      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                              ON MOTION FOR REHEARING



                                     NO. 03-07-00319-CV



              Robert Scott, in his official capacity as Commissioner of Education
                                for the State of Texas, Appellant

                                                v.

                                   Presidio I.S.D., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-GV-06-001362, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                              DISSENTING OPINION


                Reversing course on rehearing, a majority of this panel now concludes that the

consent requirement in subsection 21.307(a)(2) of the Texas Education Code is a jurisdictional

statutory prerequisite within the meaning of section 311.034 of the Texas Government Code that

requires Presidio to obtain the Commissioner’s consent before prosecuting an appeal from the

Commissioner’s administrative order in the Travis County District Court. The majority’s statutory

construction of subsection 21.307(a)(2) ignores the plain language of the statute, renders other

portions of the education code meaningless, leads to absurd results, and creates opportunities for

gamesmanship. Because I disagree with the majority’s interpretation of subsection 21.307(a)(2),

I respectfully dissent.
                For many years, Texas law recognized that statutory prerequisites were mandatory

and jurisdictional. See Mingus v. Wadley, 285 S.W. 1084 (Tex. 1926). Eight years ago, the Texas

Supreme Court overruled this longstanding precedent in favor of a new rule. See Dubai Petroleum

Inc. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). In Dubai Petroleum Inc. v. Kazi, the supreme court

determined that statutory prerequisites, while mandatory, were no longer jurisdictional. Id. at 76.

The court rejected the dichotomy between statutory and common-law causes of action established

in Mingus v. Wadley and its progeny on the ground that district courts in Texas were courts of

general jurisdiction. Id. at 75-76; see also Tex. Const. art. V, § 8. Under this rationale, a party’s

failure to satisfy a statutory prerequisite did not deprive the district court of jurisdiction to hear

the party’s claim but merely determined whether a party “established their right under the statute to

go forward with th[eir] suit.” Dubai, 12 S.W.3d at 75-76. The court explained, “‘The right of a

plaintiff to maintain a suit, while frequently treated as going to the question of jurisdiction, has been

said to go in reality to the right of the plaintiff to relief rather than to the jurisdiction of the court to

afford it.’” Id. at 76-77 (quoting 21 C.J.S. Courts § 16 at 23 (1990)).

                While this new rule proved workable in many cases, Dubai effected a sea change in

those areas of law involving suits against governmental entities, especially in administrative law.

See, e.g., Hill v. Board of Trs. of the Ret. Sys. of Tex., 40 S.W.3d 676, 678-79 (Tex. App.—Austin

2001, no pet.) (holding content of motion for rehearing no longer jurisdictional, but merely

established whether claim had been preserved); Sierra Club v. Texas Natural Res. Conservation

Comm’n, 26 S.W.3d 684, 688 (Tex. App.—Austin 2000) (holding plaintiff’s failure to comply with

service requirement was no longer jurisdictional), aff’d, 70 S.W.3d 809 (Tex. 2002); but cf. King



                                                     2
v. Texas Dep’t of Human Servs., 28 S.W.3d 27, 31 (Tex. App.—Austin 2000, no pet.) (assuming

without deciding that time limitations in Texas Commission on Human Rights Act are jurisdictional

even after Dubai); see also Tyler Johnson, Do Statutory Prerequisites Affect Jurisdiction to Hear

Administrative Appeals in Texas after Dubai?, 3 Tex. Tech J. Tex. Admin. L. 157 (2002) (discussing

Dubai’s effect on administrative appeals in Texas); Elizabeth R. Sterling, After Dubai, Are

Procedural Prerequisites to Judicial Review Still Jurisdictional?, State Bar of Texas: Twelfth

Annual Advanced Administrative Law Course (Oct. 26-27, 2000). One of the primary concerns was

how to reconcile the new rule established by the supreme court in Dubai with the doctrine of

sovereign immunity. See, e.g., King, 28 S.W.3d at 31. This doctrine provides that a party may not

sue the government unless the legislature has clearly and unambiguously consented to suit. Tooke

v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006). Moreover, it has long been recognized that a

state may be sued “only in the manner, place, and court or courts designated” by the legislature.

State v. Isbell, 94 S.W.2d 423, 424 (Tex. 1936). After Dubai, questions arose about how to construe

the many statutory requirements imposed by the legislature when it consented to suit, thereby

waiving its sovereign immunity. See Hill, 40 S.W.3d at 678-79; King, 28 S.W.3d at 31; Sierra Club,

26 S.W.3d at 688.

               Such requirements had long been considered jurisdictional under the rule established

in Mingus. See, e.g., Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 891-92 (Tex. 1986),

abrogated by Dubai Petroleum Inc. v. Kazi, 12 S.W.3d 71 (Tex. 2000). In an effort to resolve the

confusion and restore the Mingus rule for those suits against governmental entities, the legislature,

in 2005, amended section 311.034 of the Code Construction Act to include the following language:



                                                 3
        Statutory prerequisites to a suit, including the provision of notice, are jurisdictional
        requirements in all suits against a governmental entity.


Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783 (codified at

Tex. Gov’t Code Ann. § 311.034 (West Supp. 2007)).

                Thus, we are presented with two questions: (1) is subsection 21.307(a)(2) a statutory

prerequisite within the meaning of government code section 311.034; and, if the answer to this

question is “yes,” then (2) was the school district required to obtain the commissioner’s agreement

to file its suit for judicial review in Travis County? The majority now answers both of these

questions in the affirmative. But, even if one assumes for the sake of argument that the answer to

the first question is “yes,”1 I submit that the answer to the second question must still be “no.”


Was the school district required to obtain the Commissioner’s consent before filing its appeal in
Travis County?

                There is no dispute that section 21.307 clearly and unambiguously waives the state’s

sovereign immunity from suit by its express language that “[e]ither party may appeal the

commissioner’s decision . . . .” Tex. Educ. Code Ann. § 21.307(a) (West 2006). The dispute turns

on where a party may file an appeal. Subsection 21.307(a)(1) allows a party to file an appeal in “a

district court in the county in which the [school] district’s central administrative offices are located.”

Id. § 21.307(a)(1). Subsection 21.307(a)(2) allows a party to file an appeal “if agreed by all parties,


        1
           For purposes of this dissent, I assume without deciding that education code
subsection 21.307(a)(2) is a statutory prerequisite within the meaning of government code section
311.034. Nevertheless, in light of the fundamental rule that parties cannot confer subject-matter
jurisdiction by consent or agreement, see, e.g., Stine v. State, 908 S.W.2d 429, 431 (Tex. Crim. App.
1995); Moore v. Blagge, 38 S.W. 979, 984 (Tex. 1897), it is possible that it is not.

                                                    4
[in] a district court in Travis County.” Id. § 21.307(a)(2) (emphasis added). It is this clause, “if

agreed by all parties,” that has given rise to this appeal.

                The Commissioner urges that this clause “if agreed by all parties” includes the

Commissioner because subsection 21.307(c) requires the Commissioner to be made a party to the

appeal. See id. § 21.307(c). The school district counters that, when read in its proper context, this

clause does not include the Commissioner because the Commissioner would not appeal his own

decision. See id. § 21.307(a) (allowing either party to appeal the Commissioner’s decision).

                The majority correctly discerns that this is a matter of statutory construction, which

we review de novo. See Scott v. Presidio Indep. Sch. Dist., No. 03-07-00319-CV, ___ S.W.3d ___,

___, slip op. at 3, supra (Tex. App.—Austin 2008).              Beyond that, however, the majority

misconstrues the plain language of the statute and erroneously concludes that Presidio was required

to obtain the Commissioner’s consent before filing its suit for judicial review in Travis County.

                In its entirety, subsection 21.307(a) states:


        (a)     Either party may appeal the commissioner’s decision to:

                (1)     a district court in the county in which the district’s central
                        administrative offices are located; or

                (2)     if agreed by all parties, a district court in Travis County.


Tex. Educ. Code Ann. § 21.307(a). The plain language of this statute suggests that there are two

possible parties to the administrative proceedings before the Commissioner who may wish to appeal




                                                   5
the Commissioner’s decision—the teacher or the school district.2 Although the statute does not

define the term “party” or “parties,” nothing in the plain language of the statute suggests that the

Commissioner would be included in those terms, since the “party” would be appealing the

Commissioner’s decision, and the Commissioner presumably would not appeal his own decision.

When the legislature uses a word in a statute in one sense and with one meaning, and thereafter uses

the same word in describing the same subject matter, it is understood that the latter word is used in

the same sense and with the same meaning as the former. Brown v. Darden, 50 S.W.2d 261, 263

(Tex. 1932); see also Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 301 (Tex. App—Austin

2001, no pet.) (rejecting the Comptroller’s attempt to give different meanings to the same word in

two statutes on the same subject matter). This rule of statutory construction also applies when the

words or phrases are substantially the same. Brown, 50 S.W.2d at 263. Read in its proper context

with the introductory clause of subsection 21.307(a), the legislature’s use of the term “parties” in

subsection 21.307(a)(2) can only refer to those parties authorized to appeal the Commissioner’s

decision in the introductory clause of subsection 21.307(a). See id. For this reason, I would

conclude that the plain language of subsection 21.307(a) does not include the Commissioner within

the terms “party” or “parties” and, therefore, Presidio was not required to obtain the Commissioner’s

consent before filing its appeal in a Travis County district court.




       2
          It is conceivable that there might be more than two parties in the administrative
proceedings before the Commissioner. In some circumstances, there may be more than one teacher
who was subject to disciplinary proceedings before the school district and participated in an appeal
to the Commissioner.

                                                  6
               This construction is consistent with the remainder of section 21.307 and with

other provisions of the education code. While it is true that subsection 21.307(c) requires the

Commissioner to be made a party to an appeal of his decision, there is nothing in the language of

subsection 21.307(a) or (c) that requires the Commissioner to consent to filing an appeal in Travis

County. The mere fact that subsection (c) requires the Commissioner to be made a party to the

appeal does not suggest that the Commissioner must agree to the venue in which an appeal is filed.

Indeed, the prohibition against ex parte communications in section 21.306 of the education code

would appear to prohibit such an agreement between the Commissioner and any party who

participated in the administrative proceedings before the Commissioner. See Tex. Educ. Code Ann.

§ 21.306 (West 2006) (prohibiting ex parte communications between the commissioner and his staff

and any party). Although the majority asserts in footnote 4 of its opinion, supra, that the prohibition

against ex parte communications is limited to the context of administrative proceedings before

the Commissioner, nothing in section 21.306 limits the prohibition against ex parte communications

in the manner suggested by the majority. Sections 21.306 and 21.307 are both included in

subchapter G of chapter 21 of the education code. There is nothing in the plain language or structure

of the education code that supports the majority’s construction limiting the prohibition against

ex parte communications only to administrative proceedings before the Commissioner. See id.

§§ 21.306-.307. The majority’s conclusion that a party is required to obtain the Commissioner’s

consent to file an appeal in Travis County would render the prohibition against ex parte

communications in section 21.306 meaningless.




                                                  7
               Likewise, the majority’s interpretation of subsection 21.307(a)(2) leads to absurd

results and encourages gamesmanship. The supreme court has cautioned that courts should not

construe a statute in a manner that leads to absurd results when another, more reasonable

interpretation exists. National Plan Adm’rs, Inc. v. National Health Ins. Co., 235 S.W.3d 695, 701

(Tex. 2007); University of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 n.20

(Tex. 2004). Yet the majority does just that when it interprets subsection 21.307(a)(2) to require

Presidio to obtain the Commissioner’s consent before filing an appeal from the Commissioner’s

decision in Travis County. Nothing in the statute suggests a legislative intent to allow the

Commissioner to dictate where an appeal must be filed. See Tex. Educ. Code Ann. § 21.307(a).

Rather the plain language of the statute leaves that decision to the parties that participated in the

administrative proceedings before the Commissioner. Id.

               As a practical matter, for purposes of venue, the Commissioner—a statewide

official—resides in Travis County, the seat of state government. See Burton v. Rogers, 504 S.W.2d

404, 406 (Tex. 1973); Gulf Coast Bus. Forms, Inc. v. Texas Employment Comm’n, 498 S.W.2d

154, 154 (Tex. 1973) (per curiam). In addition, the Texas Attorney General, who represents the

Commissioner in the appeals brought under section 21.307, also resides in Travis County for

purposes of venue. See Burton, 504 S.W.2d at 406; Gulf Coast Bus. Forms, 498 S.W.2d at 154. As

the arbiter of the decision being appealed, the Commissioner should be indifferent to the venue in

which an appeal is filed.3 The majority’s construction of subsection 21.307(a)(2), however, leads




       3
          Counsel for the Commissioner conceded as much when counsel agreed with the district
court that the Commissioner “would virtually always agree to venue in Travis County.”

                                                 8
to the absurd result that the Commissioner, not the parties appealing his decision, can—and

should—dictate the venue of any appeal under section 21.307.

                Having waived sovereign immunity to allow a party to appeal from the

Commissioner’s decision, surely it is absurd to conclude that the legislature intended the

Commissioner, and not the appealing parties, to control where that appeal must be taken. The rule

in Texas is that the plaintiff—or the appealing party, in this instance—“gets the first choice of venue

by filing suit.” In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008); see also In re Masonite Corp.,

997 S.W.2d 194, 197 (Tex. 1999) (describing Texas venue law). By giving the parties to the

administrative proceedings the right to file suit against the Commissioner to challenge his decision,

the legislature acknowledged this general rule of Texas law and signaled its intent to let those parties,

not the Commissioner, determine venue. The majority ignores this general principle in favor of a

rule that gives the Commissioner authority to dictate where the appeal must be brought.

                The majority’s construction also encourages gamesmanship. In this case, the

Commissioner prefers the venue of Presidio County at a distance of almost 500 miles. As the

colloquy between counsel for the Commissioner and the district court below reveals, the

Commissioner does not want to consent to venue in Travis County in this case because “it provides

an opportunity to dismiss . . . [a]nd once it’s dismissed, it’s too late to bring [an appeal] in another

county.” Counsel’s stated rationale for this result is that “while the Commissioner might not object

to Travis County, the Commissioner likes to have h[is] decisions stand.” Thus, the Commissioner

concedes that, at least in this case, he has ulterior motives for denying his consent to bring an appeal

in Travis County. Having waived sovereign immunity to allow appeals from the Commissioner’s



                                                   9
decisions, it is unreasonable to conclude that the legislature intended for the Commissioner to

deprive a party from bringing an appeal simply by denying his consent to a particular venue.

                A more reasonable construction of the statute would be that the legislature

never intended to require an appealing party to obtain the Commissioner’s consent. A more

reasonable construction of the statute would allow the choice of where to file an appeal to be made

by those parties appealing the Commissioner’s decision, not the Commissioner. Because the

majority adopts what I believe to be an unreasonable and unworkable construction of the statute,

I respectfully dissent.




                                             __________________________________________

                                             Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Filed: August 28, 2008




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