Failure to file motion for rehearing in administrative appeal is a failure to exhaust administrative remedies says Austin Court of Appeals

 

Michael W. Lacey v. City of DeSoto, et al, 03-12-00122-CV (Tex. App. – Austin, March 14, 2014).

This is an appeal from a trial court order granting the City and (what was formerly designated as) TCLOSE’s plea and motion to dismiss in a license revocation challenge.

Lacy was a former law-enforcement officer who lost his TCLOSE license after being convicted of a Class B misdemeanor DWI. His employment with the City was then terminated. Lacy went through the administrative hearing process to challenge the suspension of his license. Afterwards, he filed his first suit.  TCLOSE filed a plea to the jurisdiction asserting he did not exhaust his administrative remedies since he did not file a motion for rehearing. The trial court granted the plea.  Lacy then field this second lawsuit and named the City as well as TCLOSE.  However, Lacy’s only requested relief was the same relief he sought in the first suit, which is the reversal of his suspension. The trial court granted the City’s motion to dismiss and TCLOSE’’s plea to the jurisdiction and Lacy appeals.

The court first went through the law regarding the administrative appeal process and noted that a motion for rehearing is one of the administrative remedies that a party must exhaust before seeking judicial review. It is a jurisdictional prerequisite. Lacy argues Section 2001.144(a)(4) to mean that the administrative order may not be signed later than the 20th day after it was rendered in order to be final. That is incorrect. The signature page on the administrative order states January 13, 2011 as does the text. That is the date of finality and starts the clock to file a motion for rehearing. As a result, his claims against TCLOSE are barred by not only res judicata but jurisdictional prerequisites as well. And since the only relief sought by Lacy is the reversal of his suspension, which does not involve anything the City has the authority to do, the trial court properly granted the City’s motion to dismiss.

If you would like to read this opinion click here. Panel: Justices Puryer, Pemberton, and Field.  Opinion by Justice Field. The attorneys listed for the City are Whitney Lee Wyatt and Joe G. Gorfida.  Lacy appeared pro se.  The attorney listed for TCLOSE is Raymond C. Winter.