Plaintiff established jurisdiction for suit against TxDMV Executive Director for ultra-vires actions
Whitney Brewster, et al v. Drew Roicki and Richard Roicki As Successors in Interest to Pinnacle Motors, 04-14-00414-CV (Tex. App. — San Antonio, May 13, 2015).
This case will be of more interest to litigators who deal with burden shifting in ultra-vires cases than to general counsel.
Brewster is the Executive Director of the Texas Department of Motor Vehicles. Pinnacle Motors applied for marketable titles for three vehicles through the Bexar County Tax Assessor-Collector (BCTAC). BCTAC issued title receipts for the vehicles and TxDMV issued titles. In 2009, TxDMV refused to issue a marketable title to a fourth vehicle because a “[t]itle was previously issued in Michigan and [the vehicle title was] branded as ‘scrap.’” In September 2009, TxDMV revoked the three titles it had issued earlier and noted the titles “should be branded as Nonrepairable.” Pinnacle then sued BCTAC, Bexar County and TxDMV for improper revocation of the titles and failure to issue the fourth. As part of a settlement with BCTAC it conditionally agreed to reissue “rebuilt salvage titles” as part of the appeal process. However, TxDMV still refused to issue marketable title. So, Pinnacle sued BCTAC, TxDMV and the executive director, Brewster for ultra vires acts. Brewster filed a plea to the jurisdiction, which was denied.
The court held TxDMV has discretion to either refuse to issue a title or revoke a previously issued title. On the other hand, Tex. Transp. Code §501.052 unambiguously authorizes “[a]n interested person aggrieved by a refusal, rescission, cancellation, suspension, or revocation under §501.051 [to] apply for a hearing to the county assessor-collector.” The county assessor-collector may determine whether TxDMV correctly revoked a vehicle title, and its “determination . . . is binding on the applicant and [TxDMV].” As a result, TxDMV is bound by the county assessor-collector’s appeal decision and had no discretion to disregard it. As a result, the majority held a fact question exists as to whether Brewster acted in an ultra-vires manner. Without addressing it specifically, the court seem to adopt a prevailing theory that even if the head of an entity does not personally perform actions, they are responsible for the actions of their subordinates and can be sued in their official capacity to prevent such actions.
However, the concurring opinion by Chief Justice Marion directly addressed the subordinate issue. As the Executive Director Brewster is responsible for requiring TxDMV to comply with Transportation Code section 501.052 and for requiring TxDMV to issue titles as required by law. The Plaintiffs alleged Brewster directed and controlled TxDMV to disregarding the appeal decision and Brewster presented no evidence to contradict the allegation or bring it into question. Brewster did not satisfy her burden under the burden shifting analysis. Further, given the statutory language, Pinnacle was able to establish that compliance with an appeal decision is ministerial, regardless of the discretionary nature of TxDMV’s original decision on title. As a result, she concurs with the majority but writes separately to emphasis her opinion Brewster did not meet her burden. She disagrees that a fact question actually exists.
If you would like to read the majority opinion click here. Concurring opinion by Chief Justice Marion click here. Panel: Chief Justice Marion, Justice Alvarez and Justice Chapa. Majority Opinion by Justice Alvarez. The attorneys listed for the Rochis are Christopher J. Deeves and Kenneth E. Grubb. The attorney listed for Brewster and TxDMV is Dennis M. McKinney.