



Mednick v. TSBPA                                                    



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-96-00150-CV





Leonard Mednick, Appellant


v.


Texas State Board of Public Accountancy, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 95-06366, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING






	In his only point of error, Leonard Mednick, appellant, challenges the district court's
dismissal of his suit seeking judicial review of an order of the Texas State Board of Public Accountancy,
appellee (the "Board").  Without a hearing and based solely on the pleadings, the district court granted the
Board's plea to the jurisdiction and dismissed Mednick's cause for lack of jurisdiction, finding that
Mednick's motion for rehearing before the Board was not timely filed.  We will reverse the order of the
district court and remand the cause for further proceedings.


BACKGROUND

	Leonard Mednick is a certified public accountant.  On February 24, 1995, the Board found
him in violation of an administrative rule regulating advertising by public accountants.  On March 14, 1995,
the Board mailed its written order to Mednick's attorney.  On April 3, 1995, Mednick filed a motion for rehearing; however, the Board refused to consider the motion
on the ground that it was not timely filed pursuant to section 22(f) of the Texas Public Accountancy Act
(the "Accountancy Act"), Tex. Rev. Civ. Stat. Ann. art. 41a, §§ 1-32 (West Supp. 1996).  The Board
took no further action and on May 19, 1995, Mednick filed a petition for judicial review in the district
court.  The district court found that Mednick's motion for rehearing was untimely filed under the
Accountancy Act and dismissed the cause for lack of jurisdiction.
	The issue in this case concerns the timeliness of Mednick's motion for rehearing.  Mednick
filed his motion for rehearing twenty days after the written order was mailed to his attorney.  The
Accountancy Act states that if a party files a motion for rehearing, it "must be filed within 15 days of the
rendition of the order, ruling, or decision complained of."  Accountancy Act § 22(f).  In contrast, the
Administrative Procedure Act (the "APA") (1) requires that, in order to preserve the right to appeal the
Board's decision to the district court, a party must file a motion for rehearing "not later than the 20th day
after the date on which the party or the party's attorney of record is notified."  Tex. Gov't Code Ann. §
2001.146(a).  Therefore, we must decide whether the procedures set forth in the Accountancy Act or the
APA govern the time limit for filing a motion for rehearing of the Board's decision.



CONTENTIONS OF THE PARTIES

	Both parties raise a number of theories regarding the resolution of the conflict between the
procedural provisions of the two statutes.  Mednick contends that receipt of written, as opposed to oral,
notice of the Board's order commenced the running of the time period for the filing of a motion for
rehearing.  Further, Mednick argues that the APA's twenty-day deadline to file a motion for rehearing
controls over the fifteen-day deadline in the Accountancy Act.  To support his argument, Mednick asserts
that the Accountancy Act's language is directory whereas the APA's language is mandatory; therefore, the
APA provides the proper jurisdictional method to seek judicial review of the Board's order.  Additionally,
Mednick contends that the APA's language controls because the APA, codified in 1993, is the most recent
expression of legislative intent with regard to administrative procedure.  Finally, Mednick asserts that,
because the APA sets the timetable for seeking judicial review, his petition was timely filed and the district
court had jurisdiction.
	In response, the Board contends that Mednick's presence, with his attorney, at the meeting
at which the Board rendered its decision constituted personal notice of the Board's order and commenced
the running of the time period for the filing of a motion for rehearing. (2)  Further, the Board argues that the
Accountancy Act's fifteen-day provision should prevail over the APA's twenty-day provision.  In support
of this argument, the Board asserts that the Accountancy Act's provision applies because it is a specific
statute, while the APA is a general one.  The Board also asserts that, because the Accountancy Act was
re-enacted in 1991, it is the legislature's most recent expression of intent regarding the administrative
procedures to be followed by the Board; therefore, the provisions of the Accountancy Act apply except
where supplemented by the mandatory requirements of the APA.  Ultimately, the Board contends that,
because Mednick did not file his motion for rehearing in compliance with the Accountancy Act, the district
court did not have jurisdiction to hear Mednick's appeal.


DISCUSSION

	Although the parties present persuasive arguments in support of their contentions, the
language of the Accountancy Act provides the basis for the resolution of the present conflict.  The
Accountancy Act fully incorporates the APA, stating that "the Board is subject to . . . the Administrative
Procedure and Texas Register Act, as amended." (3)  Accountancy Act § 27.  As a result of this inclusive
language, we are of the opinion that the two acts should be viewed as one.
	The APA expressly establishes "minimum standards of uniform practice and procedure for
state agencies."  APA § 2001.001(1); see Railroad Comm'n v. Arco Oil & Gas Co., 876 S.W.2d 473,
489 (Tex. App.--Austin 1994, writ denied).  Because the APA provides the minimum standards for
procedural matters, an agency's organic statute cannot restrict the procedural time requirements
established by the APA.  In its original form, the APA gave a party fifteen days to file a motion for
rehearing; however, in 1989 the legislature amended the APA to extend the time limit to twenty days.  Act
of May 29, 1989, 71st Leg., R.S., ch. 362, § 1, 1989 Tex. Gen. Laws 1448 (Tex. Rev. Civ. Stat. Ann.
art. 6252-13a, § 16(e), since repealed and codified at Tex. Gov't Code Ann. § 2001.146(a)).  The time
limit set forth in the Accountancy Act allows a party only fifteen days to file a motion for rehearing. 
Accordingly, the Accountancy Act denies an appealing party the minimum standard established by the
APA.
	In Reed v. Department of Licensing and Regulation, 820 S.W.2d 1 (Tex. App.--Austin
1991, no writ), we considered whether a conflict existed between the APA's requirement that a party file
a motion for rehearing as a prerequisite to judicial review and the organic act's failure to require any motion
for rehearing.  Id. at 2-4.  We concluded that the legislature had clearly expressed its intent that the APA
provide the principal law of judicial review and that the omission of mandatory language in the organic act
"did not expressly repeal the application of [the APA] to the Department."  Id. at 2.  Similarly, in the
present case, the Accountancy Act does not mandate that a party file a motion for rehearing; it does,
however, provide for the application of the minimum procedural requirements of the APA.  See Simmons
v. State Bd. of Dental Examiners, 925 S.W.2d 652 (Tex. 1996). (4)
	Because the Accountancy Act has fully incorporated the APA, which provides the minimum
standards for judicial review of agency decisions, we hold that the APA's twenty-day time period controls
over the fifteen-day time period in the Accountancy Act.  Under the APA, Mednick had twenty days to
file a motion for rehearing of the Board's order; therefore, Mednick's motion for rehearing was timely filed. 
Within thirty days after the Board's order became final and appealable, (5) Mednick filed his petition for
review in the district court.  See APA § 2001.176(a); Accountancy Act § 22(f)(3).  Because Mednick
timely complied with the procedural requirements for judicial review, the district court had jurisdiction over
his appeal. 


CONCLUSION

	Accordingly, we sustain Mednick's point of error.  We reverse the order of the trial court
and remand the cause for further proceedings.


   					Mack Kidd, Justice
Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Reversed and Remanded
Filed:   October 30, 1996
Publish
1.        The Administrative Procedure and Texas Register Act was codified without substantive
changes in 1993 and may be cited as the Administrative Procedure Act.  All citations in this
opinion are to the current Administrative Procedure Act.  Act of May 4, 1993, 73d Leg., R.S., ch.
268, § 47, 1993 Tex. Gen. Laws 583, 986 (Administrative Procedure Act, Tex. Gov't Code Ann.
§§ 2001.001-.902 (West 1988 and Supp. 1996)).
2.        We reject this contention.  It is well established that a party must move for rehearing with
sufficient specificity so that an agency may correct its error.  See Hamamcy v. State Bd. of Medical
Examiners, 900 S.W.2d 423, 425 (Tex. App.--Austin 1995, writ denied).  It follows that a party's ability
to file an intelligent and adequate motion for rehearing would be compromised if the oral pronouncement
of the Board's decision commenced the procedural timetable.
3.        Numerous statutes mirror the "subject to" language of section 27.  See, e.g., Texas Structural
Pest Control Act, Tex. Rev. Civ. Stat. Ann. art. 135b-6, § 3(g) (West Supp. 1996); Texas Engineering
Practice Act, Tex. Rev. Civ. Stat. Ann. art. 3271a, § 7(b) (West Supp. 1996).
4.        Although the organic statute at issue in Simmons did not require a motion for rehearing as a
prerequisite to appeal, the plaintiff filed both a motion for rehearing with the board and a petition for review
in the district court.  Id.  He then moved to stay the petition for review pending the overruling of his motion
for rehearing by operation of law.  Id.  The court held that the plaintiff had substantially satisfied the judicial
review requirements of the APA and that the district court had jurisdiction over his appeal.  Id. at 654.
5.        Both the APA and the Accountancy Act provide that an order is final and appealable when
the motion for rehearing is overruled.  APA § 2001.144(a)(2); Accountancy Act § 22(f)(2). 
Although the two statutes differ as to what event initiates the timetable for overruling a motion
for rehearing, the conflict is not properly before us because Mednick filed his petition for review
after his motion for rehearing was overruled according to the provisions of both statutes.  See
APA § 2001.146(c); Accountancy Act § 22(f)(1).

icial review and that the omission of mandatory language in the organic act
"did not expressly repeal the application of [the APA] to the Department."  Id. at 2.  Similarly, in the
present case, the Accountancy Act does not mandate that a party file a motion for rehearing; it does,
however, provide for the application of the minimum procedural requirements of the APA.  See Simmons
v. State Bd. of Dental Examiners, 925 S.W.2d 652 (Tex. 1996). (4)
	Because the Accountancy Act has fully incorporated the APA, which provides the minim