### 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

ON REHEARING

NO. 03-11-00502- CV

Dee cye C layton Bedell, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GV-1 0-0 0122 6, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

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

We previously issued an opinion and judgme nt on J uly 6, 2012. On the Court’s own motion, we withdraw the opinion and judgme nt dated J uly 6, 2012, and s u b s t i t ute the following opinion and judgme nt.

Dee cy e Clay

ton Be dell bring s this interlocutory appea l from the trial court’s order g ranting the State’s plea to the jurisdiction as to Be dell’s counter claim for bill of revie w. He contends that the trial co urt err ed by implicitl y deny ing his challeng es to its jurisdiction on the State’s cl ai m aga i nst him and by g ranting the State’s plea to the jurisdiction reg arding his
counter claim. We will aff irm the trial court’s order g ranting the State’s plea to the jurisdiction and will dismiss for want of

jurisdiction Be dell’s complaints about the implicit denials of his challeng es to the jurisdiction of the court to conside r the State’s suit ag ainst him.BACK GR OUND On information that cer

tain oil and injection wells had not been timely plugg ed, the Commi ssion held a public hea ring in 2002 in which Be dell purportedly participa ted by

telephone. The Commi ssion direc ted Be dell to pay $ 2 8 , 000 for violations of safe ty and pollution-control require ments rela ted to wells and also order ed him to plug the wells. When he failed to comply , the State of Texas, “ac ting by and throug h the Attorney Gene ral of Texas, on behalf of the Railroad Commi ssion o f T ex as,” filed suit in 2010 to rec over the penalties assessed by the C ommissi on as well as a ttorney ’s fe es, cour t costs, and the State money spent to plug the wells. Be dell answe red that he is not liable in the capa city in w hich he is sue d, that he did
not execute the documents by which he was deeme d respon s ible for the wells, and that there is a defe ct of parties. He alleg ed that he did not rec eive notice of the administrative hear ing and did not authorize any one else to be his ag ent for service

. He asser ted that the Commi ssion’s order for pay ment and plugg ing was issued ag ainst him whe n he was not an oil and g as opera tor and did not

own or opera te t he relevant lease. I n response to the S tate’s moti on for summ ary judgme nt on its claims ag ainst Be dell, he asser ted that his fathe r (De ecy e Br uce Be dell) is the owner of the company and the ope rator of the lease and that “pe rsons who ar e not par ties to this proceeding [were] filing documents under [appellant’s] name, signing his name, and purporting to act a s his ag ent wit hout his knowledg e, permission, and consent.” Be dell filed a countercl ai m fo r b ill of revie w of the 1

I n his aff idavit, struck by the trial court as extrinsi c evidenc e supporting an impermissible 1 collater al attack, Be dell denied having notice of or participa ting by telephone in the Commi ssion’s hear ing a t which it assessed the a dminist rative a nd civil penalties. 2Commi ssion’s orig inal assessment of the penalties and costs, as well as a separ ate bill o f re view

action not cur

rently befor e this Court. The parties filed motions that reque sted dispositi on of some claims. The State filed a motion for par

tial summary

judgme nt seeking the Commiss ion’s awa rd of penalties and costs in

a judgme nt. I n response to Be dell’s counter claim, the State filed a plea to the jurisdiction urg ing that the t rial court lacke d jurisdiction over the counter claim because Bede ll had n o t demonstrated that the State had waived sovere ign immunit y fr o m a b i ll of revie w, beca use the counter claim was an impermissible collater al attack on a judg ment, and beca use Be dell had failed to join a party nece ssary to his counter claim. Be dell filed motions for summary judgme nt and to dismiss ag ainst the State’s claims, asser

ting in both that the Commi ssion never had jurisdiction over him beca use he was never the oper ator of the oil and g as lea se.

The trial court has g rante d some relief in this case . Whil e not expressly ruling on Be dell’s motions regard ing the State’s collection claim, the trial court g rante d the State’s Motion for Partial Summary J udg ment on its claims. I n rende ring that partial summary judgme nt, the court

aw a r d e d th e r e q

u e s te d a d minist rative penalties, civil penalties, and reimburse ment of plugg ing costs, but expressly decla

red that the order was not a final judgme nt and was not appea lable. I t conclude d that the State was entitled t o attorney ’s fee s but rese rved awa rding a specific amount until afte r “fina l trial.” The trial court also g rante d the State’s plea to the jurisdiction on Be dell’s bill-of-re view
counter claim without stating a basis. Be dell filed a notice of appe al from the Orde r on Plaintiff’s Plea to the J urisdiction on Def endant’ s Orig inal Counterclaim for Bill of Review

.

3DISCUSSIO N Be d el l raises two issues on appea l: (1) whether the trial court err ed in implicitl y deny ing his challeng es to the court’s jurisdiction over claims ag ainst him, (2) whether the trial court

err ed in g ranting the State’s plea to the jurisdiction on his counterclaim. I. Bedell’s challenge to jurisdiction of the claim s against h im We lack jurisdiction to consider Be dell’s first issue. Parties ty pically ma

y a p p e a l only from final order s or judgme nts. Jack B. Anglin Co. v. Tipps , 842 S

. W

. 2 d 2 6 6 , 2 72 (Tex. 1992). I nterlocutory order s are appea lable only if specific ally authorized by statute. Id. at 272. We strictly construe the statute permitting interlocutory appea ls. See Tex. Ci v. Prac. & Rem. Code § 51.014; see also Bally Total Fitness Corp. v. Jackson , 53 S.W .3d 352, 355 (Tex. 2001). There is no final trial-cour t order or judgme nt in the rec ord, and section 51.014 does not permit an i n t er l o cutory appea l from the denial of an individual’s motions asser ting that the trial court lacks jurisdiction over him in an ag ency ’s collec tion claims ag ainst him.

Be dell arg ues that our jurisdiction over the interlocutory appea l from the g rant of the State’s plea to the jur isdiction a g ainst his c ounterc laim enable s us to consider other jurisdictional 2 issues from the t rial court as well. Although we may consider jurisdictional challeng es for the first time on appea l, the case s he cites do not involve the statutorily limit ed interlocutory appea l. See Methodist Hosps. v. Texas W orkers’ Comp. Comm’n , 874 S.W .2d 144, 149 (Te x . Ap p.—Austin 1994, no writ); Pacific Emp’rs Ins. Co. v. Twelve Oa ks Me d. Ctr. , No. 03-08-00059, 2010 WL

A person may appea l from an interlocutory order that “g rants or den i es a p l ea to the 2 jurisdiction by

a g overnme ntal unit.” Tex. Ci v. Prac. & Rem. Code § 51.014(a) (8). 41511753 (Tex. App.—Austin Apr. 16, 2010, no pet.) (mem. op.). As the For t Worth court has written, “[a]n interlocutory order that is expli citly appea lable under section 51.014 may not be used

as a vehicle for ca rr y ing other nonappealable interlocutory order s to the appellate court.” Astoria Indus., Inc. v. SNF, Inc. , 223 S.W .3d 616, 627 n.24 (Tex. App.—For t Worth 2007, pet. denied)

. We lack the power t o co n s ider on interlocutory appea l any denial of Be dell’s motion to dismiss the State’s enf

orce ment action.

II. Th e State ’s plea to the j urisdi ction on the counterc laim

By contra st, we undisputedly have jurisdiction to revie w the g rant of the State’s plea
to the jur isdiction on Be dell’s bill-of-re view counter claim. See Tex. Civ. Prac. & Rem. Code § 51.014(a) (8). We stated in our orig inal opinion that we wer e “limited on interlocutory appea l to considering the issues raised at the trial court,” but the Texas Supreme Court has since deter mined 3 that appellate courts must consi d er sovere ign- immunit y claims made for the first time on appea l. See R usk State Hosp. v. Black , 392 S.W .3d 88, 95 n.3 (Tex. 2012). The r easoning of that opinion logic ally also applies to arg uments raised afte r issuance of our opinion and judgme nt. See id. at 94- 95 (cour ts must consider sovere ign- immunit y arg uments whene ver raised beca use opinions issued without jurisdiction are im p ro p er advisory opinions); see also Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 225-26 (Te x . 2004).

A unit of state g overnme nt is immune from suit and liability unless the state consents. Tex. Dep’ t of T

r a n s p . v. Jo n es , 8 S.W .3d 636, 638 (Tex. 1999). I mmunity from suit defe ats a

Citi ng Austin Indep. Sch. Dist. v. Lowery , 212 S.W .3d 827, 834 (Tex. App.—Austin 2006, 3 pet. denied) , overruled by Rusk State Hosp. v . Black , 392 S.W .3d 88, 95 n.3 (Tex. 2012). 5court’s subject-matter jurisdiction. Id

. I n a suit ag ainst a g overnme ntal unit, the plaintiff must

aff irmatively demonstrate the court’s jurisdiction by alleg ing a v al i d waiver of immunit y . See Texas Dep’ t of Criminal Justice v. Mi l l er , 51 S.W .3d 583, 587 (Tex. 2001); Texas Ass’n of Bus.

v. Texas Air Control Bd. , 852 S.W .2d 4 4 0 , 4 4 6 (T ex. 1993). We construe waiver s of sovere ign immunit y narr owly

. In re Smith , 333 S.W .3d 582, 587 (Tex. 2011). We reviewa cour

t’s ruling on a jurisdictional ple a de novo. Miranda , 133 S.W .3d
at 226. We construe the pleading s in favor of fi n d i n g j u ri s diction and, if nece ssary , revie w the

re cord for evidenc e supporting jurisdiction. Rusk , 392 S.W .3d at 96. I f the pleading s and p ro o f conclusively neg ate jurisdiction, we must aff irm the dismiss al. See id

. I f the pleading s and rec ord neither demonstrate jurisdiction nor conclusively neg ate it, then the State has the burden to show that either (1) Be dell failed to show jurisdicti o n despite having had a full and fair opportunity in the trial court to develop the rec ord and amend the pleading s; or (2) if such opportunity was not g iven, h e wo u l d b e unable to show the exis tence of jurisdiction even if g iven an opportunity through

re m an d

. See id. (citing Texas A & M Univ. Sys. v. Koseoglu , 233 S.W .3d 835, 840 (Tex. 2007)). I f the State shows that Be dell did not and cannot establish jurisdiction, then we can aff irm the dismiss al on this basis. See id.

Be dell filed a bill-of-re view counter claim in response to this enfor ceme nt action. He contends that the State waived sovere ign i m m u n ity by filing suit ag ainst him. Reata Constr. Corp. v. City of Dallas , 197 S.W .3d 371, 377 (Tex. 2 0 0 6 ). T h e State arg ues that Be dell has
not shown himself entitled to a bill of revie w and to any acc ompany ing waiver o f s overe ign immunit y . The S tate co n t en d s that, even if Be dell did not rec eive contemporane ous notice of the

62002 administrative proc eeding and order , he failed to a vail himself of the judicial revie w proc ess once he lear

ned of the order

in 2011. A bill of revie w is a

n equitable proce eding broug ht by a party seeking to set aside a prior judgme nt that is no longe r subject to c halleng e by a motion for new trial or appea l. Caldwell v. Barnes , 154 S.W .3d 93, 96 (Tex. 2004). A bil l of revie w is proper wher e a party has ex erc ised due di l i gence to prosec ute all adequa te leg al reme dies ag ainst a former judgme nt, and at the time the bill of revie w is filed, there rema ins no su ch ad eq u at e leg al reme dy still available beca use, throug h no fault of the bill’s proponent, fra ud, acc ident, or mistake prec ludes prese ntati o n o f a meritorious claim or defe nse. King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 751 (Tex. 2003). The require ment that a bill-of-re view plaintiff have g ood cause for failing to exhaust standard reme dies is, in this context, a statutory prer equisite to filing the b i l l o f re v i ew . S ee In re Estate of Taylor , 305 S.W .3d 829, 835 (Tex. App.—Texarkana 2010, no pet.) (citing W

embley Inv. Co. v. H

errera , 11 S.W .3d 924, 926–27 (Tex. 1999)). I f l eg al remedies were available but ignor ed, then relief by eq u i t ab le bill of revie w is not available

. Id. at 834 (citing W embley , 11 S.W .3d at 927)). The require ment that a party diligently pursue its lega l re medies is distinct from the discrete elements

nece ssary to establish entitlement to a bill of revie w. Id. (citing Perdue v. Patten Corp. , 142 S.W .3d 596, 606 (Tex. A

pp.—Austin 2004, no pet.)). A prer equisite to suit, whether administrative (such

as filing a char g e of discrimination) or proce dural (such as timely filing a lawsuit), is jurisdictional when the defe ndant is a g overnme ntal entity

. See Prairie View A & M Univ. v. Chatha , 381 S.W .3d 500, 515 (Tex. 2012); see also Tex. Gov’t Code § 311.034.

The Texas Natura l Resource s Code authorizes parties aff ecte d by the Commi ssion’s order to file a petition for judicial revie w pursuant to the Admi n i s t ra t ive Procedur es Act. See 7Tex. Nat Res. Code §§ 81.0533(e) (pena lty order s), 8 9

. 1 2 2 (plug g ing order s) (West 2011). The

APA require s that a party initiate a petition for revie w within thirty day s of the order becoming final. Tex. Gov’ t Code § 2001.176(a) (West 2008)

. Be dell contends that he did not seek judicial revie w in 2002 of the Commi ssion’s order because he was unawa re that the proce eding exis ted or that his responsibility had been alleg ed. Even if we assume for purposes of this revie w th at Be d ell’s 4

asser tion is true, that de lay

of notice did not entirely excuse him f rom seeking judicial revie w. “A notice problem only cre ates a differ ent starting date for the time to seek judicial revie w; it does not eliminate the require ment.” See HCA Healthcare Corp. v. Texas Dep’ t of Ins. , 303 S.W .3d 345, 352 5 (Tex. App.—Austin 2009, no pet.) (citing Commercial Life Ins. Co. v. State Bd. of Ins. , 774 S.W .2d 650, 651-52 (Tex. 1989)). As in HCA , any notice problem here was resolved arg uably no later than when Be dell lear

ned of the exis tence of the administrative order by rec eiving service of the petition

on Aug ust 31, 2010, and cer tainly no later than when he rec eived a copy of the administrative order

as an exhibi t in the appendix of the State’s Motion for Partial Summary J udg ment that was filed on April 29, 2011. He di d n o t file a petition for judicial revie w and did not file his bill-of-re view 6

Bed el l denies that he participa ted in the hear ing or in the actions and omissions that 4 prompted the hear ing. We e x press no opinion r eg arding the ver acity of B edell’s c laims. We trust that t h e Railroad Commi ssion and the Attorney Gene ral have taken or will take rea sonable and prudent steps to ensur e that they are pursuing the prope r par ty

. This tolling of the time for seeking judicial revie w distinguishes this ca s e from case s in 5 which the party bring ing a bill of revie w was not notified of the judgme nt and, there fore , is excused from showing due dil ige nce in pursuing appellate reme dies as i n Caldwell v. Barnes , 975 S.W .2d 535, 537 (Tex. 1998). The Stat e fi l ed a co py of the order as an appendix to its Motion for Partial Summary 6 J udg ment. The assistant attorney g ener al who fi l ed the m otion signe d a certifica te of service that a copy had been sent to Be dell’s attorney on April 29, 2011. “A cer tificate by a party or an attorney of rec ord, or the return of an office r, or the aff idavit of any person showing service of a notice shall 8counterclaim until J une 13, 2011. The undisputed rec ord shows that Be dell did n o t fi l e t h e

counter claim or any petition for judicial revie w within the thirty day s of rec eiving a copy of the administrative order

. Be dell has not shown sufficie nt g ood cause for failing to exhaust his judicialrevie w re medy

afte r re ceiving

notice of the order

. Be dell’s b il l- o f

- r e v ie w c o u

n te r c la im d id n o t invoke the nece ssary waiver of sovere ign immunit y . His failure to demonstrate timely exhaustion of t h e j u d i cial revie w reme dy takes his claim out side the s cope of the waiver of immunit y d es cr i b ed in Reata , a case that did not involve such additional require ments to pr operly invoke the jurisdiction of the trial court. See 197 S.W .3d at 377. We conclude that the t rial court did not err by g ranting the S t at e’ s p l ea to the j urisdiction reg arding his bill -of- revie w counter claim for w ant of jurisdiction.

CONCLUSION We affir m the Orde r on Plaintiff’s Plea to the J urisdiction on Defe ndant’s Or igina l Counterclaim for Bill of Review. We lack jurisdiction to otherwise opi n e o n an y action by the trial court. The case may resume in the trial court absent further action by t h e p ar t i es or by the Texas Supreme Court.

be prima fac ie evidenc e of the fac t of service

. Nothing here in shall prec lude any party from offe ring proof that the notice or instrument was not rec eived, or, i f s er v i ce was by mail, that it was not r ece ived within thre e day s from the da te of de posit in a post office or officia l de pository

. . . .” Tex. R. Civ. P. 21a. I n the absence of evidenc e to the contrary , the presumption of t imely rec eipt has the forc e of a rule of law. Clif f v. Huggi n s , 7 2 4 S

. W

. 2 d 7 7 8, 780 (Tex. 1987). There is no indication that Be dell offe red pr oof that he did not timely rec eive the Motion for Partial Summary J udg ment and its appendix. Be dell may have rec eived sufficie nt notice even ear lier when, as he stated in the aff i d avit attache d to his Def

endant’ s Second Amended Motion for Summary

J udg ment, his daug hter found some mention of the Railroad Commission procee dings in 2008. 9J eff Rose, J ustice Be fore J ustices Pury ear , Rose, and Goodwin Affir med on Rehea

ring Filed: June 5, 2013

10