      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00869-CV



             Elias J. De La Garza d/b/a Elias De La Garza Insurance, Appellant

                                                v.

 Texas Department of Insurance and Commissioner of Insurance David Mattax, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-GN-10-000643, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Elias De La Garza d/b/a Elias De La Garza Insurance appeals from the trial

court’s judgment affirming a default order issued by appellee Commissioner of Insurance David

Mattax. In the order, the Commissioner revoked De La Garza’s insurance agent occupational

licenses. In five issues, De La Garza contends that his substantial rights were prejudiced because

the default order was “made through unlawful procedure,” “affected by other error of law,” and “in

violation of” his due process rights. See Tex. Gov’t Code § 2001.174(2)(A), (C), (D). For the

following reasons, we affirm the trial court’s judgment.


                                        BACKGROUND

               De La Garza, the owner and operator of Elias J. De La Garza Insurance, has been a

licensed insurance agent in Texas since 2000. Between November 2008 and June 2009, appellee
Texas Department of Insurance mailed multiple letters to De La Garza concerning client complaints,1

and requested his response. He did not respond to any of the letters. On October 2, 2009, the

Department mailed by first class and certified mail, with return receipt requested, notice of a public

hearing to De La Garza at his last known address. See 28 Tex. Admin. Code § 1.28 (Texas

Department of Insurance, Notice and Service)2; see also Tex. Gov’t Code § 2001.054(c)(1)

(requiring “notice by personal service or by registered or certified mail to the license holder”). The

hearing was scheduled for December 16, 2009, before an administrative law judge at the offices of

the State Office of Administrative Hearings (SOAH).

               One of De La Garza’s employees, who was in charge of handling the office mail and

finances, received the notice and signed the return receipt (green card). According to the

Department’s rules, De La Garza had 20 days to file a written response. See 28 Tex. Admin.

Code § 1.88(a) (Written Response to Notice of Hearing). He did not file a written response to the

notice of hearing.

               The Commissioner thereafter sought informal disposition by default due to De La

Garza’s failure to file a written response. See id. § 1.89 (Default: What Constitutes Default;

Remedies). On December 4, 2009, the Commissioner issued a default order revoking De La Garza’s




       1
         The client complaints that led to the Commissioner’s default order concerned allegations
that De La Garza received premium monies from his clients that he did not forward to the
appropriate insurance company, resulting in the clients’ policies either never being issued or not
being renewed. De La Garza’s clients discovered their lack of insurance when they attempted to file
claims based on damage to their residences sustained during Hurricane Ike.
       2
         Unless otherwise stated, references to the Texas Administrative Code are to the
Department’s rules.

                                                  2
licenses and ordering restitution and, a few days later, the Department mailed a copy of the default

order to De La Garza by regular mail and certified mail, return receipt requested.3 The Department

also filed a motion to dismiss with SOAH. On December 14, 2009, SOAH granted the motion to

dismiss and ordered the case removed from its docket.

               Toward the end of January 2010, De La Garza filed with the Department, among

other motions: (i) a motion for rehearing, (ii) a motion to set aside the default order and to reopen

the record, and (iii) a motion to extend time for filing a motion for rehearing and a motion to set

aside the default order and to reopen the record. See id. § 1.89(d) (addressing motions to set aside

and reopen after informal disposition by default). In his motion for rehearing, De La Garza

contended that his failure to respond was not intentional or the result of conscious indifference. He

also filed affidavits in support of his motions. In the affidavits, De La Garza and his wife testified

that he was unaware of the notice letters or the default order until January 8, 2010. According to

De La Garza, he did not learn of the notices or subsequent revocation of his licenses until he was

unable to place insurance with a carrier on that day. He explained that he “was told later” that the

employee who “handled the office mail and the office finances” shredded the notice letters from the

Department without alerting him of their existence and that the employee “had improperly failed to

pay certain agency financial obligations.” According to De La Garza, the employee’s services were

terminated on January 8, 2010.


       3
          In the order, the Commissioner’s conclusions of law included that De La Garza
“misappropriated, converted to his own use or illegally withheld money belonging to an insurer,
HMO, insured, enrollee or beneficiary,” see Tex. Ins. Code § 4005.101(b)(4); “engaged in fraudulent
or dishonest acts or practices,” see id. § 4005.101(b)(5); and “fail[ed] to respond to [the
Department]’s requests for information,” see id. § 38.001.

                                                  3
                On February 11, 2010, the Commissioner granted De La Garza’s motion to extend

the time for filing his motions, extending the deadline to February 19, 2010. See Tex. Gov’t

Code § 2001.146(e) (allowing state agency to extend time for filing motion for rehearing up to

90 days “after the date on which the party or the party’s attorney of record is notified”). On

February 15, 2010, De La Garza filed a motion for rehearing with SOAH of the December 14, 2009,

SOAH dismissal of his case, and, on February 21, 2010, he filed with the Department a notice of

intent to rely on previously filed motions, including the motion for rehearing that he filed in

January 2010.

                De La Garza sued the Department and the Commissioner on March 2, 2010, seeking

declaratory and injunctive relief, including a declaration that the default order “was null and void

ab initio.” He contended that the default order was supported by a defective affidavit and that notice

and an opportunity to be heard were not provided to him, resulting in revocation of his license

without due process of law. He urged that “the Default Order divested [him] of his constitutionally

protected property right to his occupational licenses without due process of law.” After the

Commissioner issued an order on March 10, 2010, denying his motions, including his motion for

rehearing, De La Garza amended his pending suit to add his petition for judicial review of the default

order under the Texas Administrative Procedure Act (APA). See Tex. Gov’t Code § 2001.171.

                The Department and the Commissioner filed a plea to the jurisdiction, and the parties

filed briefing on the merits. After a hearing, the trial court denied the plea to the jurisdiction but

affirmed the default order. This appeal followed.




                                                  4
                                              ANALYSIS

Exhausting Administrative Remedies

                As a preliminary matter, the Department and the Commissioner challenge the trial

court’s subject matter jurisdiction over De La Garza’s claims. They argue that he is not entitled to

judicial review of the default order because he did not file a timely motion for rehearing and,

therefore, that he failed to exhaust his administrative remedies.

                To be entitled to judicial review of an agency order under the APA, a plaintiff is

required to exhaust all available administrative remedies, see Tex. Gov’t Code § 2001.171, including

filing a timely motion for rehearing, see id. § 2001.145; see also id. § 2001.146 (requiring motion

for rehearing to be filed “not later than the 20th day after the date on which the party . . . is notified

. . . of a decision or order”). According to the Department, De La Garza’s deadline for filing a

motion for rehearing initially was December 30, 2009, see Tex. Gov’t Code § 2001.146; see id.

§ 2001.142 (allowing notice of order by first class mail with presumption that party “notified on the

third day after the date on which the notice is mailed”), and then February 19, 2010, after the

Department granted him an extension by written order. Id. § 2001.146(e) (allowing state agency to

extend deadline for filing motion for rehearing). The Department urges that De La Garza’s motion

for rehearing was not timely because he did not file his notice of intent to rely on previously filed

motions until after the extended deadline had expired. De La Garza filed this notice with the

Department on February 21, 2010.

                The Department’s argument, however, ignores De La Garza’s motion for rehearing

that he filed in January with the Department. This filing complied with the extended deadline.



                                                    5
Further, after the Commissioner denied his motion for rehearing by written order on March 10, 2010,

De La Garza amended his suit to include a petition for judicial review of the default order. See id.

§ 2001.176(a) (“A person initiates judicial review in a contested case by filing a petition not later

than the 30th day after the date on which the decision that is the subject of complaint is final and

appealable.”).4 On this record, we conclude that De La Garza’s motion for rehearing was timely and

that he exhausted his administrative remedies before bringing his suit for judicial review of the

default order. We turn then to his issues.


        Unlawful Procedure

                In his first and second issues, De La Garza contends that the default order prejudiced

his substantial rights because it was “made through unlawful procedure.” See Tex. Gov’t

Code § 2001.174(2)(C). He asserts “unlawful procedure” based on his allegations that the

Department’s notice of hearing did not contain the disclosure language required by section 1.88(c)




        4
           “This Court has previously held that filing a motion for rehearing and waiting for a final
decision on the motion are jurisdictional prerequisites to seeking judicial review in a purely
administrative case.” Desi Driving Sch. v. Texas Educ. Agency, No. 03-12-00547-CV,
2014 Tex. App. LEXIS 2859, at *4 (Tex. App.—Austin Mar. 14, 2014, no pet.) (mem. op.) (citing
Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 566–67 (Tex. App.—Austin 2008, pet.
denied)). In contrast with the procedural posture and relief requested in Desi Driving, De La Garza’s
original petition sought declaratory and injunctive relief based in part on his allegation that the order
violated his due process rights, and he did not bring his petition for judicial review of the default
order under the APA until after the Department denied his motion for rehearing. See id.; see also
Houston Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007) (noting that there
is right to judicial review of an administrative order that violates a constitutional right in addition
to any statutory right of judicial review); Texas Dep’t of Protective & Regulatory Servs. v. Mega
Child Care, Inc., 145 S.W.3d 170, 172 (Tex. 2004) (“In Texas, a person may obtain judicial review
of an administrative action only if a statute provides a right to judicial review, or the action adversely
affects a vested property right or otherwise violates a constitutional right.” (citation omitted)).

                                                    6
of its rules, see 28 Tex. Admin. Code § 1.88(c), and that the default order was not supported by a

“proper affidavit.”

                Under section 2001.174 of the APA, a court may reverse or remand an administrative

decision “if substantial rights of the appellant have been prejudiced because the

administrative findings, inferences, conclusions, or decisions are: . . . made through unlawful

procedure.” Tex. Gov’t Code § 2001.174(2)(C). But the appellant must raise his issues in his

motion for rehearing to preserve them for review. See Entergy Gulf States, Inc. v. Public Util.

Comm’n of Tex., 173 S.W.3d 199, 210 (Tex. App.—Austin 2005, pet. denied) (“The motion for

rehearing must be sufficiently definite to allow the agency to cure the error or defend the order. . . .

To preserve the issue for review, the party must state in the motion for rehearing the particular issue

the party asserts was error and the legal basis upon which the claim rests.” (citations omitted));

Williams v. Geeslin, No. 03-05-00450-CV, 2006 Tex. App. LEXIS 6319, at *5–6 (Tex.

App.—Austin July 21, 2006, no pet.) (mem. op.) (concluding that motion for rehearing did not

preserve issue for review). Here, although De La Garza argued in his motion to set aside the default

order that the affidavit supporting the default order was defective, he failed to raise this issue or his

issue challenging the notice’s disclosure language in his motion for rehearing and, therefore, has

waived them. See 28 Tex. Admin. Code § 1.89(d)(2) (“A motion to set aside the default order and

reopen the record is not a motion for rehearing and is not to be considered a substitute for a motion

for rehearing.”). Further, even if he had not waived the issues, we would conclude that they do not

have merit.




                                                   7
                In his first issue, De La Garza contends that the default order was not served in

compliance with applicable disclosure requirements because the notice of hearing did not contain

the statutory language required by section 1.88(c) of the Department’s rules. See 28 Tex. Admin.

Code § 1.88(c).5 Even if we were to agree with De La Garza, he did not establish that his substantial

rights were prejudiced by the language of the notice. He failed to show a causal connection between

the language in the notice and the revocation of his licenses. See Lone Star R.V. Sales, Inc. v. Motor

Vehicle Bd. of the Tex. Dep’t of Transp., 49 S.W.3d 492, 500 (Tex. App.—Austin 2001, no pet.)

(“Even if we were to find, however, that the Board engaged in an unlawful procedure, the task at

hand is to determine whether Lone Star’s substantial rights were prejudiced by the Board’s [allegedly

unlawful procedure].”). According to De La Garza, he was unaware of the notice until after the




       5
          Section 1.88(c) requires the notice of hearing to contain the following disclosure language
“in capital letters and 12-point boldface type”:

       IF YOU DO NOT FILE A WRITTEN RESPONSE TO THIS NOTICE WITH THE
       STATE OFFICE OF ADMINISTRATIVE HEARINGS WITHIN 20 DAYS OF THE
       DATE THIS NOTICE WAS MAILED, THE SCHEDULED HEARING MAY BE
       CANCELED AND THE COMMISSIONER OF INSURANCE MAY GRANT THE
       RELIEF SET OUT IN THIS NOTICE OF HEARING, INCLUDING REVOCATION
       OF YOUR LICENSE(S) BY DEFAULT. IF YOU FILE A WRITTEN RESPONSE
       BUT THEN FAIL TO ATTEND THE HEARING, THE COMMISSIONER OF
       INSURANCE MAY GRANT THE RELIEF SET OUT IN THIS NOTICE OF
       HEARING, INCLUDING REVOCATION OF YOUR LICENSE(S) BY DEFAULT.


28 Tex. Admin. Code § 1.88(c); see also id. § 1.89(c) (requiring notice of hearing to include
“required disclosure language set forth in § 1.88(c) of this title”). The Department’s disclosure
language in the notice complies with the requirements of capital letters and 12-point boldface type,
but it paraphrased and expanded the disclosure language.

                                                  8
Commissioner issued the default order. It follows that the language in the notice could not have been

the cause of his failure to timely file a written response. See id.

                As to his second issue, De La Garza contends that his substantial rights were

prejudiced because the default order was not supported by a “proper affidavit.” He urges that the

affidavit is defective because it does not include a statement that the facts within it are true. The

affidavit stated in relevant part:


        Before me the undersigned authority personally appeared Judy Lopez, who, being by
        me duly sworn, deposed as follows:

        My name is Judy Lopez. I am of sound mind, capable of making this affidavit, and
        personally acquainted with the facts herein stated.

        I have reviewed the computer records of [the Department] and have confirmed the
        last mailing address provided to the Department by Elias J. De La Garza in writing
        was [address].


Lopez also testified that the Department’s files contained a copy of the notice of hearing that was

filed with SOAH, that the notice was addressed to De La Garza’s last known address and mailed first

class and certified mail, with return receipt requested. Attached to her affidavit are copies of the

Department’s certified and first class mail logs.

                Given that the affidavit establishes that Lopez was “duly sworn” and “personally

acquainted with the facts herein stated,” we conclude that it was not defective even though it does

not include a statement that the facts within it are true. See Churchill v. Mayo, 224 S.W.3d 340,

346–47 (Tex. App.—Houston [1st Dist.] 2006, pet denied) (noting that, “[b]y stating that she is

‘personally acquainted with the facts herein stated,’ the affidavit plainly represents that it is made



                                                    9
from her personal knowledge” and that “[a]n affidavit that does not state that the facts recited are

true, but is based on personal knowledge and is subscribed to and sworn before a notary public, is

not defective”). Thus, De La Garza has failed to show that the default order was “made through

unlawful procedure” based on the challenged affidavit. See Tex. Gov’t Code § 2001.174(2)(C). We

overrule De La Garza’s first and second issues.


       Affected by Other Error of Law

               In his third issue, De La Garza argues that his substantial rights were prejudiced

because the administrative decision was “affected by other error of law.” See id. § 2001.174(2)(D).

He contends that he met all three elements of the Craddock test and the requirements of

section 1.89(d) of the Department’s rules and therefore that his case should be reinstated. See

28 Tex. Admin. Code § 1.89(d); Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126

(Tex.1939).

               Section 1.89(d) provides:


       After informal disposition of a contested case by default, a motion by the respondent
       to set aside the default order and reopen the record shall be granted if the respondent
       establishes that the failure to file a written response or to attend the hearing was
       neither intentional nor the result of conscious indifference, and that such failure was
       due to a mistake or accident.


28 Tex. Admin. Code § 1.89(d). The Craddock test similarly allows a trial court to set aside a

default judgment if, “the failure of the defendant to answer before judgment was not intentional, or

the result of conscious indifference on his part, but was due to a mistake or an accident.”

133 S.W.2d at 126. The Craddock test also requires the defendant to establish that it has a

                                                  10
meritorious defense and that setting aside the judgment “will occasion no delay or otherwise work

an injury to the plaintiff.” Id.

                Because it is dispositive, we limit our analysis to whether De La Garza established

that his failure to file a written response to the notice of hearing was “neither intentional nor the

result of conscious indifference, and that such failure was due to a mistake or accident.” See 28 Tex.

Admin. Code § 1.89(d); Craddock, 133 S.W.2d at 126; see also Tex. R. App. P. 47.4; Anderson v.

Railroad Comm’n of Tex., 963 S.W.2d 217, 219 (Tex. App—Austin 1998, pet. denied) (applying

Craddock test to denial of motion for rehearing from default order in administrative proceeding).

It was De La Garza’s burden to establish that the failure to respond was unintentional and not a result

of conscious indifference. See 28 Tex. Admin. Code § 1.89(d); Sutherland v. Spencer, 376 S.W.3d

752, 755 (Tex. 2012) (“A defendant satisfies its burden as to the first Craddock element when its

factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and

the factual assertions are not controverted by the plaintiff.”).

                De La Garza contends that he satisfied section 1.89(d) and the first element of the

Craddock test based on his factual assertions that his failure to respond was due to his lack of

knowledge about the notice, not a result of conscious indifference. In his affidavit, he averred that

he did not learn of the notices or subsequent revocation of his licenses until he was unable to place

insurance with a carrier on January 8, 2010, and that the employee, who handled the office mail and

finances, shredded the notices without alerting him of their existence. But the Department provided

notices to De La Garza in accordance with its rules by mailing the notices to his last known address,

and he concedes that the notices were received at this address. See 28 Tex. Admin. Code § 1.28(c)



                                                  11
(stating that “[d]eposit in the United States mails of a registered or certified letter, return receipt

requested, containing a notice of a hearing in compliance with the requirements specified by this rule

. . . sent to the party’s last known address . . . shall constitute notice of the hearing or of such decision

or order”). The Department was entitled to rely on the green card as proof of notice and to resolve

the conflicting evidence against De La Garza. See id.; Anderson, 963 S.W.2d at 219–20 (concluding

that agency “entitled to rely on the addresses that regulated [entities] are required to

provide”); see also Texas Alcoholic Bev. Comm’n v. AGA Trading, Inc., No. 14-08-00151-CV,

2009 Tex. App. LEXIS 7842, at *5–7 (Tex. App.—Houston [14th Dist.] Oct. 8, 2009, no pet.) (mem.

op.) (in context of order based on default proceeding, concluding that “agency’s finding of actual

notice was reasonable and supported by the record” even though claim of lack of notice was

supported by affidavit).

                Further, even if De La Garza’s affidavit was sufficient to establish that the failure to

respond was not intentional or a result of conscious indifference on his part, that is not the end of the

analysis. See Anderson, 963 S.W.2d at 219–20. In the context of default judgments, the Texas

Supreme Court has held that, “[w]hen a defendant relies on his agent to file an answer, he must

demonstrate that both he and his agent were free of conscious indifference. Holt Atherton Indus.,

Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (emphasis added). Here, although De La Garza

averred that the employee’s actions were not authorized and contravened office policy, De La Garza

relied on the employee to handle the office mail and finances, and De La Garza failed to




                                                     12
demonstrate that the employee’s actions surrounding the notices were not intentional or a result of

conscious indifference.6

               Guided by the supreme court’s directive in Heine, we conclude that De La Garza

failed to satisfy section 1.89(d) or the first element of the Craddock test. See id.; compare Anderson,

963 S.W.2d at 219–20 (upholding Commission’s decision to deny motion for rehearing as to default

order under first element of Craddock test in context of party who contended that he did not have

actual notice of the hearing and finding that “Commission could reasonably have concluded that

[party] received actual notice of the hearing”), with Fidelity & Guar. Ins. Co. v. Drewery Constr.

Co., 186 S.W.3d 571, 575–76 (Tex. 2006) (noting that default judgments “often” set aside “when

papers were misplaced, though no one knew precisely how” and that “excuse need not be a good one

to suffice”). On this basis, we overrule De La Garza’s third issue.


       Due Process

               In his fourth and fifth issues, De La Garza contends that his substantial rights were

prejudiced because the administrative decision was “in violation of a constitutional or statutory

provision.” See Tex. Gov’t Code § 2001.174(2)(A). He contends that the trial court erred in

affirming the default order when the motion for rehearing adequately advised the Department of his

complaints and when the default order violated his due process rights. He argues that his licenses




       6
         In briefing filed with the trial court, De La Garza offered the following explanation for the
employee’s actions as to the notices: “It is believed this employee intercepted and shredded the
correspondence from the [Department] because it was she who failed to forward the premium
payments to the insurance carriers and instead personally pocketed those payments.”

                                                  13
are protected property rights, and that revoking his licenses in the manner that the Department did

equates to an unconstitutional taking without due process of law. See Tex. Const. art. I, § 19.

                We agree with De La Garza that he has a property right in his licenses, but such

licenses are property rights “that [have] been created by statute and [are] subject to the state’s power

to impose conditions upon the granting or revocation of the license[s] for the protection of society.”

See Scally v. Texas State Bd. of Med. Exam’rs, 351 S.W.3d 434, 447 (Tex. App.—Austin 2011, pet.

denied). The issue is what process was due to him to protect his property right in this context. See

id. “What process is due is measured by a flexible standard that depends on the practical

requirements of the circumstances.” University of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926,

930 (Tex. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). “[T]he ultimate test of due

process of law in an administrative hearing is the presence or absence of rudiments of fair play long

known to our law.” State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984). “At a minimum, due process

requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.”

Scally, 351 S.W.3d at 447 (citing Mathews, 424 U.S. at 333; Than, 901 S.W.2d at 930).

                Here, as previously noted, the Department provided notices to De La Garza in

accordance with its rules by mailing the notices to his last known address, and he concedes that the

notices were received at this address. See 28 Tex. Admin. Code § 1.28(c). De La Garza also does

not challenge section 1.28 of the Department’s rules or the Department’s authority to rely on

addresses provided by its licensees or signed green cards to establish notice. See id.; Anderson,

963 S.W.2d at 219–20. As to De La Garza’s opportunity to be heard, the Department granted him

an extension of time to file his motion for rehearing and other motions after the default order was



                                                  14
entered and considered those motions. See Than, 901 S.W.2d at 930; Scally, 351 S.W.3d at 447.

On this record, we cannot conclude that the Department failed to afford De La Garza all of the notice

and opportunity to be heard that he was entitled to receive. See Tex. Const. art. I, § 19; Crank,

666 S.W.2d at 94; Scally, 351 S.W.3d at 447.

                 As part of these issues, De La Garza also raises the same arguments that he raised in

his first, second, and third issues and urges that he adequately advised the Department of his

complaints. But, as was previously noted, De La Garza did not raise his first and second issues in

his motion for rehearing; he urged that his failure to respond was not intentional nor the result of

conscious indifference.

                 For the same reasons that we overruled his first three issues, as well as our conclusion

that the Department did not violate his due process rights, we overrule his fourth and fifth issues.


                                           CONCLUSION

                 For these reasons, we affirm the trial court’s judgment affirming the Department’s

default order.



                                                 __________________________________________

                                                 Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: March 19, 2015




                                                   15
