### 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. 03-16-00236- CV

8 Mile P ark, L.P., A ppellan t

v.
Texas Com m ission on En vironm ental Quali ty, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 4-0 0544 3, H ONO RAB LE GISELA D. TRI ANA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

On October 8, 2014, appellee the Texas Commi ssion on E n v i ronm ental Quality
rende red a final defa

ult order assessing administrative penalties ag ainst appellant 8 Mile Park, L .P.
The order wa s m ai l ed t o 8 Mile by cer tified mail, return rec eipt reque sted, on October 14. On
November 6, 8 Mile filed a motion for rehe aring of the defa ult order , asser

ting that the motion was timely filed beca

use the order was sent on October 14 and 8 Mile was presumed to have rec eived the
order three day s later under the Administrative Procedur e Act [“APA”]. See Act of April 16, 1999,
76th L eg ., R. S

. , ch

. 18, § 1, 1999 Tex. Gen. L aws 35, 35, amende d by Act of May 22, 2015, 84th

L eg ., R.S., ch. 625, § 4, 2015 Tex. Gen. L aws 2058, 2059 [“former Tex. Gov’t Code § 2001.142(c) ”

or “for mer section 2001.142(c) ”]. On November 10, 8 Mile filed an “Unoppose d Not Objecte d to
Motion for Ex tension of Tim e” to file an amende d or suppl emental m o t i o n fo r rehe aring , and the
Commi ssion sent a letter on November 25 purporting to g rant the motion and to extend the timefor f

iling an amende d supplemental motion for rehe aring to N ovember 24. After

the Commiss ion
informed 8 Mile that the motion for rehe aring had b ee n o v er ru l ed, 8 Mile filed suit for judicial
revie w. The Commi ssion has filed a motion to dismiss , arg uing for the first time that the trial court 1
lacke d jurisdiction over the suit because 8 Mile’s November 6 motion for rehea ring was filed one day afte r the deadline ran. Be cause we ag ree , we vacate the trial court’s final judgme nt and dismiss
the under ly ing pr ocee ding f or wa nt of jurisdiction.

Discussion
An appea l from an administrative proce eding is not a matter of rig ht but instead must
be g rante d by statute. Jones v. S tate Bd. of Educator Certification , 315 S.W .3d 237, 243 (Tex. App.—Austin 2010, pet. denied); Texas Alcoholic Beve rage Comm’n v. Sfair , 786 S.W .2d 26, 27 (Tex. App.—San Ant o nio 1990, writ denied)

. A party seeking to appea l an administrative order

must strictly comply with the statute that authorizes the appea l. Jones , 315 S.W .3d at 243. As we
said in Jones , “we note the importance of construing the APA to allow parties to rely on the finality
of ag ency decisions,” and “‘[w]it hout a mandatory adher ence to the time l imits specifie d in the [AP A], the finality of ad m i n i s trative ag ency decisions would be uncer tain and not in the public
interest.’” Id

. (quoting Houston Mobilfone, Inc. v. Public Util. Comm’n , 565 S.W .2d 323, 327 (Tex. Civ. App.—Eastland 1978, no writ)).

Subject matter jurisdiction may be raised f or the fir st tim e on appe al. City of Houston v. 1 Rhule , 417 S.W .3d 440, 442 (Tex. 2013). The jurisdictional question posed here does not implicate the merits of 8 Mile’s case , and we there fore will decide the issue based on the undisputed fac ts a s established by the rec ord. See Univer s i t y of Tex. v. Poindexte r , 306 S.W .3d 798, 807-08 (Tex. App.—Austin 2009, no pet.).
2I n an administrative proce eding , a timely motion for rehe ari n g i s g ener ally a

jurisdictional prer equisite to an appea l. See Tex. Gov’t Code § 2001.145; Marble Falls Indep. Sch.

Dist. v. Scott , 275 S.W .3d 5 5 8 , 5 6 5 (T ex
. App.—Austin 2008, pet. denied)

. A decision in a
contested case is final “on the expiration of the period for filing a motion for rehe aring ” if a motion
for rehe aring is not timely filed. Tex. Gov’t Code § 2001.144(a) (1); Scott , 275 S.W .3d at 565 (orde r
is final “whe n the time to file a motion for rehe aring expires without a motion being fi l ed ”)

. “B eca use a party is require d to exhaust all available administrative reme dies befor e seeking judicial
revie w, the APA must be construed in a manner that allows litigants to clea rly rec og nize when those

reme dies have been exhausted.” Jones , 315 S.W .3d at 243. At the time in question, a motion for
rehe aring was due twenty day s afte r 8 Mile was notified of the order

. See Act of May 4, 1993, 73rd

L eg ., R.S., ch. 268, § 1, 1993 Tex. Gen. L aws 583, 748, amende d by Act of May 22, 2015, 84th L eg ., R.S., ch. 625, § 9, 2015 Tex. Gen. L aws at 2060-61 [ “ former Tex. Gov’t Code § 2001.146(a )” or
“for mer section 2001.146(a) ”]; City of Jack sboro v. Two Bush Cmty. Action Grp. , No. 03-10-00860- CV, 2012 WL 2509804, at *3 (Te x . App.—Austin J une 28, 2012, pet. de nied) (me m. op.).

The Commi ssion’s final defa ult order was date d O c to b e r 8 , 2 014, notice of and a copy
of the order was mailed to 8 Mile on October 14, and 8 Mile filed its motion for rehe ar ing on 2

I n its reply to the Commi ssion’s motion to dismiss , 8 Mile states that the Commi ssion has 2 not p ro v ed that it mailed the defa ult order on October 14. Howeve r, in its motion for rehe aring , 8 Mile repe atedly ref

err ed to the Commi ssion’s letter notify ing 8 Mile of the defa ult order as being dated October 14, and in its motion for extension of time filed befor e the Commi ssion on November 18, 8 Mile stated, “Oc tober 8, 2014 is the date of the Commi ssion’s [Order] with responde nt being notified by cer

tified mail dated October 14, 2014 pursuant to 30 TAC §2.71(b) ‘ presumption to have been notified on the third day after the date of that decision or order is mailed... [si c]

. ’” I n its letter purporting to extend 8 Mile’s deadline for filing an amende d or supplemental motion for rehe aring , dated November 25, the Commi ssion stated that it mailed notice of the defa ult order on October 14.
3November 6. The only question to be answe red in evalua ting the Commi ssion’s motion to dismiss

is whether the rec ord shows that 8 Mile rec eived notice of the final order on October 16 or whether , under f ormer se ction 2001.142(c) , 8 Mile is presumed to have rec eived notice on October 17. 3
The administrative rec ord introduced befor e the trial court includes a cer tification

sworn to by the C ommissi on’s custodi an of rec ords, who cer tified that the record was “a t ru e and

corr ect copy of the administrativ e re co rd ” and that “[t] he rec ords attache d here to are the exact duplicates of the orig inal.” Our resolution of the issue is based on Ex hibit 37 of the administrative

rec ord, which consists of the October 8 order ; a cover letter addre ssed to Ronald Finkelman, 8 Mile’s president, and dated October 14, 2014, which states, “ Enclosed is a c opy of an or der issued by

the
Commi ssion,” and states that it was sent by cer tified mail; a copy of a cer tified mail rec eipt, showing

a mailing was sent to 8 Mile; and a copy of the signe d “g ree n car d,” which ref lects the Commi ssion’s

And finally , in its petition for judicial revie w, 8 Mile stated that it was “notified by mail on the third d ay afte r which the date on which the notice was mailed.” 8 Mile never disputed below that the Commi ssion did in fac t mail the defa ult order on October 14, and the rec ord establishes October 14 as the da te of mailing

. Simi larly , 8 Mile asser

ts tha t the rec ord does not pr ove that it filed its motion for rehe aring on November

6, 2014, but numerous documents in the admini strative record state that the motion for rehe aring was filed on November 6. For example, attache d to 8 Mile’s Motion To Supplement
a n d /o r M o d if y th e E xis ti n g M o ti o n f

o r Re h e a r in g ” w a s a

n a f f id a v it f r o m it s a u th o r iz e d r e p r e s e n ta

ti v e , who stated that he had draf ted and prepa

red the “motion to supplement or amend [8 Mile]’s Motion for Rehea ring Filed November 6, 2014,” and that he suffe red a power outag e on November 6, which resulted in the om ission of appendices from the m otion for rehea ring

. The recor d establishes that 8 Mile filed its moti on for r ehea ring on November

6, 2014.
I f the rec ord establishes that 8 Mile actua lly rec eived notice of the order on October 16, the 3 three -day presumption g rante d by former section 2001.142(c) disappea rs. See City of

Jack sboro v. Tw o B u s h Cm ty

. A c ti o n G r p

. , N o
. 0 3

- 1 0

- 0 0 8 6 0

- CV , 2 0 1 2 WL 2 5 0 9 8 0 4 , a t * 4 n
. 1 ( T e x. A

p p
. — A u s ti n Ju n e 2 8 , 2 0 1 2 , p e t. d e n ie d ) ( me m. o p
. ) ( q u o ti n g Te m

p le I n d e p

. S c h

. D is t. v

. E

n g li s h , 8 9 6 S. W. 2 d 1 6 7 , 169 (Tex. 1995)).
4docket number and 8 Mile’s permit number and shows the mailing was rec eived at 8 Mile’s addre ss

by “R Ramos” on October 16, 2014. The certified m ail rec eipt and the signe d g ree n car d are part
and parc el of the defa

ult order sent to 8 Mile, and thus the administrative rec ord shows that the order
was sent to 8 Mile on Oc tober 14 a nd rec eived on Oc tober 16.
8 Mile asser

ts that Ex hibit 37 shows only rec eipt o f “a n u n identified document
from an unidentified person that alleg edly was rec eived by the person who signe d the cer tified mail

rec eipt on the date stated in the ce rt i fi ed mail rec eipt.” Howeve r, the applicable rules or statutes
do not require that an adm i n i s t ra t i v e order specify the cer tified mail number used, and 8 Mile’s

arg ument would require us to imply a proce dural irreg ularity or some failing on the Commi ssion’s
part resulting in the err oneous attaching to the exhibi t cer tified mail rec eipts that did not belong with
the final orde r. 8 Mile would bear the burden of alleg ing and showing some likelihood of such an

err or, see In re Edwards Aquifer Auth. , 217 S.W .3d 581, 589 (Tex. App.—San Antonio 2006, orig

. 4

proce eding ) (althoug h revie wing court may admit new evidenc e rela ted to proce dural irreg ularities,

rea l parties in interest “do not arg ue, and the re co rd does not show” that such provision would

ap p ly ), and we will not assume that the administrative rec ord contains err ors based on 8 Mile’s

The APA allows a revie wing co u rt t o ad mit and consider evidenc e outside of the 4 administrative rec ord if there are alleg ations that proce dural irreg ularities occur red in the administrative proce eding

. See Tex. Gov’t Cod e § 2001.175(e) ; Gomez v. Texas Educ. Agenc y , 354 S.W .3d 905, 9 1 8 -1 9 (T ex. App.—Austin 2011, pet. denied) ; In re Edwards Aquifer Auth. , 217 S.W .3d 581, 589 (Tex. App.—San Antonio 2006, orig

. proce eding ); see also Hawkins v. State , 89 S

. W

. 3 d 6 7 4 , 678-79 (Tex. App.—Houston [1st Dist.] 2002, pet. ref ’d) (stating in context of
cer tification of penitentiary packe t that courts apply “pre sumption o f reg ularity of g overnme ntal aff airs” “ beca

use public off

icials have a disincentive to fa lsify documents or other

wise violate the law in the course of their dut ies”). 8 Mile has not made such asser tions, nor does an y

t h i n g i n t h e rec o rd raise the specte r of irreg ularities in the mailing of the final order or in the Commi ssion’s
rec ord-ke eping rela ted to that mailing.
5bare asser

tions that the administrative rec ord contains “an alleg ed copy of a cer tified mail rec eipt
for an unidentified document from an unidentified person that alleg edly was rec eived by the person
who signe d the cer t i fi ed mail rec eipt on the date stated in the cer tified mail rec eipt” and does not

prove “that the TCEQ mailed the subject defa ult order to 8 Mile Park on October 14, 2014; (2) that
8 Mile Park rec eived the notice of the subject defa ult or der on October 16, 2014, or (3) that 8 Mile
Park filed its motion for rehe aring on November 6, 2014.”

Conclusion
“I f a party does n o t t i m el y file a motion for rehe aring , the trial court lacks subject-matter jurisdiction over a suit for judicial revie w of the ag ency ’s decision.” Two Bush Cmty.
Action Grp. , 2012 WL 2509804, at *3. The administrative rec ord ref lects that the order was sent by

cer tified mail on Oc tober 14 and was signe d for by someone at 8 Mile’s addre ss on October 16.
There fore , 8 Mile’s motion for rehe aring was due on November 5. S ee former Tex. Gov’t Code § 2001.146(a)

. I ts untimely filing of its first motion for rehe aring on November 6 was not sufficie nt

to g rant the trial court jurisdiction over the suit for judicial revie w. See Two Bush Cmty. Action Grp. , 2012 WL 2509804, at *3; Scott , 275 S.W .3d at 565. Nor did the Commi ssion’s purported

g ranting of an ex tension of t ime to amend or supplement the m otion, a mot ion filed well afte r t he
deadline ran, opera te to g ive the trial court jurisdiction. See Two Bush Cmty. Action Grp. , 2012 WL

62509804, at *7. We have no choice but to vacate the trial court’s judgme nt and dismiss the 5 underly ing suit for

judicial revie w.

__________________________________________ David Pury ear , J ustice

Be fore J ustices Pury ear , Field, a nd Bour land

Vac ated a nd Dismissed Filed: Aug ust 31, 2016

8 M il e c it e s D e La G a r

z a v

. Te x a s D e p a r tm e n t o

f I n s u r a n c e a n d a s s e r ts th a t in th a t c a s e , w e 5 held “that the Commi ssioner of I nsuranc e
. . . was authorized to extend the deadline to file a motion f o r r e h e a r in g a f te r th e d e a d li n e to f

il e th e mo ti o n f

o r r e h e a r in g h a d p a s s e d

. ” S

e e N o
. 0 3

- 1 1

- 0 0 8 6 9

- CV , 2 015 WL 1285702 (Tex. App.—Austin Mar. 19, 2015, no pet.) (mem. op.). I n De La Garza , howeve r, the Depa

rtment itself asser

ted that the deadline for filing a motion for rehe aring “initially
was Dec ember 30, 2009, and then Fe bruar y 19, 2010, afte r the Depa

rtment g rante d him an extension by written order.” Id. at *2 (citations omitted). The De partment did not asser t that its gra

nting of the ex tension of t ime was unauthorized, and thu s t h e issue was not square ly befor e us. Howeve r, to the ex tent that De La Garza can be read as imply ing that a st ate ag ency may g rant a motion for extension of time that is filed afte r the deadline to file a motion for rehe aring has passed, we disavow such a c onclusion. See Two Bush C mty. Ac tion Grp. , 2012 WL 2509804, at *7 (“ I f the APA doe s not allow a part y to amend a motion for rehe aring afte r the filing deadline, then it follows that it would not allow an ag ency to g rant a reque st to extend the fil ing deadline that was made afte r t he deadline passed.” ); see also Ande rson v

. Railroad Comm’ n , 963 S.W .2d 217, (Tex. A pp.—Austin 199 8 , p et

. d en ied) (“The APA makes no provision for amending a motion for rehe aring afte r the filing deadline.” ); Snead v. Texas State Bd. of Med. Exam’rs , 753 S.W .2d 809, 811 (Tex. App.—Austin 1988, no writ) (under APTRA, f ormer version of APA; “ First, there is no provision in the Administrative Procedur e and Texas Reg ister Act permitting one to file an amende d motion for rehea ring

. Second, if an amended mot ion for re hear ing w ere permitted, § 16(e ) would re quire that it be filed within fiftee n day s after rendition of the f

inal ag ency

order .”).
7