      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-16-00236-CV



                                  8 Mile Park, L.P., Appellant

                                                 v.

                   Texas Commission on Environmental Quality, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
      NO. D-1-GN-14-005443, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               On October 8, 2014, appellee the Texas Commission on Environmental Quality

rendered a final default order assessing administrative penalties against appellant 8 Mile Park, L.P.

The order was mailed to 8 Mile by certified mail, return receipt requested, on October 14. On

November 6, 8 Mile filed a motion for rehearing of the default order, asserting that the motion was

timely filed because the order was sent on October 14 and 8 Mile was presumed to have received the

order three days later under the Administrative Procedure Act [“APA”]. See Act of April 16, 1999,

76th Leg., R.S., ch. 18, § 1, 1999 Tex. Gen. Laws 35, 35, amended by Act of May 22, 2015, 84th

Leg., R.S., ch. 625, § 4, 2015 Tex. Gen. Laws 2058, 2059 [“former Tex. Gov’t Code § 2001.142(c)”

or “former section 2001.142(c)”]. On November 10, 8 Mile filed an “Unopposed Not Objected to

Motion for Extension of Time” to file an amended or supplemental motion for rehearing, and the

Commission sent a letter on November 25 purporting to grant the motion and to extend the time
for filing an amended supplemental motion for rehearing to November 24. After the Commission

informed 8 Mile that the motion for rehearing had been overruled, 8 Mile filed suit for judicial

review. The Commission has filed a motion to dismiss, arguing for the first time1 that the trial court

lacked jurisdiction over the suit because 8 Mile’s November 6 motion for rehearing was filed one

day after the deadline ran. Because we agree, we vacate the trial court’s final judgment and dismiss

the underlying proceeding for want of jurisdiction.


                                             Discussion

               An appeal from an administrative proceeding is not a matter of right but instead must

be granted by statute. Jones v. State Bd. of Educator Certification, 315 S.W.3d 237, 243 (Tex.

App.—Austin 2010, pet. denied); Texas Alcoholic Beverage Comm’n v. Sfair, 786 S.W.2d 26, 27

(Tex. App.—San Antonio 1990, writ denied). A party seeking to appeal an administrative order

must strictly comply with the statute that authorizes the appeal. Jones, 315 S.W.3d at 243. As we

said in Jones, “we note the importance of construing the APA to allow parties to rely on the finality

of agency decisions,” and “‘[w]ithout a mandatory adherence to the time limits specified in the

[APA], the finality of administrative agency decisions would be uncertain and not in the public

interest.’” Id. (quoting Houston Mobilfone, Inc. v. Public Util. Comm’n, 565 S.W.2d 323, 327 (Tex.

Civ. App.—Eastland 1978, no writ)).




       1
          Subject matter jurisdiction may be raised for the first time on appeal. City of Houston v.
Rhule, 417 S.W.3d 440, 442 (Tex. 2013). The jurisdictional question posed here does not implicate
the merits of 8 Mile’s case, and we therefore will decide the issue based on the undisputed facts as
established by the record. See University of Tex. v. Poindexter, 306 S.W.3d 798, 807-08 (Tex.
App.—Austin 2009, no pet.).

                                                  2
                In an administrative proceeding, a timely motion for rehearing is generally a

jurisdictional prerequisite to an appeal. See Tex. Gov’t Code § 2001.145; Marble Falls Indep. Sch.

Dist. v. Scott, 275 S.W.3d 558, 565 (Tex. App.—Austin 2008, pet. denied). A decision in a

contested case is final “on the expiration of the period for filing a motion for rehearing” if a motion

for rehearing is not timely filed. Tex. Gov’t Code § 2001.144(a)(1); Scott, 275 S.W.3d at 565 (order

is final “when the time to file a motion for rehearing expires without a motion being filed”).

“Because a party is required to exhaust all available administrative remedies before seeking judicial

review, the APA must be construed in a manner that allows litigants to clearly recognize when those

remedies have been exhausted.” Jones, 315 S.W.3d at 243. At the time in question, a motion for

rehearing was due twenty days after 8 Mile was notified of the order. See Act of May 4, 1993, 73rd

Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 748, amended by Act of May 22, 2015, 84th Leg.,

R.S., ch. 625, § 9, 2015 Tex. Gen. Laws at 2060-61 [“ former Tex. Gov’t Code § 2001.146(a)” or

“former section 2001.146(a)”]; City of Jacksboro v. Two Bush Cmty. Action Grp., No. 03-10-00860-

CV, 2012 WL 2509804, at *3 (Tex. App.—Austin June 28, 2012, pet. denied) (mem. op.).

                The Commission’s final default order was dated October 8, 2014, notice of and a copy

of the order was mailed to 8 Mile on October 14,2 and 8 Mile filed its motion for rehearing on


        2
          In its reply to the Commission’s motion to dismiss, 8 Mile states that the Commission has
not proved that it mailed the default order on October 14. However, in its motion for rehearing,
8 Mile repeatedly referred to the Commission’s letter notifying 8 Mile of the default order as being
dated October 14, and in its motion for extension of time filed before the Commission on November
18, 8 Mile stated, “October 8, 2014 is the date of the Commission’s [Order] with respondent being
notified by certified mail dated October 14, 2014 pursuant to 30 TAC §2.71(b) ‘presumption to have
been notified on the third day after the date of that decision or order is mailed...[sic].’” In its letter
purporting to extend 8 Mile’s deadline for filing an amended or supplemental motion for rehearing,
dated November 25, the Commission stated that it mailed notice of the default order on October 14.

                                                    3
November 6. The only question to be answered in evaluating the Commission’s motion to dismiss

is whether the record shows that 8 Mile received notice of the final order on October 16 or whether,

under former section 2001.142(c), 8 Mile is presumed to have received notice on October 17.3

                The administrative record introduced before the trial court includes a certification

sworn to by the Commission’s custodian of records, who certified that the record was “a true and

correct copy of the administrative record” and that “[t]he records attached hereto are the exact

duplicates of the original.” Our resolution of the issue is based on Exhibit 37 of the administrative

record, which consists of the October 8 order; a cover letter addressed to Ronald Finkelman, 8 Mile’s

president, and dated October 14, 2014, which states, “Enclosed is a copy of an order issued by the

Commission,” and states that it was sent by certified mail; a copy of a certified mail receipt, showing

a mailing was sent to 8 Mile; and a copy of the signed “green card,” which reflects the Commission’s



And finally, in its petition for judicial review, 8 Mile stated that it was “notified by mail on the third
day after which the date on which the notice was mailed.” 8 Mile never disputed below that the
Commission did in fact mail the default order on October 14, and the record establishes October 14
as the date of mailing.

        Similarly, 8 Mile asserts that the record does not prove that it filed its motion for rehearing
on November 6, 2014, but numerous documents in the administrative record state that the motion
for rehearing was filed on November 6. For example, attached to 8 Mile’s Motion To Supplement
and/or Modify the Existing Motion for Rehearing” was an affidavit from its authorized representative,
who stated that he had drafted and prepared the “motion to supplement or amend [8 Mile]’s Motion
for Rehearing Filed November 6, 2014,” and that he suffered a power outage on November 6, which
resulted in the omission of appendices from the motion for rehearing. The record establishes that
8 Mile filed its motion for rehearing on November 6, 2014.
        3
          If the record establishes that 8 Mile actually received notice of the order on October 16, the
three-day presumption granted by former section 2001.142(c) disappears. See City of Jacksboro v.
Two Bush Cmty. Action Grp., No. 03-10-00860-CV, 2012 WL 2509804, at *4 n.1 (Tex. App.—Austin
June 28, 2012, pet. denied) (mem. op.) (quoting Temple Indep. Sch. Dist. v. English, 896 S.W.2d 167,
169 (Tex. 1995)).

                                                    4
docket number and 8 Mile’s permit number and shows the mailing was received at 8 Mile’s address

by “R Ramos” on October 16, 2014. The certified mail receipt and the signed green card are part

and parcel of the default order sent to 8 Mile, and thus the administrative record shows that the order

was sent to 8 Mile on October 14 and received on October 16.

                8 Mile asserts that Exhibit 37 shows only receipt of “an unidentified document

from an unidentified person that allegedly was received by the person who signed the certified mail

receipt on the date stated in the certified mail receipt.” However, the applicable rules or statutes

do not require that an administrative order specify the certified mail number used, and 8 Mile’s

argument would require us to imply a procedural irregularity or some failing on the Commission’s

part resulting in the erroneous attaching to the exhibit certified mail receipts that did not belong with

the final order. 8 Mile would bear the burden of alleging and showing some likelihood of such an

error,4 see In re Edwards Aquifer Auth., 217 S.W.3d 581, 589 (Tex. App.—San Antonio 2006, orig.

proceeding) (although reviewing court may admit new evidence related to procedural irregularities,

real parties in interest “do not argue, and the record does not show” that such provision would

apply), and we will not assume that the administrative record contains errors based on 8 Mile’s


        4
            The APA allows a reviewing court to admit and consider evidence outside of the
administrative record if there are allegations that procedural irregularities occurred in the
administrative proceeding. See Tex. Gov’t Code § 2001.175(e); Gomez v. Texas Educ. Agency,
354 S.W.3d 905, 918-19 (Tex. App.—Austin 2011, pet. denied); In re Edwards Aquifer Auth.,
217 S.W.3d 581, 589 (Tex. App.—San Antonio 2006, orig. proceeding); see also Hawkins v. State,
89 S.W.3d 674, 678-79 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (stating in context of
certification of penitentiary packet that courts apply “presumption of regularity of governmental
affairs” “because public officials have a disincentive to falsify documents or otherwise violate the
law in the course of their duties”). 8 Mile has not made such assertions, nor does anything in the
record raise the specter of irregularities in the mailing of the final order or in the Commission’s
record-keeping related to that mailing.

                                                   5
bare assertions that the administrative record contains “an alleged copy of a certified mail receipt

for an unidentified document from an unidentified person that allegedly was received by the person

who signed the certified mail receipt on the date stated in the certified mail receipt” and does not

prove “that the TCEQ mailed the subject default order to 8 Mile Park on October 14, 2014; (2) that

8 Mile Park received the notice of the subject default order on October 16, 2014, or (3) that 8 Mile

Park filed its motion for rehearing on November 6, 2014.”


                                            Conclusion

               “If a party does not timely file a motion for rehearing, the trial court lacks

subject-matter jurisdiction over a suit for judicial review of the agency’s decision.” Two Bush Cmty.

Action Grp., 2012 WL 2509804, at *3. The administrative record reflects that the order was sent by

certified mail on October 14 and was signed for by someone at 8 Mile’s address on October 16.

Therefore, 8 Mile’s motion for rehearing was due on November 5. See former Tex. Gov’t Code

§ 2001.146(a). Its untimely filing of its first motion for rehearing on November 6 was not sufficient

to grant the trial court jurisdiction over the suit for judicial review. See Two Bush Cmty. Action

Grp., 2012 WL 2509804, at *3; Scott, 275 S.W.3d at 565. Nor did the Commission’s purported

granting of an extension of time to amend or supplement the motion, a motion filed well after the

deadline ran, operate to give the trial court jurisdiction. See Two Bush Cmty. Action Grp., 2012 WL




                                                 6
2509804, at *7.5 We have no choice but to vacate the trial court’s judgment and dismiss the

underlying suit for judicial review.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Field, and Bourland

Vacated and Dismissed

Filed: August 31, 2016




       5
           8 Mile cites De La Garza v. Texas Department of Insurance and asserts that in that case, we
held “that the Commissioner of Insurance . . . was authorized to extend the deadline to file a motion
for rehearing after the deadline to file the motion for rehearing had passed.” See No. 03-11-00869-CV,
2015 WL 1285702 (Tex. App.—Austin Mar. 19, 2015, no pet.) (mem. op.). In De La Garza,
however, the Department itself asserted that the deadline for filing a motion for rehearing “initially
was December 30, 2009, and then February 19, 2010, after the Department granted him an extension
by written order.” Id. at *2 (citations omitted). The Department did not assert that its granting of
the extension of time was unauthorized, and thus the issue was not squarely before us. However,
to the extent that De La Garza can be read as implying that a state agency may grant a motion for
extension of time that is filed after the deadline to file a motion for rehearing has passed, we disavow
such a conclusion. See Two Bush Cmty. Action Grp., 2012 WL 2509804, at *7 (“If the APA does
not allow a party to amend a motion for rehearing after the filing deadline, then it follows that it
would not allow an agency to grant a request to extend the filing deadline that was made after the
deadline passed.”); see also Anderson v. Railroad Comm’n, 963 S.W.2d 217, (Tex. App.—Austin
1998, pet. denied) (“The APA makes no provision for amending a motion for rehearing after the
filing deadline.”); Snead v. Texas State Bd. of Med. Exam’rs, 753 S.W.2d 809, 811 (Tex.
App.—Austin 1988, no writ) (under APTRA, former version of APA; “First, there is no provision
in the Administrative Procedure and Texas Register Act permitting one to file an amended motion
for rehearing. Second, if an amended motion for rehearing were permitted, § 16(e) would require
that it be filed within fifteen days after rendition of the final agency order.”).

                                                   7
