### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00547- CV

Desi Dr iving S chool and Anil Agrawal , Appellan ts
v. Texas Edu cation Agency, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0156 9, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

M E M O R A N D U M O P I N I O N
Desi Driving School appea ls the trial court’s order g ranting the Texas Educa tion Ag ency ’s plea to the jurisdiction. Be cause Desi failed to exhaust its administrative reme dies befor e 1 filing its suit for judicial re view, we aff irm the trial cour

t’s order
. BACK GR OUND After conducting an investiga tion, TEA soug ht to revoke Desi’s driver- education school license. See Tex. Educ. Code § 1001.454 (re vocation of or place ment of conditions on school
or course provider license)
. A hear ing was held befor e the State Offic e of Administrative Hea ring s (SOAH), afte r which the administrativ e l aw j udg e issued a proposal for decision concluding that Desi had violated various statutes and rules and rec ommending that Desi’s license be revoke d.
Although Anil A g raw al appea rs as an appellant in the sty le of this case , TEA ruled in his 1 favor
. Although he was nominally listed as a petitioner in the trial court, he soug ht no relief there , and he se eks no re lief fr om this C ourt.TEA then issued a final order adopting the administrative law judge ’s finding s and revoking Desi’s

license. TE A mailed its April 12 order to Desi on April 14, 2011. Desi filed a motio n for rehe aring with SOAH, which SOAH rec eived on May 9, 2011. TEA rec eived a copy of the amende d motion for rehe aring on May 10, 2011. Desi filed its petition for judicial revie w on May 25, 2011, befor e TEA acte d on its mot ion for re hear ing a nd befor e the
mo ti o n f o r r e h e a r in g w o u ld h a

v e b e e n o v e r

r u le d b y o p e r a

ti o n o f la w . T e x. G o v ’ t Co d e § 2 0 0 1
. 1 4 6 ( c ) (providing that ag ency has 45 day s from date aff ecte d party rec eives notice of ruling in which to act on motion for rehe aring

or it is overruled by

opera tion of law). 2 TEA filed a plea to the jurisdiction, arg uing that the trial court lacke d jurisdiction for two independe nt rea sons: (1) Desi prema turely filed i ts suit for judicial revie w befor e TEA ruled
on its motion for rehe aring and (2) Desi filed its motion for rehe aring with SOAH rathe r than with the Commi ssioner of TEA. The trial court g rante d TEA’s plea to the jurisdiction without specify ing the g rounds for its dec ision. This appeal followed.
DISCUSSIO N I n one issue, Desi arg ues that the trial court had jurisdiction over its suit for judicial revie w and there fore err ed in g ranting TEA’s plea to the jurisdiction. Be cause Desi failed to exhaust its administ rative r emedies be fore filing its petition for judicial re view, we disag ree .

There is no dispute that the Texas Administrative Procedur e Act’s (APA) contestedcase and judicial-re view proce dures apply to the lic e n s e r e v ocation proce eding s broug ht ag ainst Desi

Desi’s mot ion for rehea

ring was ultimately

overr uled by opera tion of law, but afte r De si 2 filed suit in dist rict cour

t. See Tex. Gov’t Code § 2001.146(c)
.

2in th is c a s e . T e x. G o v ’ t Co d e § 2 0 0 1
. 0 5 4 ( a ) ; M a r b le F a ll s I n d e p . S c h

. D is t. v . S

c o tt , 2 7 5 S. W. 3 d 5 5 8 , 566-67 (Tex. App.—Austin 2008, pet. denied) (“U nless otherwise provided, the APA’s contestedcase and judicial-re view proce dures apply to ag ency -g overne d proce eding s.”); see Tex. Educ. Code §§ 1001.459-.060 (r ight to hea ring ), 1001.461 (r ight to judicial re view under substantial-evidenc e standard)
. To seek judicial revie w in a contested administrative case g overne d by the APA, a party must be “ag g rieve d by a final decision” and must h av e “exhausted all administrative reme dies available .” Tex. Gov’t Code § 2001.171. When a motion for rehe aring is timely filed, an ag ency ’s decision is not final until the date the motion for rehe aring is overr uled, either by order or by opera tion of law. Id. § 2001.144(a) (2)( A); see also id
. § 2001.145(b) (dec ision that become s final upon expiration of time for rehe aring when no motion for rehe aring is filed is not appea lable). This Court has previously

held that filing a motion for re hear ing a nd waiting for a final decision on the motion are jurisdictional prer equisites to seeking judicial revie w in a purely adm inistrative case , like this o n e. Marble Falls Indep. Sch. Dist. , 275 S.W .3d at 566-67 (citing Lindsay v. Sterling , 690 S.W .2d 560, 563 (Tex. 1985) (holding that petition for judicial revie w filed in trial court befor e ag ency ruled on motion for re hear ing did not invoke tria l court’s jurisdiction)). Desi filed its petition for judicial revie w befor e the Commi ssioner of Educa tion ruled
on its motion for rehe aring and befor e the motion wa s overr uled by opera tion of law. I n doing so, i t fa i led t o satisfy a jurisdi ctional prerequisite t o seeking judicial revie w of the age ncy ’s decisio n . See id. ; see also Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 446 n.9 (Tex. 1993) (subject- matter jurisdiction deter mined at time suit is filed in trial court). On appea l, Desi does not contest its prema ture fi l i ng in the trial court; instead, Desi focuse s on the sufficie ncy of the

3alleg ations made in its motion for rehe aring
. Desi misses the point. By filing its petition for revie w

in the trial court befor e any action was taken on its motion for rehe aring , i.e., befor e TEA’s decision
was final, Desi failed to exhaust its administrative reme dies, reg ardle ss of whether the content of its motion for rehe aring was sufficie nt. As a re sult, the trial court lacke d jurisdiction ove r Desi’s suit for judicial r eview a

nd proper ly g rante d TEA’s plea to the jurisdiction. W e over rule De si’s issue.
CONCLUSION Having overr

uled Desi’s sole issue on appea l, we aff irm t h e t ri al court’s order g ranting TEA’s plea

to the jurisdiction.

__________________________________________

Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Mar ch 14, 2014

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