Plaintiff failed to timely appeal administrative order so court has no jurisdiction to hear his constitutional claims

Jose A. Perez v. Physician Assistant Board and Margaret K Bentley, In her Individual and Official Capacities 03-16-00732-CV (Tex.App—- Austin, Texas October 31, 2017)

This is an appeal from the granting of a plea to the jurisdiction where the Austin Court of Appeals affirmed the order.

Perez was a physician’s assistant whose license was revoked by the Physician Assistant Board (“PAB”). Perez sued for a variety of convoluted claims (constitutional and common law) which the Austin Court of Appeals held equated to claims challenging the revocation. At the administrative level, Perez failed to appear at the contested case hearing after receiving notice. The ALJ issued an order against Perez. The PAB found the order meritorious and deemed the assertions in the order as true. Perez sued the PAB and its director, Bentley. The PAB defendants filed a plea to the jurisdiction which the trial court granted. Perez appealed.

Perez listed 36 issues on appeal, but the court considered only the uncontested facts asserted in the record and Perez’ pleadings. The substance of Perez’s pleaded claims against the Board—that the Board violated the United States and Texas constitutions and the APA—challenges and seeks relief from the 2014 revocation order. However, 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.  Perez had the potential for appeal, but a petition seeking judicial review in a contested case must be filed “not later than the 30th day after the date the decision. The record conclusively established Perez did not bring suit until 2016, well after the thirty-day deadline.  Further, the order is not subject to collateral attack as the PAB was acting within its authority. Factually, the substance of Perez’s claims against Bentley were limited to claims against Bentley in her official capacity, even though he asserts they are individual claims. Given that the 2014 order is final and not subject to judicial review, Bentley cannot be acting ultra vires and no prospective relief is available at this juncture. As a result, the trial court properly granted the plea.

If you want to read this opinion, click here. The panel consists of Justice Puryear Justices, Pemberton, and Goodwin. Justice Melissa Goodwin delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.