The Lorenzana Law Firm, P.C.

In the case of Dolenz v. Dallas Central Apprial District and Dallas County Appraisal Review Board, the appraisal review board rejected appellant’s and the Trust’s appeals of the request for exemptionon September 29 and November 17, 2005. Dolenz, as trustee of the Trust, filed a petition for review on November 4, 2005, but Dolenz did not file his suit on his own behalf until June 6, 2006, well outside the forty-five-day deadline. Because Dolenz as appellant did not timely file suit, the district court lacked jurisdiction over appellant’s appeal of the appraisal review board’s denial of his protests.

Generally, Section 42.21 of the Texas Property Tax Code, the code requires a party bringing an appeal of an appraisal review board decision to file a petition for review in district court within forty-five days after the party received notice that a final appealable order was entered. Tex. Tax Code Ann. § 42.21(a) (Vernon 2008).  Failure by a taxpayer appealing a review boards final appealable decision to file a petition for review in a timely manner deprives the trial court of jurisdiction over the claim.  See Appraisal Rev. Bd. v. Int’l Church of Foursquare Gospel, 719 S.W.2d 160, 160 (Tex. 1986) (per curiam); Gregg County Appraisal Dist. v. Laidlaw Waste Sys., Inc., 907 S.W.2d 12, 16 (Tex. App.-Tyler 1995,
writ denied).

An argument frequently made for not filing a timely appeal is that this denies due process.  However, as with any administrative case, proper procedure is in place, and if not followed, typically results in abrogating the administrative appeal.  Texas courts have repeatedly held that the Tax Code’s provisions do not deny a taxpayer these rights. See Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 808 S.W.2d 169, 172 (Tex. App.-El Paso), rev’d in part on other grounds, 826 S.W.2d 124 (Tex. 1991) (per curiam).

Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted or argued through a plea to the jurisdiction.  See Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225B26 (Tex. 2004).  Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo.  Id. at 228.  In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the pleadings and the evidence relevant to the jurisdictional inquiry.  See Moore v. University of Houston-Clear Lake, 165 S.W.3d 97, 101 (Tex. App.-Houston [14th Dist.] 2005, no pet.).  

 This means that when a plea to the jurisdiction is properly asserted, the judge or court cannot consider or review the substance or merits of the underlying suit.  In other words, only the merit of whether the court has jurisdiction to hear the case should be review.  This is called “subject matter jurisdiction.” 

When reviewing a trial court’s ruling on a plea to the jurisdiction, the higher court should construe the plaintiff’s pleadings liberally in the plaintiff’s favor and look to the pleader’s intent.  Miranda, 133 S.W.3d at 226.  The higher court should take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.  Id. at 228.  

Generally, and for the most part, state agencies and governmental entities are immune from law suit.  Unless specifically waived by statute or law, a governmental entity cannot be sued.  When a state agency or governmental agency does get sued.  Most frequently, government attorneys will raise the defense of governmental immunity or soverign immunity.  However, there are specific statues that waive governmental immunity.  Contact a Texas administrative law attorney to discuss your specific case or lawsuit against a governmental entity.

An agency may adopt only such rules as are authorized by and consistent with its statutory authority. See R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex. 1992).  Such authority may be either expressly conferred by statute or implied from other powers and duties given or imposed by statute. Id. In deciding whether a particular administrative agency has exceeded its rule-making powers, the determinative factor is whether the rule’s provisions are “in harmony with the general objectives of the Act involved.”  See Gerst v. Oak Cliff Sav. & Loan Ass’n, 432 S.W.2d 702, 706 (Tex. 1968); see Citizens Bank of Bryan v. First State Bank, Hearne, Tex., 580 S.W. 2d 344, 348 (Tex. 1979).

Texas stakeolders and citizens have a right to contest state agency rule making authority and rules.  Contact a Texas Administrative Law Attorney to assist you with filing such contests.

In the case of Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, the Supreme Court decided whether a state water authority had authority under an existing easement to build a second water intake and pipeline to draw water from a lake to meet growing demand from its customers.

The Court held that the easement did not grant rights for the construction. however, the high Court also ruled that the water authority could condemn and grant an easement for construction and operation of the second intake and pipeline, on the grounds that the new easement acquired through condemnation limits access to only a small portion of the lake, and does not practically destroy the lake’s public recreational use.

In a Texas Supreme Court opinion in El Paso Hospital District v. THHSC, the high court was asked to determine whether the Texas Health and Human Services Commission’s (HHSC) data-collection method for calculating prospective Medicaid inpatient service rates is an agency rule as defined by the Administrative Procedures Act (APA).  Tex. Gov’t Code § 2001.003(6).  Moreover, if the THHSC data calculation method is an agency rule, then to declare the rule invalid because HHSC neglected to adopt it as the APA requires. The high court also reviewed the THHSC procedure to determine whether HHSC failed to follow the procedure prescribed by other rules that govern an interested party’s administrative appeal of HHSC’s proposed rates.  In its legal opinion, the Texa Supreme Court concluded that HHSC’s data collection method was an invalid rule and that  the Hospitals are entitled
to have their excluded data entry claims reviewed. 

A presumption favors adopting rules of general applicability through the formal rule-making procedures the APA sets out. Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248,
255 (Tex. 1999).  These procedures include providing notice, publication, and public comment on the proposed rule. Id. (citing Tex. Gov’t Code §§ 2001.023–.030).  The process
assures notice to the public and affected persons and an opportunity to be heard on matters that affect them. Id.

         Generally, when an agency (state agency)  promulgates a rule without complying with the proper rule-making procedures, the rule is invalid. See Tex. Gov’t Code § 2001.035(a). In its opinion the court did not decide whether the February 28 cutoff was appropriate to the determination of whether hospitals receive reasonable and adequate reimbursement for inpatient Medicaid services, the court held that THHSC should have incorporated the cutoff into the language of the “base-year rule.” See, e.g., 1 Tex. Admin. Code § 355.8065(b)(24) (including cutoff in rule pertaining to additional reimbursement for disproportionate share hospitals). Because the court concluded that the February 28th cutoff was a rule that HHSC did not properly promulgate, the court reversed the court of appeals’ judgment and rendered judgment declaring the rule invalid and enjoining its enforcement. See Tex. Gov’t Code § 2001.035.

In an effort to better inform businesses and individuals about Texas administrative law, the Lorenzana Law Frm has launched a new blog as an avenue to provide information, tips, and legal analysis of Texas administrative law as well as helpful information in dealing with Texas state agencies and compliance requirements.

Welcome to Lorenzana Law Blog, this is the first posting for each category