this Court, render judgment declaring that the Board’s November 21,
2013 Amended Final Order is void, reverse the trial court’s judgment affirming the
Board’s Amended Final Order, and remand this case to the Board for further
proceedings consistent with this opinion; and for such other and further relief to
which he may be entitled.
17 Respectfully submitted this 26th day of May, 2015.
JIMMY ALAN HALL, PLLC 4600 Mueller Boulevard, Suite 2121 Austin, Texas 78723-3294 Telephone: 512-722-3190 Telecopier: 512-857-9195 jahall@fbjah.com
/s/ Jimmy Alan Hall JIMMY ALAN HALL Texas Bar No.08759800
J. Woodfin Jones Texas Bar No. 10911700 A LEX A N D E R D U B O SE J EFFER SO N & TOWNSEND LLP 515 Congress Ave., Suite 2350 Austin, TX 78701-3562 Tel: (512) 482-9300 Fax: (512) 482-9303 wjones@adjtlaw.com
ATTORNEYS FOR APPELLANT RAGHUNATH DASS, PH.D., P.E.
18 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 3,746 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification, and certificate of compliance). This is a computer generated document created in WordPerfect X6, using 14-point typeface for all text, except for footnotes which are 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
/s/ Jimmy Alan Hall JIMMY ALAN HALL
CERTIFICATE OF SERVICE
I, Jimmy Alan Hall, do hereby certify that a true and correct copy of the foregoing document, with appendix, if any, was served by electronic service on the following parties or attorneys of record on the 26th day of May 2015.
Jennifer L. Hopgood Assistant Attorney General Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 936-1660 Facsimile: (512) 320-0167 jennifer.hopgood@texasattorneygeneral.gov
/s/ Jimmy Alan Hall JIMMY ALAN HALL