Opinion filed October 6, 2011



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 09

- 003 15

- C V

__________ KELVIN E. LOUIS , Appellant

V. OFFICE OF TEXAS ATTORNEY GENERAL CRIME VICTIMS ’ SERVICES DIVISION, Appellee

On Appeal from the 39th District Court Stonewall County, Texas Trial Court Cause No. 4486

O P I N I O N

The trial court found that Kelvin E. Loui s’s petition for judicial review of the attorney general’s decision to deny his claim as a crime victim was not timely filed. It therefore granted
the attorney g eneral’s plea t o the jurisdiction. We affirm.
After a known assailant shot him in the stomach with a shotgun , L ouis filed a claim for compensation as a crime victim pursuant to T EX

. C ODE C RIM

. P ROC

. A NN

. ch. 56, subch

. B (Vernon 2006 & Supp. 2010). After a hearing, t he attorney general denied Louis’s claim
, and on November 24, 2008 , it
issued its final d ecision. On December 22, 2008, Lou is filed a “notice of dissatisfact ion” as provided for in Article 56.48(a). On December 29, 2008, L ou is filed an amended “notice of
dissatisfaction.” On February 5, 2009, Lou i s filed his lawsuit seeking judicial review of the hearing officer’s decision; he filed an amended petition for j udicial review on April 15, 2009.2

The attorney general filed a plea to the jurisdiction in which it alleged that L ou is filed his
lawsuit forty

- five days after he filed his first notice of dissatisfaction and that
, under the applicable statute
, that was to o late. Therefore, it argued that the trial court did not have jurisdiction. The trial court agreed with the attorney general , granted the plea to th e jurisdiction
, and dismissed Lou is’s lawsuit

. I n h is appeal from that dismissal
, Louis presents us with two issues

. First
, he argues that
we should not consider an affidavit that the attorney general offered in support of its plea to the j urisdiction because it is conclusory. In his second issue, Louis maintains that the time limit for filing a suit for judicial review under A rticle 56.48(a) should be computed from the time that he
filed his amended notice of dissatisfaction, not from the date that he filed his first one. Because we believe that Louis’s second issue is dispositive of this appeal, we will discuss it first.
When the attorney general filed its plea to the jurisdiction, it challenged the trial court’s subject

- matter jurisdict ion. Without subject

- matter jurisdiction, a court has no auth ority to hear
and determine a case. Bland Independent School Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). The burden is upon a plaintiff to allege facts that affirmatively establish the tria l court’s subject

matter jurisdiction. Tex. Ass ’ n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993).
We review subject

- matter jurisdiction issue s de novo because they are question s of law

. Tex. Dep ’ t of Parks & Wildlife v. Miranda , 133 S. W.3d 217, 227 (Tex. 2004); Tarrant County v. McQuary , 310 S.W.3d 170, 172 (Tex. App.

— Fort Worth 2010, pet. denied). If the attorney general denies a crime victim ’ s compensation claim , the claimant may obtain judicial review of that decision. Article 56.48(a) provides in relevant part:

Not later than the 40 th day after the attorney general renders a final decision, a claimant or victim may file with the attorney general a notice of dissatisfaction with the decision. Not later than the 40 th day after t he claimant or victim gives notice, the claimant or victim shall bring suit in the dis trict court having jurisdiction.
The Texas Administrative Code contains similar language pertaining to these claims:
Not later than the 40 th day after the victim or cla imant gives the OAG notice of dissatisfaction with the OAG’ s final decision from the hearing, the victim or claimant has a right to bring suit in a district court having jurisdiction over the matter.

1 T EX

. A DMIN

. C ODE § 61.904 (b) (Office of the Att’y Gen ., Crime Victims’ Compensation)

.3

The attorney general’s position is that the 40

- day period within which the claimant is to file his lawsuit starts to run when he files his first notice of dissatisfaction. Louis, on the other hand, claims that a claimant may amend his notice of dissatisfaction as many times as he likes so long as he files th e amended notice s within forty day s after the attorney general enters a final
decision. Louis maintains that the 4 0

- day period within which a claimant is to file his lawsuit
does not begin to run until the claimant files his last amended notice of dissatisfaction. If the attorney general is correct, then Louis filed his petition for judicial review late. If Louis is correct, then he timely filed his lawsuit for judi cial review , and the trial court erred when it granted the attorney general’s plea to the jurisdiction. When we construe a statute, our primary goal is to ascertain and give effect to the intent
of the l egislature. City of Houston v . Jackson , 192 S.W.3d 764, 770 (Tex. 2006). I ssue s of statutory construction begin with an analysis of the statute. Cail v. Service Motors, Inc ., 660 S.W.2d 814, 815 (Tex. 1983). If the statute is clear and unambigu ous, it is inappropriate to employ extrinsic aids and rules of statutory construction. Ex parte Roloff , 510 S.W.2d 913 , 915 (Tex. 1974). We are to give the statute i ts common , everyday meaning. Cail
, 660 S.W.2d at 815 (citing Banks v. Chicago Grain Trimmers Assoc. , 390 U.S. 459, 465 (1968) )

. We also are to construe the statute based upon what it contains, not upon what it might have contained or upon what we would have had it to contain. See City of San Antonio v. Hartman , 201 S.W. 3 d 667, 673 (Tex. 2006) (court must construe a statute based upon what it says “not according to what we think it should have said”). Louis argues that
, by its use of the words “a notice of dissatisfaction
, ” the legislature did

not mean that a claimant may file only one notice of dissatisfaction

. We agree with Louis that
A rticle 56.48(a) does not expressly prohibit the filing of multiple notices of dissatisfaction

. However , the statute , by its plain language, does require that a claimant file his l awsuit for judicial review not later than forty days after he has give n his notice of dissatisfaction

. A
claimant g ives that notice when he originally files his notice of dissatisfaction

. Had the legislature intended to provide that the time within which to file a suit for judicial review was to be computed from the date of any amended notice of dissatisfacti on, it could easily have done
that

. See
, e.g. , Cameron v. Terrell & Garrett, Inc. , 618 S.W.2d 535, 540 (Tex. 1981) (had the legislature intended to place a certain restriction i n the Deceptive Trade Practices Act , it could

e asily have done so by drafting that provision into the Act).4

Louis relies upon Mainolfi v. Liberty Mut ual Ins urance Co. , 624 S.W.2d 746 (Tex. App.

— Houston [1 st Dist.] 1981, no writ)
, for the proposition that an amended notice extends the time for filing suit. That case is distinguishable. Mainolfi dealt with matters involving
claims under a now

- repealed workers ’ compensation statute. Under that law, a claimant was required to file a lawsuit to set aside a decision of the Industrial Accident Board within twenty day s after giving notice that he would not abide by a decision made by the Board . The claimant
in Mainolfi filed his lawsuit late. The court in Mainolfi referred to the appellee’s brief in that

case and , in dicta, agree d with assertions in the brief that there were several things that Mainolfi
could have done so that he would not have been late with his lawsuit, including filing a second “notice of nonabidance .” Mainolfi , 624 S.W.2d at 749. For the reasons behind our decision i n this case, w e decline t o follow the dicta in that case.
We hold that
, when a claimant files his initial notice of dissatisfaction, he has given
notice under the statute ; the 40

- day period within which he must file suit begins to run at that
time

. Here, that would have been December 22, 2008. Louis filed his lawsuit for judicial review

on February 5, 2009. Because that is a date more than forty days after Louis had given the attorney general his initial notice that he was dissatisfied with the dec ision, he did not timely file his lawsuit for j udicial review. The trial court did not err when it granted the attorney general’s plea to the jurisdiction; it correctly dismissed Louis’s lawsuit. Louis’s second issue on appeal is
overruled. Because we h ave overruled Louis’s second issue on appeal, we do not need to consider his first issue on appeal. See T EX

. R. A PP

. P. 47.1. We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

October 6, 2011
Panel consists of: Wr ight, C.J., McCall, J., and Hill, J. 1

1 John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.