      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-02-00670-CV



  Texas Advocates Supporting Kids with Disabilities/Texas Education Agency and Felipe
                    Alanis, Commissioner of Education, Appellants

                                                 v.

 Texas Education Agency and Felipe Alanis, Commissioner of Education/Texas Advocates
                     Supporting Kids with Disabilities, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
         NO. GN20079, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                          OPINION


               Texas must comply with certain requirements to receive funding under the Federal

Individuals with Disabilities Education Act (the Federal Act). One of these requirements is that the

Texas Education Agency (TEA) allow parents of children with disabilities to contest in an

administrative hearing the yearly individualized education plans developed by the school district.

The Federal Act also gives parents the right to judicial review of TEA’s decision in state or federal

court. In this appeal we must decide whether TEA has the authority to promulgate two limitations

periods: a one-year period applicable to the administrative hearing, and a ninety-day period

applicable to judicial review of the administrative determination. Because we hold that TEA has the
authority to establish the one-year period, but lacks the authority to establish the ninety-day period,

we affirm the district court’s declaratory judgment.


                                          BACKGROUND

                The Federal Act provides financial assistance to states for educating disabled children.

See 20 U.S.C.A. § 1412 (West 2000). To receive these funds, a state must implement policies to

meet all federally mandated conditions. Id. Such conditions include making “[a] free appropriate

education . . . available to all children with disabilities residing in the [s]tate between the ages of 3

and 21” by means of an “individualized education program.” Id. § 1412(a)(1)(A), (4). The Federal

Act provides specific “procedural safeguards” to children with disabilities and their parents in

structuring their individualized education programs. See id. § 1415(a) (West 2000). Parents are

afforded an impartial “due process hearing” before TEA to resolve any disagreements with the

school district about the appropriateness of their child’s education program. See id. § 1415(f) (West

2000). If they are still dissatisfied, parents may seek judicial review of TEA’s decision in state or

federal court. See id. § 1415(i)(2).

                The Texas Legislature has mandated that TEA “develop, and modify as necessary,

a statewide design, consistent with federal law, for the delivery of services to children with

disabilities in this state.” Tex. Educ. Code Ann. § 29.001 (West Supp. 2003). The statewide design

must include “rules for the administration and funding of the special education program so that a free

appropriate public education is available to all of those children between the ages of three and 21.”

Id. TEA has developed such a design, which it implements through a set of detailed rules. See 19

Tex. Admin. Code §§ 89.61-.1191 (2003).

                                                   2
                Neither Congress nor the Texas Legislature has imposed time periods for filing

requests for due process hearings or seeking judicial review of TEA’s decisions. In the absence of

legislatively enacted limitations periods, hearing officers have traditionally applied the two-year tort

limitations period to due process claims. See Texas Education Agency, James P. v. Northeast Indep.

Sch. Dist., Docket No. 270-SE-496 (June 24, 1996) (Decision of Hearing Officer); cf. McDowell v.

Fort Bend Indep. Sch. Dist., 737 F. Supp. 386, 388-89 (S.D. Tex. 1990). Similarly, state and federal

courts have borrowed this two-year limitations period for suits for judicial review. See Scokin v.

Texas, 723 F.2d 432, 438 (5th Cir. 1984). Recently, however, TEA determined that the longer it

takes to resolve disputes through a due process hearing and subsequent suit for judicial review, the

greater the potential damage to a child’s education. Accordingly, in December 2001, TEA adopted

rules creating shorter time limits for initiating due process hearings and for requesting judicial review

of the resulting TEA decisions. See 19 Tex. Admin. Code §§ 89.1151(c), .1185(p) (2003). The first

rule requires a parent to “request a due process hearing within one year of the date the complainant

knew or should have known about the alleged action that serves as the basis for the hearing request.”

Id. § 89.1151(c). The second rule requires that an appeal of a TEA decision “must be initiated no

more than 90 days after the date the hearing officer issued his or her written decision in the due

process hearing.” Id. § 89.1185(p).

                Texas Advocates Supporting Kids with Disabilities, an advocacy group for disabled

children and their parents, filed suit seeking a declaratory judgment invalidating both limitations

periods. It claimed that TEA had violated the separation-of-powers provision of the Texas

Constitution by promulgating the two rules. See Tex. Const. art. II, § 1. Both Texas Advocates and


                                                   3
TEA filed motions for summary judgment on this issue. The trial court granted each motion in part

and denied each in part, declaring that (1) rule 89.1151(c)—the one-year limitations period for

initiating a due process hearing within TEA—“does not violate Art. II, Section 1 of the Texas

Constitution and was properly delegated by the Texas Legislature to the Texas Education Agency,”

while (2) rule 89.1185(p)—the ninety-day limitations period for obtaining judicial review of TEA’s

decision—is invalid “because it violates Art II, Section 1 of the Texas Constitution.” Texas

Advocates appeals the portion of the judgment declaring the one-year period valid, and TEA appeals

the portion of the judgment declaring the ninety-day period invalid.


                                           DISCUSSION

               In its motion for summary judgment, Texas Advocates claimed that TEA violated the

separation-of-powers provision of the Texas Constitution by promulgating the challenged rules. See

Tex. Const. art. II, § 1. The argument that it urges most strongly on appeal is that TEA exceeded its

statutory authority when it promulgated the rules, i.e., that the legislature did not delegate to TEA

the authority to impose such limitations periods.1



       1
           It is not necessarily incorrect to speak of an agency exceeding its statutory authority as a
violation of the separation-of-powers doctrine. See Brown v. Humble Oil & Refining Co., 83 S.W.2d
935, 941 (Tex. 1935); cf. Nagahi v. INS, 219 F.3d 1166, 1169-71 (10th Cir. 2000). However, the
normal practice is to challenge agency action as being in excess of its statutory authority without
making explicit reference to separation of powers, see, e.g., Public Util. Comm’n v. City Pub. Serv.
Bd., 53 S.W.3d 310, 315-16, 325 (Tex. 2001), and to treat questions of whether an agency exceeded
its statutory authority distinctly from questions of whether other separation-of-powers violations
have occurred. See, e.g., Texas Bldg. Owners & Managers Ass’n v. Public Util. Comm’n, No. 3-02-
611-CV, slip op at 10-19, 2003 Tex. App. LEXIS 4710, at *13-29 (Tex. App.—Austin June 5, 2003,
no pet. h.); Black v. Dallas County Bail Bond Bd., 882 S.W.2d 434, 437-39 (Tex. App.—Dallas
1994, no writ).

                                                  4
                Because the propriety of a summary judgment is a question of law, we review the trial

court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Dep’t

of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex. App.—Austin 1999, no pet.).

The standards for reviewing a motion for summary judgment are well established: (1) the movant

for summary judgment has the burden of showing that no genuine issue of material fact exists and

that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material

fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;

and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts

resolved in its favor. Nixon v. Mr. Props. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When

both sides move for summary judgment and the trial court grants one party’s motion and denies the

other, we review both sides’ summary-judgment evidence and determine all questions presented.

FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). If we find that the trial

court erred, we will reverse and render the judgment that the trial court should have rendered. See

id.; Bradley v. State ex. rel White, 990 S.W.2d 245, 247 (Tex. 1999).


                                          RULE 89.1151(c)

                Texas Advocates complains that the district court erred in finding that TEA has the

authority to place a one-year limitations period on requests for due process hearings. Initially, TEA

did not promulgate a limitations period governing due process hearings. Hearing officers applied

a two-year limitations period to such requests. See, e.g., Texas Education Agency, James P. v.

Northeast Indep. Sch. Dist., Docket No. 270-SE-496 (June 24, 1996) (Decision of the Hearing



                                                   5
Officer) (applying two-year limitations period for personal-injury cases set forth in section 16.003

of civil practice and remedies code as “limitations period most applicable” to request for hearing).

               After TEA promulgated the one-year period in rule 89.1151,Texas Advocates charged

that the legislature did not delegate to the agency the power to impose a limitations period for due

process hearings, see 19 Tex. Admin. Code § 89.1151(c), and that if it did so intend, that the

delegation is void for lack of reasonable standards.


A. Exceeding Statutory Authority

               An agency is entirely a creature of the legislature, possessing only such powers as are

delegated to it. See Public Util. Comm’n v. GTE-Southwest, Inc., 901 S.W.2d 401, 406-07 (Tex.

1995); Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 148 (Tex. App.—Austin 1998,

no pet.). The powers of the agency include both the powers delegated by the legislature in clear and

express statutory language, and any implied powers that may be necessary to perform a function or

duty so delegated. GTE Southwest Inc. v. Public Util. Comm’n, 10 S.W.3d 7, 12 (Tex. App.—

Austin 1999, no pet.). When the legislature expressly confers a power on an agency, it also

impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express

functions or duties. See id.; GTE-Southwest, Inc., 901 S.W.2d at 407. An agency may not, however,

exercise what is effectively a new power on the theory that such exercise is expedient for the

agency’s purposes. GTE-Southwest, Inc., 901 S.W.2d at 407.

               As discussed above, to receive federal funds, Congress has required states to make

available “a free appropriate public education . . . to all children with disabilities residing in the



                                                  6
[s]tate between the ages of 3 and 21.” See 20 U.S.C.A. § 1412(a)(1)(A). This free appropriate

education must be provided by an “individualized education program.” Id. § 1412 (a)(4)

               The Texas Legislature has expressly delegated to TEA the responsibility and power

to create a statewide program to educate disabled children consistent with federal law:


       The [A]gency shall develop, and modify as necessary, a statewide design, consistent
       with federal law, for the delivery of services to children with disabilities in this state,
       that includes rules for the administration and funding of the special education
       program so that a free appropriate public education is available to all those children
       between the ages of three and 21. The statewide design shall include the provision
       of services primarily through school districts and shared service arrangements,
       supplemented by regional education service centers. The agency shall also develop
       and implement a statewide plan with programmatic content that includes procedures
       designed to [among other things]:

       !    ensure state compliance with requirements for supplemental federal funding for
            all state-administered programs involving the delivery of instructional or related
            services to students with disabilities;

       !    ensure that an individualized education program for each student with a
            disability is properly developed, implemented, and maintained in the least
            restrictive environment that is appropriate to meet the student’s educational
            needs[.]


Tex. Educ. Code Ann. § 29.001. TEA has developed just such a statewide design, consistent with

the Federal Act, which includes detailed procedural rules for the federally-required due process

hearings. See 19 Tex. Admin. Code §§ 89.1150-.1191 (2003).

               Texas Advocates claims that, although it may have the power to promulgate most of

the rules comprising its statewide design, TEA nonetheless lacks the power to promulgate the one-

year limitations period. It argues that because “the sentence in which the rule-making authority is



                                                   7
embedded concerns the . . . statewide design for the delivery of services,” it follows that TEA’s

authority is limited to promulgating rules specifically focused on “the delivery and availability of

services.” It further claims that the second sentence of the paragraph, which states that the delivery

of services is to be accomplished primarily through school districts and shared services

arrangements, bolsters its conclusion that “this introductory paragraph, read as a whole, is simply

not about due process administrative hearings.” We reject Texas Advocates’ extremely narrow

reading of the introductory paragraph of section 29.001. There are two major problems with Texas

Advocates’ interpretation: First, because they involve parents’ challenges to their children’s

individualized-education plans, due process hearings manifestly do concern the delivery and

availability of services; and second, even if this were not the case, the same sentence requiring a

statewide design “for the delivery of services to children with disabilities” also requires that TEA

enact rules “so that a free appropriate public education is available to all those children between the

ages of three and 21”; without doubt, the availability of due process hearings to challenge

inappropriate education programs is inextricably connected with the “free appropriate public

education” required by the Federal Act. See 20 U.S.C.A. § 1412(a)(1)(A).

               The more reasonable reading of section 29.001 is that it delegates to TEA the

responsibility to develop and oversee a program to implement the Federal Act’s requirements.

Section 29.001 specifically authorizes TEA to adopt rules for the administration of the state’s

special-education program that are consistent with the requirements of the Federal Act. Moreover,

section 29.001 echoes the Federal Act by requiring that TEA’s rules ensure disabled students a free

and appropriate public education by means of an individualized education program.


                                                  8
               Our reading is bolstered by the Federal Act itself, which expressly contemplates that

the appropriate body to “establish and maintain procedures . . . to ensure that children with

disabilities and their parents are guaranteed procedural safeguards with respect to the provision of

free appropriate public education . . .” is the “[s]tate educational agency, [s]tate agency, or local

educational agency” that receives the federal funding. Id. § 1415(a).

               The due process hearings are part of the federal program that TEA is required to

implement. The fact that TEA did not initially enact a limitations period does not mean that it lacks

such authority. We hold that the legislature granted the agency sufficiently broad power in section

29.001 to promulgate a limitations period that it deems would benefit the education of disabled

children in the state.2 We conclude that TEA did not exceed its statutory authority in promulgating

the one-year limitations period to seek an administrative hearing.


B. Reasonable Standards

               In a complex society such as ours, delegation of legislative power is both necessary

and proper in certain circumstances. See FM Props., 22 S.W.3d at 873. The legislature may

delegate powers to agencies established to carry out legislative purposes as long as the legislature

establishes reasonable standards to guide the agency in exercising those powers. Id.; see Edgewood

Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995).



       2
           Texas Advocates bolsters its reading by citing to (1) the absence of any reference to due
process hearing procedures in the legislative history of section 29.001, and (2) the fact that the
legislature has in the past “revamped substantial portions of the Education Code without addressing
the issue of limitations periods or due process hearings.” However, we think that the plain meaning
of the statute is sufficiently clear and are not moved by these additional arguments.

                                                 9
                Texas Advocates argues that even if the legislature intended to delegate to TEA the

power to promulgate a limitations period, the delegation is void for lack of reasonable standards to

guide TEA in the exercise of that power. We do not fully understand Texas Advocates’ argument

on this point. The legislature delegated to TEA the power to create and administer a statewide

design to educate disabled children consistent with the requirements of the Federal Act. We have

held that TEA has the power to enact a limitations period for the federally required due process

hearings as a part of its design. Texas Advocates does not challenge the sufficiency of the standards

which are to guide TEA in the enactment of its statewide design; instead, by focusing only on the

limitations period, it seems to imply that the legislature must provide very specific guidance if it

wants an agency to be able to impose a limitations period for its administrative hearings.3 Texas

Advocates provides no competent authority for this position, and we have found none to support it.

To the contrary, Texas courts generally uphold legislative delegations to state agencies. See Boll

Weevil Eradication Found. v. Lewellan, 952 S.W.2d 454, 467 (Tex. 1997). Because the legislative

standards were sufficient to guide TEA in the development of its statewide design, and the

limitations period for due process hearings is an integral part of that design, the legislature has




        3
           This is a somewhat charitable reading of Texas Advocates’ argument; it is also possible
to interpret its position as simply reiterating its claim that the Legislature did not in fact delegate to
it the authority to enact the one-year limitations period. For example, it concludes its argument with
the claim that “[t]he absence of standards to guide TEA in the exercise of the power it claims to have
been delegated is not surprising, as the power itself appears nowhere—expressly or impliedly—in
the statutory text.”

                                                   10
prescribed sufficient standards to guide TEA’s discretion. We overrule Texas Advocates’ issue and

affirm the district court’s declaration that rule 89.115(c) is valid.


                                          RULE 89.1185(p)

                TEA complains that the district court erred in finding that it lacks the authority to

place a ninety-day limitations period on filing a suit for judicial review. The Federal Act provides

for judicial review of TEA’s determinations:


        [A]ny party aggrieved by the findings and decision [of TEA] . . . shall have the right
        to bring a civil action with respect to the complaint presented pursuant to this section,
        which action may be brought in any [s]tate court of competent jurisdiction or in a
        district court of the United States without regard to the amount in controversy.


20 U.S.C.A. § 1415(i)(2)(A). In Scokin v. Texas, the United States Court of Appeals for the Fifth

Circuit considered which limitations period to apply to a suit for judicial review brought under this

provision. 723 F.2d 432, 435-39 (5th Cir. 1985). The Scokin court applied the principle that when

a federal statute creates a right but does not specify a period of limitations, federal courts will

generally apply the limitations period applicable to the most analogous state cause of action, so long

as the period is consistent with the underlying policy of the federal act. Id. at 436. The court

rejected the argument that it should borrow the thirty-day limitations period applicable to a state-

court suit for judicial review of a state agency decision under the Administrative Procedure Act. Id.

Finding a thirty-day period contrary to the Act’s goal of parental involvement, the court applied the

two-year period generally applicable to tort claims. Id. at 437-39. TEA argues that the broad

delegation of power found in section 29.001 of the education code gives it the authority to


                                                   11
promulgate what is effectively a statute of limitations for suits seeking judicial review of TEA’s

decisions. We disagree.

               As discussed above, TEA has only those powers delegated to it by the legislature in

clear and express statutory language, and those powers that can be implied because they are

necessary to perform a function or duty so delegated. GTE Southwest Inc., 10 S.W.3d at 12. The

power to develop procedures for judicial review of its own decisions is not encompassed by the

express requirement that TEA develop and administer a statewide design for the education of

children with disabilities. See Tex. Educ. Code Ann. § 29.001. The due process hearings themselves

are undoubtedly a part of the statewide design based on individualized education programs. By

contrast, judicial review of TEA’s decisions is an external check on the agency’s authority and

judgment by the courts. The power to promulgate rule 89.1185(p) was not expressly granted and

cannot be implied because judicial review of TEA’s decision is manifestly not a “function or duty”

of the agency, but a function of the state and federal courts. See 20 U.S.C.A. § 1415(i)(2)(A). If the

legislature wants TEA to have some role in defining this process of judicial review, it needs to

explicitly so provide. See Nagahi v. INS, 219 F.3d 1166, 1168-72 (10th Cir. 2000) (broad

congressional delegation of authority to Immigration and Naturalization Service regarding

naturalization decisions did not grant agency authority to enact limitations period for judicial review

of denial of naturalization applications). We decline to hold otherwise and to attribute to the

legislature the intent to allow TEA to unilaterally limit the only apparent external check on its due

process determinations. We overrule TEA’s issue and affirm the district court’s declaration that rule

89.1185(p) is invalid.


                                                  12
                                          CONCLUSION

               TEA acted within its statutory authority and did not violate separation-of-powers

principles when it promulgated a one-year limitations period to seek an administrative hearing to

challenge an individualized education program. However, TEA lacks the statutory authority to

promulgate a limitations period to seek judicial review of its decisions. We therefore affirm the

declaratory judgment of the district court in all respects.




                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: July 11, 2003




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