Keystone RV Co. v. Texas Department of Motor Vehicles
Keystone RV Co. v. Texas Department of Motor Vehicles
Opinion of the Court
OPINION
This proceeding arises from an administrative “Lemon Law” complaint about a travel trailer manufactured and warrantied by Keystone RV Company. Keystone ultimately settled the complaint by agreeing to replace the vehicle with a newer model, in return for which the vehicle owner moved for and obtained agency dismissal of the complaint. But while resolving the original dispute between the owner and Keystone, the order of dismissal, signed by the Chief Hearings Examiner of the Texas Department of Motor Vehicles (Depart
This threshold jurisdictional question requires us to address—apparently as a matter of first impression—the effects of amendments made to Occupations Code Chapter 2301 by the Eighty-third (2013) Legislature that bear upon the scope of our direct-appeal jurisdiction under Section 2301.751(a). Having examined these amendments as they interact with other provisions of Chapter 2301, we conclude that their effect is to deprive us of jurisdiction we would previously have possessed to review the order challenged here under Section 2301.751(a). Accordingly, we must grant the Department’s motion and dismiss Keystone’s petition.
Our analytical starting point is that sovereign immunity generally deprives courts of subject-matter jurisdiction to review state-agency orders
To invoke our jurisdiction, as previously noted, Keystone relies on Occupations Code Section 2301.751(a), which in its current form provides:
A party to a proceeding affected by a final order, rule, or decision or other final action of the board with respect to a matter arising under this chapter or Chapter 503, Transportation Code, may seek judicial review of the action under the substantial evidence rule in:
(1) a district court in Travis County; or
(2) the court of appeals for the Third Court of Appeals District.13
The Department does not contest, and there is little room for dispute, that Keystone is a “party” to a “proceeding” that is “affected” by an “order ... or decision or other ... action ... with respect to a matter arising under this chapter.” At relevant times, the Texas Lemon Law has been codified within Subchapter M of “this chapter,” Chapter 2301 of the Occupations Code.
The more difficult issue, and the parties’ principal point of divergence, concerns the administrative authority or actor who‘issued the dismissal order and the closely related question of whether that order qualifies as an administratively “final order.” As Keystone acknowledges, Section 2301.751(a) at relevant times has conferred jurisdiction to review only a “final order, rule, or decision or other final action” that is “of the board.”
The dismissal order Keystone seeks to challenge was not “of the board” in the sense of being signed by the board directly or under its name explicitly. Instead, the order was signed by Edward Sandoval, as “Chief Hearings Examiner, Office of Administrative Hearings, Texas Department of Motor Vehicles.” The parties generally agree that Sandoval had authority to sign this order by virtue of authority delegated by or under other provisions of Chapter 2301. But the parties have markedly different views as to the specific statutory source or underpinning of that delegated power, and this divergence gives rise to correspondingly competing positions as to whether the dismissal order signed by Sandoval qualifies as a “final order, .. decision, or other final action of the board,” so as to be subject to judicial review under Section 2301.751(a).
Before the 2013 amendments, Subchap-ter M of Chapter 2301 had included a Section 2301.606(a) that vested authority in the director of the Motor Vehicle Division of the Texas Department of Transportation (the Department’s predecessor) to issue final orders in Lemon Law proceedings.
As amended, Section 2301.704 requires that “[a] hearing under Section 2301.204 or Subchapter M [i.e., Lemon Law proceedings] must be held by a hearings examiner,” who is vested with the same powers to conduct hearings as with ALJs.
In a contested case hearing under Section 2301.204 or Subchapter M, a hearings examiner shall issue a final order.40
But nowhere in the H.B. 1692 amendments, or elsewhere in current Chapter 2301, are the final orders and other actions of hearings examiners now authorized under amended Section 2301.704 termed as being “of the board.” Consequently, the current Chapter 2301 leaves a textual disconnect between Lemon Law orders under amended Section 2301.704 and the judicial-review authorization in Section 2301.751(a) that did not exist in the prior version.
Of further note regarding H.B. 1692 is that the enactment also made conforming changes within Subchapter M to eliminate preexisting references to “the director” as having hearing or final-order authority, replacing them with language that did not identify a specific actor.
The second set of notable amendments made by the Eighty-third Legislature came through H.B. 2741,
(1) one or more of the board’s members;
(2) the executive director; or
(3) the director of a division within the department designated by the board or the executive director to carry out the requirements of this chapter.53
To this preexisting framework, H.B. 2741 added a new Subsection (e) to Section 2301.154, which specifies that acts made pursuant to delegations under Subsections (b) or (c) are deemed to be “of the board,” similar to former Section 2301.606(a):
An action taken by a person to whom a power or other authority is delegated under Subsection (b) or (c) ,, is considered an action of the board and may not be appealed to the board.54
Other material effects of H.B. 2741 included amending multiple provisions within Subsection O that had referred to “the board” as the actor who generally has final-order authority. As amended, these references explicitly include not only “the board,” but also “a person” or “other person” who has been “delegated final order authority” or “power from the board” “under Section 2031.154”
The parties emphasize opposing sides of this dichotomy in their arguments concerning Sandoval’s authority and whether his dismissal order was a final order “of the board” as required for review under Section 2301.751(a). The Department maintains that Sandoval signed the dismissal order pursuant to the delegation of final-order authority to hearings examiners made through Section 2301.704 as amended by H.B. 1692.
In Keystone’s view, Sandoval had been delegated final-order authority under Section 2301.154, the provision empowering “the board by rule [to] delegate the authority to issue a final order in a contested case hearing brought under this chapter” to one or more board members, the Department’s executive director, or “the director of a division within the department designated by the board or the executive director to carry out the requirements of this chapter.”
On the motion of any party, the board or other person delegated final order authority under Section 2301.15⅛, without*841 holding a contested case hearing, may-issue a final order dismissing a complaint, ’ protest, or response in accordance with the terms and procedures set forth in the Texas Rules of Civil Procedure.61
And because the dismissal order was “an action taken by a person to whom a power or other authority is delegated under Subsection (b) or (c)” of Section 2301.154, Keystone concludes that Section 2801.154(e) deems the order to be “of the board” and thus subject to review under Section 2301.751(a).
Discerning whether Sandoval’s order is founded on the final-order authority delegated hearings examiners under amended Section 2301.704, as the Department urges, or was instead made pursuant to a delegation under Section 2301.154(c), as Keystone insists, or both or neither, is made more challenging still by the inconsistencies that remain within Chapter 2301 following the 2013 amendments. As Sub-chapter M currently stands, it contains several provisions, originating in H.B. 2741, which contemplate that “the board or a person delegated power from the board under Section 2301.154” has final-order authority in Lemon Law proceedings.
From the text of Section 2301.154(c), we can discern that a delegation made under that provision is distinguished by two basic requirements or features. First, there must exist a board rule that “delegated] the authority to issue a final order in a contested case hearing brought under this chapter.”
(a) Pursuant to Occupations Code, § 2301.154(c) ... the director of the department division that regulates the distribution and sale of motor vehicles is authorized to issue final orders in cases without a decision on the merits resolved in the following ways:
(1) by settlement;
(2) by agreed order;
(3) by withdrawal of the complaint;
(4) by withdrawal of a protest;
(5) by dismissal for want of prosecution;
(6) by dismissal for want of jurisdiction;
(7) by default judgment; or
(8) when a party waives opportunity for a hearing.67
Rule 215.58(a) is thus an explicit exercise of the board’s power under Occupations Code Section 2301.154(c) to “by rule ... delegate [its] authority to issue a final order in a contested case hearing brought under this chapter,” albeit only to the extent of issuing final orders effecting the enumerated categories of non-merits dis
Without question, Sandoval’s order effected resolution of a case “by settlement” and arguably also “by withdrawal of the complaint,” as the complainant had moved both for dismissal and withdrawal of his complaint pursuant to his settlement with Keystone. But for Sandoval to have possessed final-order authority under Rule 215.58(a), he must also have had the status required of the delegate under that rule: (1) “the director” (2) “of the department division” (3) “that regulates the distribution and sale of motor vehicles.” To demonstrate this status, Keystone relies solely on Sandoval’s title and capacity as reflected in his signed order—“Chief Hearings Examiner, Office of Administrative Hearings, Texas Department of Motor Vehicles”—and does not plead or present any further evidence of a factual basis for that assertion.
A Department “division” is created by the executive director pursuant to a statutory duty to “organize the department into divisions to accomplish the department’s functions and the duties assigned to the department.”
Alternatively, Keystone relies on 43 Tex. Admin. Code § 215.55. Rule 215.55, as previously noted, provides that “[t]he hearings examiner has final order authority in a contested case under Occupations Code, § 2301.204 or [Subchapter M], filed on or after January 1, 2014.”
Keystone does not refer us to any other rule that could have delegated final-order authority to Sandoval under Occupations Code Section 2301.154(c), nor can we discern any. Consequently, Sandoval’s dismissal order could not be a final order “of the board” by virtue of Occupations Code Section 2301.154(e), and thus cannot be appealed under Section 2301.751(a). Our reasoning is founded on what we perceive to be the unambiguous text of Section 2301.751(a) as it interacts with the other provisions of Chapter 2301 we have addressed. But if the statutory text leaves any room to question our analysis, it is at least sufficiently supportive to render Section 2301.751(a)’s waiver of immunity less than “clear and unambiguous,” requiring us to construe it against jurisdiction.
We dismiss Keystone’s petition for want of subject-matter jurisdiction.
. See Tex. Occ. Code § 2301.751(a). An accompanying Section 2301.751(b) goes on to provide that "[e]xcept as otherwise provided by this chapter, an appeal brought in a district court may be removed to the court of appeals by any party before trial in the district court on the filing of notice of removal with the district court.” Id. § 2301.751(b).
. See id. § 2301.609(a) ("A party to a proceeding under this subchapter [M] that is affected by a final order related to the proceeding is entitled to judicial review of the order under the substantial evidence rule in a district court of Travis County.").
. See, e.g., Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 514-15 & n.6 (Tex. App.-Austin 2010, no pet.) (citing Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 198 (Tex. 2004); Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000)); see also Continental Cas. Ins. Co., 19 S.W.3d at 397 (“It is well recognized under Texas law that there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right.” (citing Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex. 1967)).
. See, e.g., Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006) (State cannot “be sued in her own courts without her consent, and then only in the manner indicated by that consent” (quoting Hosner v. DeYoung, 1 Tex. 764, 769 (1847))); State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 424 (Tex. 1936) (State may be sued “only in the manner, place, and court or courts designated” by Legislature); Bacon v. Texas Historical Comm’n, 411 S.W.3d 161, 173 (Tex, App.-Austin 2013, no pet,) ("[Sovereign immunity compels Texas courts to defer to the Legislature as the gatekeeper controlling when and how citizens can sue their state government or its officers for their official acts.” (citing Wichita Falls State
. See, e.g., City of Houston v. Bates, 406 S.W.3d 539, 543 (Tex. 2013) (“We begin with the statute’s text and the presumption that the Legislature intended what it enacted.” (citing Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010))).
. See, e.g., TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) ("We presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.” (citing In re M.N., 262 S.W.3d 799, 802 (Tex. 2008))).
. See, e.g., Ochsner v. Ochsner, No. 14-0638, — S.W.3d-,- & nn.16 & 17, 2016 WL 3537255, at *3 & nn.16 & 17, 2016 Tex. LEXIS 569, at *10-11 & nn.16 & 17 (Tex. June 24, 2016) (“ 'The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.' ” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). “We look to the statutory scheme as a whole ... not to snippets taken in isolation.” (citing Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) ("While we must consider the specific statutory language at issue, we must do so while looking to the statute as a whole, rather than as isolated provisions.”); Scalia & Garner, at 167 (“The text must be construed as a whole.”))); see also In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (orig. proceeding) (noting presumption that Legislature chooses words of a statute "with complete knowledge of the existing law and with reference to it” (quoting Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990))). Such context informs, among other considerations, whether the Legislature intended words in their "plain” or "common” meaning, in a narrower or more technical connotation, or whether the facially “plain” meaning would yield the rarity of “absurd results” the Legislature could not possibly have intended. See, e.g., City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008) ("We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired. Otherwise, we construe the statute's words according to their plain and common meaning, unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results.” (citing Tex. Gov’t Code § 311.011(b); Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004); University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004), superseded by statute on other grounds, Tex. Gov’t Code § 311.034, as recognized in Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex. 2012); Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n, 616 S.W.2d 187, 189 (Tex. 1981))).
. See, e.g., Bacon, 411 S.W.3d at 173 (quoting Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002) (quoting Tex. Gov’t Code § 311.034; University of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994))).
. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see also Taylor, 106 S.W.3d at 697 ("[W]hen construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity.”).
. See, e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (citing In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004)).
. See, e.g., University of Houston v. Barth, 403 S.W.3d 851, 854 (Tex. 2013) (per curiam) (observing, with regard to sovereign immunity, that "[t]he issue is one of subject-matter jurisdiction, which we review de novo” (citing Texas Dep’t of Parks & Wildlife v. Miranda,
. See, e.g., Bacon, 411 S.W.3d at 170-71 ("The plaintiff has the initial burden of alleging facts that would affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Mere unsupported legal conclusions do not suffice. ... We may also consider evidence that the parties have submitted and must do so when necessary to resolve the jurisdictional issues.” (citing Miranda, 133 S.W.3d at 226; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); Creedmoor-Maha Water Supply Corp., 307 S.W.3d at 515—16 & nn.7 & 8)).
. Tex. Occ. Code § 2301.751(a).
. See generally id. §§ 2301,601-613.
. See generally id. §§ 2301.701-.713.
. See id. §§ 2301.602-605; see also Dutchmen Mfg., Inc. v. Texas Dep’t of Transp., 383 S.W.3d 217, 223 (Tex. App.-Austin 2012, no pet.) (summarizing these key statutory features under prior iteration of version of Lemon Law administered by TxDOT Motor Vehicle Division).
. See Tex. Occ. Code § 2301.607(a) (“A refund or replacement under this subchapter because a motor vehicle is alleged to not conform to an express warranty is not available to the owner of the vehicle unless the owner has exhausted the administrative remedies provided by this subchapter.”).
. See Party, Black’s Law Dictionary (9th ed. 2009) (“One by or against whom a lawsuit is brought <a party to the lawsuit>”); see also Zanchi v. Lane, 408 S.W.3d 373, 377-80 (Tex. 2013) (construing "party” as used in Medical Liability Act’s expert-report requirement as "one named in a lawsuit,” relying in part on dictionary definitions and usage in Texas Rules of Civil Procedure).
. See Hooks v. Texas-Dep’t of Water Res., 611 S.W.2d 417, 419 (Tex. 1981) ("The terms ‘aggrieved’ and ‘affected’ are synonymous and both relate to the requirement that a person show a ‘justiciable interest.’ ” (citing City of San Antonio v. Texas Water Comm’n, 407 S.W.2d 752, 765 (Tex. 1966)).
. The inclusion of these additional terms in the dismissal order was based on a Department rule, 43 Tex. Admin. Code § 215.210(4), that requires a manufacturer who reacquires a vehicle incident to voluntary settlement of a Lemon Law complaint to comply with the same disclosure (a/k/a “branding”) requirements the Legislature has prescribed where a Lemon Law complaint proceeds to hearing, the complainant prevails, and reacquisition is ordered as a remedy. Compare id. with Tex. Occ, Code § 2301.610(a). Keystone’s arguments on the merits, challenging the Department’s authority to impose these requirements, thus implicate the validity of both the dismissal, order and the underlying rule. Although a “rule” is included among the administrative “actions” that may be reviewed under Section 2301.751(a), see Tex. Occ. Code § 2301.751(a), Keystone has not explicitly raised its challenge to the underlying rule as an independent basis for jurisdiction here. To the extent its petition or arguments could be construed as doing so, that attempt would be untimely, as Keystone was required to file its petition under Section 2301.751(a) "not later than the 30th day after the date on which the action, ruling, order, or decision becomes final and appealable,” id. § 2301.752(a), and the material components of 43 Tex. Admin. Code § 215.210(4) predate Keystone's petition by years. See 34 Tex. Reg. 8239, 8239, 8246, 8277 (2009), adopted by 35 Tex. Reg. 883, 883-84, 896 (2010) (codified as amended at 43 Tex. Admin. Code § 215.210) (Texas Dep’t of Motor Vehicles, Compliance With Order Granting Relief); 37 Tex. Reg. 2054, 2054, 2056, 2061 (2012), adopted by 37 Tex. Reg. 4950, 4950, 4952, 4954 (2012) (codified as amendment to 43 Tex. Admin. Code § 215.210) (Texas Dep’t of Motor Vehicles, Compliance With Order Granting Relief). Consequently, we have jurisdiction to reach Keystone’s challenge to the underlying rule only to the extent we have jurisdiction to review the dismissal order applying the rule. Cf. Texas Logos, L.P. v. Texas Dep’t of Transp., 241 S.W.3d 105, 123-24 (Tex. App.-Austin 2007, no pet.) (absence of judicial jurisdiction to review agency's action rendered moot challenge to underlying rule under Section 2001.038 of Administrative Procedure Act).
. Within Section 2301.751(a), "of the board” appears immediately after “other final action,” which is the concluding reference to four different varieties of administrative actions that are made subject to judicial review (“final order, rule, or decision or other final action of the board_”). In a very recent decision, the Texas Supreme Court gave controlling effect to the "last-antecedent” canon of statutory construction (" ‘a ' qualifying phrase in a statute or the Constitution must be confined to the words and phrases immediately preceding it to which it may, without impairing the meaning of the sentence, be applied’") to the exclusion of the "series-qualifier” canon (" ‘When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.’ ”). Sullivan v. Abraham, 488 S.W.3d 294, 297-99 (Tex. 2016) (quoting Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000); Scalia & Garner, supra note 7, at 147). Were we to similarly give controlling effect to the last-antecedent canon here, "of the board” as used in Section 2301.751(a) would modify only the concluding reference to "other final action” and not the preceding "final order,” "rule,” or "decision” in the series, giving Section 2301.751(a) a broader scope than Keystone assumes. But doing so, however, would also imply that the modifier following "of the board”—"a final order, rule, or decision or other final action of the board with respect to a matter arising under this chapter ... ”— likewise modifies only the reference to "other final action of the board” that immediately precedes it. Under this reading, Section 2301.751(a) would be an expansive if not universal authorization for judicial review—including direct review in this Court—for any
.See Tex. Occ. Code §§ 2301.002(2) (definitions applicable to Chapter 2301) (" ‘Board’ has the meaning assigned by Section 2301.005.”), 2301.005(a) ("A reference in law, including a rule, to the Texas Motor Vehicle Commission or to the board means the board of the Texas Department of Motor Vehicles.”); see also Tex. Transp. Code § 1001,021 (creating Department’s nine-member governing board and prescribing its composition).
. See Tex. Occ. Code § 2301.151(a).
. See id. § 2301.155.
. See td. § 2301.153(a).
. Sandoval, in his capacity as Chief Hearings Examiner, also overruled a motion for rehearing filed by Keystone, Neither party disputes that Sandoval had authority to do so, though their positions regarding final-order authority would imply correspondingly varying rationales as to the source of that authority.
. Act of May 22, 2001, 77th Leg., R.S., ch. 1421, § 5, sec. 2301.606, 2001 Tex. Gen. Laws 4570, 4960 (“The director under board rules shall conduct hearings and issue final
. Id. (emphasis added).
. Id. § 5, sec. 2301.751(a), 2001 Tex. Gen. Laws at 4965, amended by Act of May 26, 2013, 83d Leg., R.S., ch. 1135, § 31, sec. 2301.751(a), 2013 Tex. Gen. Laws 2705, 2711 (codified as amended at Tex. Occ. Code § 2301.751(a)).
. See Winnebago Indus. v. Texas Dep't of Motor Vehicles, No. 03-12-00760-CV, 2014 WL 1432041, at *1-6, 2014 Tex. App. LEXIS 3836, at *1-15 (Tex. App.-Austin Apr. 10, 2014, no pet.) (mem. op.) (reviewing direct appeal of 2012 Lemon Law final order under Section 2301.751(a); neither the parties nor this Court questioned jurisdiction).
. See 34 Tex. Reg. 8239, 8239, 8246, 8275 (2009), adopted by 35 Tex. Reg. 883, 883-84, 896 (2010) (previously codified at 43 Tex. Admin. Code § 215.207), repealed by 37 Tex. Reg. 2054, 2054 (2012), and repeal adopted by 37 Tex. Reg. 4950, 4950 (2012); 37 Tex. Reg. 2054, 2054, 2055, 2058-59 (2012), adopted by 37 Tex. Reg. 4950, 4950, 4951-52 (2012) (following repeal, re-codified at 43 Tex. Admin. Code § 215.207 (Texas Dep’t of Motor Vehicles, Contested Cases; Final Orders); 38 Tex. Reg. 9215, 9215, 9217, 9227-28 (2013), adopted by 39 Tex. Reg. 1728, 1728, 1730 (2014) (codified as amendment to 43 Tex. Admin. Code § 215.207 (Texas Dep’t of Motor Vehicles, Contested Cases; Final Orders). As Keystone points out, this rule has remained in effect through the present day—thereby implicitly contradicting the Department's current jurisdictional challenge—although the Department has asked us to take judicial notice of recendy proposed amendments that would eliminate the rule’s reference to direct review by this Court. See 41 Tex. Reg. 7054, 7056-57 (2016) (to be codified at 43 Tex. Admin. Code § 215.207(f) (proposed Aug. 26, 2016) (Texas Dep’t of Motor Vehicles, Contested Cases: Final Orders). Regardless of this rule’s state or version, it has no direct bearing on the scope of our jurisdiction under Section 2301.751(a). See, e.g., Bacon, 411 S.W.3d at 173 (emphasizing that Legislature is "gatekeeper" controlling when and how sovereign immunity is waived). Keystone suggests, however, that we should defer to the existing Rule 215.207(b)(8) as a reasonable construction that is not inconsistent with current Chapter 2301, which it characterizes as "ambiguous” as to whether a Lemon Law final order can be reviewed under Section 2301.751(a) versus Section 2301.609, Sub-chapter M's internal judicial-review provision. See, e.g., TGS-NOPEC, 340 S.W.3d at 438 (“If there is vagueness, ambiguity, or room for policy determinations in a statute or regulation ... we normally defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the language of the statute, regulation, or rule.”). Leaving aside whether this is an accurate perception of Rule 215.207(b)(8)’s origins and purposes, we question whether such deference is permitted or appropriate when addressing the scope and meaning of immunity waivers, as the governing principles there require us instead to insist on "clear and unambiguous” expressions of intent to waive immunity and a corre
. Act of May 24, 2013, 83d Leg., R.S, ch. 1379, 2013 Tex. Gen. Laws 3666.
. Id. §§ 13, 15, 2013 Tex. Gen. Laws at 3668.
. Id. § 12, 2013 Tex. Gen. Laws at 3668.
. Id. § 9, sec. 2301.704, 2013 Tex. Gen. Laws at 3667-68.
. See Tex. Occ. Code § 2301.704.
. See id. § 2301.709.
. See id. § 2301.204.
. Act of May 24, 2013, § 9, sec. 2301.704(a-1), (b), 2013 Tex. Gen. Laws at 3667-68 (codified as amended at Tex. Occ. Code § 2301.704(a-l), (b)).
. Id. § 9, sec. 2301.704, 2013 Tex. Gen. Laws at 3668 (codified as amended at Tex. Occ. Code § 2301.704(c)). "Contested case” for purposes of Subchapter O “has the meaning assigned by Section 2001.003, Government Code,” Tex. Occ. Code § 2301.701, i.e., the Administrative Procedure Act definition of “a proceeding ... in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity
. Act of May 24, 2013, § 1,' sec. 2301.002(17-a), 2013 Tex. Gen, Laws at 3666 (codified as amended at Tex. Occ. Code § 2301.002(17-a)).
. Id. § 2, sec. 2301.104, 2013 Tex. Gen, Laws at 3666 (codified as amended at Tex. Occ. Code § 2301.104).
. Id. § 3 (amending Section 2301.606(b) and (c)), § 4 (amending Section 2301.607(c)), § 5 (amending Section 2301.608), § 6 (amending Section 2301.609(a)), 2013 Tex. Gen. Laws at 3666-67.
. 43 Tex. Admin. Code § 215.55.
. Act of May 26, 2013, 83d Leg., R.S., ch, 1135, 2013 Tex. Gen. Laws 2705.
. See id. § 144, 2013 Tex. Gen. Laws at 2737.
. See id. § 140(1), 2013 Tex. Gen. Laws at 2736.
. Id. § 31, sec. 2301.751(a), 2013 Tex. Gen. Laws at 2711 (codified as amended at Tex. Occ. Code § 2301.751(a)).
. See Tex. Occ. Code § 2301.154. Authorizations identical to Subsections (b), (c), and (d) of Section 2301.154 are also found in the Department’s organic statute. See Tex. Transp. Code § 1003.005.
. See Tex. Occ. Code § 2301.002(13) (" ‘Executive director’ means the executive director of the department”); Tex. Transp. Code § 1001.0411 (requiring board to appoint executive director, who “shall perform all duties assigned by the board”).
. See Tex. Occ. Code § 2301.002(10), (12). As will be discussed below, this and other references to Department “divisions” within Section 2301.154 correspond to a statutory duty on the part of the executive director to "organize the department into divisions to accomplish the department’s functions and the duties assigned to the department.” Tex. Transp. Code § 1001.004.
. Tex. Occ. Code § 2301.154(b). Subsection (a) of Section 2301.154 also confers authority on "the director” to “delegate any of the director’s powers to one or more of the division’s employees.” I'd. § 2301.154(a).
. Id. § 2301.154(c).
. Act of May 26, 2013, § 7, sec. 2301.154, 2013 Tex. Gen. Laws at 2707 (codified at Tex. Occ. Code § 2301.154(e)). The Legislature did not make a similar change to the parallel provisions in Chapter 1003 of the Transportation Code. Cf. Tex. Transp. Code § 1003.005.
. Act of May 26, 2013, § 26 (amending Tex. Occ, Code § 2301.709), § 27 (amending Tex. Occ. Code § 2301.710), § 28 (amending Tex. Occ. Code § 2301.711), § 29 (amending Tex. Occ. Code § 2301.712(b)), 2013 Tex. Gen. Laws at 2710-11.
. Id. § 19 (amending Tex. Occ. Code § 2301.606(b) & (c)), § 20 (amending Tex. Occ. Code § 2301.607(c)), § 21 (amending Tex. Occ. Code § 2301.608), 2013 Tex. Gen, Laws at 2709,
.Compare Act of May 24, 2013, § 3 (amending Section 2301.606(c) ("An order issued under this subchapter ... ”)), § 4 (amending Section 2301.607(c) ("If a final order is not issued ...")), § 5 (amending Section 2301.608(a) ("An order issued under this sub-chapter ... ”)), 2013 Tex. Gen. Laws at 3666-67, with Act of May 26, 2013, § 19 (amending Tex. Occ. Code § 2301.606(c) ("The board or a person delegated power from the board under Section 2301.154 ...”)), § 20 (amending Tex. Occ. Code § 2301.607(c) ("The board or a person delegated power from the board under Section 2301.154 ...")), § 21 (amending Tex. Occ. Code § 2301.608(a), (b) ("[T]he board or a person delegated power from the board under Section 2301.154 ...")), 2013 Tex. Gen. Laws at 2709.
. Under this view, it would follow that Sandoval had authority as Chief Hearings Examiner to decide Keystone's motion for rehearing, by virtue of an additional amendment made to Subchapter O by H.B. 1692. Act of May 24, 2013, § 10 (codified at Tex. Occ. Code § 2301.713(c) ("A motion for rehearing in a contested case under Section 2301.204 or Subchapter M must be filed with and decided by the chief hearings examiner.”)).
. Tex. Occ. Code § 2301.704(c) (emphasis added).
. Id. § 2301.154(c).
. Id. § 2301.710 (emphasis added).
. We note that Section 2301.154(c)’s delegation of authority to issue a final order "in a contested case hearing" is parallel to the phrasing in amended Section 2301.704 that Keystone views as excluding authority to dismiss a complaint prior to the actual hearing. See id. § 2301.704(c) (emphasis added). Consequently, Keystone’s construction of amended Section 2301.704 would imply that a delegation of final-order authority under Section 2301.154(c) does not extend to pre-hearing dispositions, and therefore would not alone authorize Sandoval to issue the dismissal order. Keystone could conceivably bridge such a gap by viewing Section 2301.710 as providing Sandoval, as a Section 2301.154(c) delegate of final-order authority in "a contested case hearing,” an additional delegation of authority to make pre-hearing dispositions. But if this is the relationship between Section 2301.154(c) and Section 2301.710, it would not be immediately clear that an order under Section 2301.710 would come within the all-important Section 2301.154(e), which deems an action to be "of the board” only if it is "taken by a person to whom a power or other authority is delegated under Subsection (b) or (c)." See id. § 2301.154(e) (emphasis added). (Subsection (b), again, authorizes delegations of "any power relating to a contested case hearing brought under this chapter ... other than the power to issue a final order." See id. § 2301.154(b) (emphasis added)). Precisely how Keystone reconciles these internal tensions in its jurisdictional arguments remains unclear, but that issue is ultimately not dis-positive.
. See id. §§ 2301.606(c), 607(c), 608(a)-(c), 709(a)-(c), 712(b).
. See Tex. Gov't Code § 311.025(a), (b). The date of enactment "is the date on which the last legislative vote is taken on the bill enacting the statute.” Id. § 311.025(d). The date of enactment of HB 1692 was May 24, 2013, the date on which the House of Representatives (which had passed the bill on May 2) concurred in amendments that had been made by the Senate when passing it on May 22. See Act of May 24, 2013, 2013 Tex. Gen. Laws at 3668. The date of enactment of H.B. 2741 was May 26, 2013, the date on which both the House and the Senate adopted a conference-
. Tex. Occ, Code § 2301.154(c).
. Id, § 2301.154(c)(3) (emphasis added).
. 43 Tex. Admin. Code § 215.58(a). A Subsection (b) to Rule 215.58, made applicable to “cases, under Occupations Code, § 2301.204 or [Subchapter M], filed prior to January 1, 2014,” similarly delegates more general final-order authority to “the director of the department division that regulates the distribution and sale of motor vehicles,” Id. § 215.58(b), eases covered by Subsection (b) are in turn excluded from the coverage of Subsection (a). Id. § 215.58(a) (made applicable “except as provided in subsection (b) of this section”).
If, as Keystone contends, Sandoval had been delegated final-order authority under Rule 215.58(a), Subsection (c) of Rule 215.58 would also have conferred on him authority to decide any motion for rehearing of his order. See id. § 215.58(c) ("In contested cases where the board has delegated final order authority under subsection (a) or (b) of this section, motions for rehearing shall be filed with and decided by the final order authority delegate.”).
. Which would create some additional tension with Keystone’s construction of "contested case hearing.” See supra note 62.
. Tex. Transp. Code § 1001.004.
. As an aside, an organizational chart posted on the Department’s public website depicts the Office of Administrative Hearings, headed by Sandoval, as one of approximately 15 boxes (the term "division” is not used) that is immediately subordinate to either the Department’s Executive Director or its Deputy Executive Director. See Texas Dep’t of Motor Vehicles Org. Chart, http://www.txdmv.gov/about-us (last visited Oct. 20, 2016). Other indicated boxes include "Civil Rights Office,” "Government [and] Strategic Communications,” “Enforcement,” "Motor Carrier,” and "Motor Vehicle.” See id.
. 38 Tex. Reg. 6565, 6565-66 (2013), adopted by 39 Tex. Reg. 501, 501 (2014) (codified at 43 Tex. Admin. Code § 215.58 (Texas Dep't of Motor Vehicles, Delegation of Final Order Authority)),
. Again as an aside, the Department organizational chart reflects "Motor Vehicle" in a separate box from "Office of Administrative Hearings.” Further exploration of the website leads to a biography of Daniel Avitia, who "serves as the Director of the Motor Vehicle Division.” See Daniel Avitia Biography, http://
. 43 Tex. Admin. Code § 215.55 (Texas Dep’t of Motor Vehicles, Final Decision).
. See generally 38 Tex. Reg. 9215, 9215, 9216, 9222 (2013), adopted by 39 Tex. Reg. 1728, 1728, 1730 (2014) (codified as amendment to 43 Tex. Admin. Code § 215.55) (Texas Dep’t of Motor Vehicles, Final Decision); see also 34 Tex. Reg. 8239, 8239, 8253 (2009), adopted by 35 Tex. Reg. 883, 883-84 (2010) (originally codified at 43 Tex. Admin. Code § 215.55) (Texas Dep’t of Motor Vehicles, Final Decision).
.See, e.g., Bacon, 411 S.W.3d at 173 (quoting IT-Davy, 74 S.W.3d at 854 (quoting Tex. Gov’t Code § 311.034; York, 871 S.W.2d at 177)).
Reference
- Full Case Name
- KEYSTONE RV COMPANY v. TEXAS DEPARTMENT OF MOTOR VEHICLES
- Cited By
- 6 cases
- Status
- Published