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                                              OPINION

                                        No. 04-08-00341-CV

                                      Seymour G. PERKINS,
                                           Appellant

                                                 v.

                                    CITY OF SAN ANTONIO,
                                           Appellee

                     From the 150th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 07-CI-18926
                              Honorable Karen Pozza, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 20, 2009

REVERSED AND REMANDED

           Seymour G. Perkins appeals the trial court’s order affirming an order of the Dangerous

Structure Determination Board of the City of San Antonio (the “Board”). Perkins presents nine

issues on appeal; however, several of these issues are duplicative. The primary complaints raised

by Perkins are: (1) the trial court deprived him of his right to present evidence at the hearing

conducted by the trial court contrary to the substantial evidence rule and in violation of his due
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process rights; (2) the Board’s order is void on its face; (3) the trial court’s hearing was held without

proper notice; (4) the trial court’s failure to properly review the record deprived Perkins of his due

process rights; (5) Perkins was denied due process by the Board’s failure to appoint him an attorney

or, at least, advise him of his right to an attorney; (6) the trial court’s bias deprived him of due

process; and (7) the Board’s order is no longer effective.

        Because we hold that the trial court’s hearing was held without proper notice, we reverse the

trial court’s order. However, we also address the following additional issues to facilitate the trial

court’s review on remand: (1) the appropriate standard the trial court must apply in reviewing the

Board’s order; (2) whether the Board’s order is void on its face; and (3) the effectiveness of the

Board’s order. TEX . R. APP . P. 47.1.

                                            BACKGROUND

        On December 10, 2007, the Board met for a public hearing to consider whether Perkins’s

house located at 600 Hackberry Street was a public nuisance in need of abatement. Perkins appeared

at the hearing and addressed the Board. The Board determined that the property was a public

nuisance and its conditions were ordered to be abated by demolition of the main structure. The order

required Perkins to complete the demolition no later than December 24, 2007. The order provided

that it would become final at the expiration of thirty days, and Perkins’s failure to comply with the

order would result in the City’s demolition of the main structure.

        On December 21, 2007, Perkins filed a petition in district court requesting injunctive relief.

The trial court construed Perkins’s petition as a request for judicial review of the Board’s order

pursuant to section 214.0012 of the Texas Local Government Code and issued a writ of certiorari

ordering the City to provide certified or sworn copies of relevant papers and transcripts, as well as


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a statement of facts, showing the grounds of the Board’s decision. The City filed its return of

citation with the required documents on February 8, 2008. On March 13, 2008 the City filed a

motion to enter order, requesting the trial court to affirm the Board’s order. After conducting a

hearing on March 24, 2008, the trial court signed an order affirming the Board’s order.

                                SUBSTANTIAL EVIDENCE REVIEW

       In several issues, Perkins complains that the trial court deprived him of his right to present

evidence at the hearing it conducted contrary to the substantial evidence rule and in violation of his

due process rights.

       “Texas recognizes a range of standards for reviewing administrative decisions: (1) pure trial

de novo; (2) pure substantial evidence; and (3) substantial evidence de novo.” In re Edwards Aquifer

Authority, 217 S.W.3d 581, 586 (Tex. App.—San Antonio 2006, orig. proceeding). In this case, the

trial court applied the “pure substantial evidence” standard which “authorizes the reviewing court

to consider only the factual record made before the administrative body and determine if its findings

are reasonably supported by substantial evidence.” Id.

       In Wu v. City of San Antonio, this court considered the standard applicable in reviewing a

demolition order issued by the Board. 216 S.W.3d 1, 2 (Tex. App.—San Antonio 2006, no pet.).

We noted that the applicable review process “creates a hybrid standard of review wherein a trial

court must determine, by an examination of the evidence presented at trial, whether there is

substantial evidence to support the [Board’s] ruling.” Id. at 4 (emphasis added). We further noted,

“The trial court may consider any evidence ‘in existence at the time of the hearing before the appeal

tribunal regardless of whether it was introduced at the administrative hearing.’” Id. at 5. The type

of review described in Wu was a substantial evidence de novo review, which is “a hybrid standard


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[that] allows the reviewing court to hear additional evidence in existence at the time of the

administrative hearing, regardless of whether it was actually introduced at the administrative

hearing.” In re Edwards Aquifer Auth., 217 S.W.3d at 586.

        In reaching our conclusion in Wu regarding the applicable standard of review, we mistakenly

relied on the standard contained in section 212.202(a) of the Texas Labor Code which provides for

judicial review by “trial de novo based on the substantial evidence rule.” See Wu, 216 S.W.3d at 4;

TEX . LAB. CODE ANN . § 212.202(a) (Vernon 2006). However, section 212.202 is applicable only

to judicial review of a final decision of the Texas Workforce Commission. See TEX . LAB. CODE

ANN . §§ 212.201-212.202 (Vernon 2006). Judicial review of a decision by the Board, on the other

hand, is governed by section 214.0012 of the Texas Local Government Code. TEX . LOC. GOV ’T

CODE ANN . § 214.0012 (Vernon 2008).

        Section 214.0012(f) provides that an “[a]ppeal in the district court shall be limited to a

hearing under the substantial evidence review.” TEX . LOC. GOV ’T CODE ANN . § 214.0012(f)

(Vernon 2008). As evidenced by the language used in section 212.202(a) of the Texas Labor Code,

if the Legislature had intended to provide for a substantial evidence de novo review, it understood

the language that it would need to include in the statute. Compare TEX . LAB. CODE ANN . §

212.202(a) (Vernon 2006) with TEX . LOC. GOV ’T CODE ANN . § 214.0012(f) (Vernon 2008).

Moreover, if the Legislature had intended to allow a party seeking judicial review of a Board’s order

to present additional evidence, it also understood the language it would need to include in section

214.0012(f) to permit such a presentation.1 See TEX . GOV ’T CODE ANN . 2001.175(c), (e) (Vernon


        1
            … W e note that in the same legislation adopting section 214.0012, the Legislature amended a different section
of the T exas Local Government Code to remove language authorizing the presentation of additional evidence and
substituted a substantial evidence review. Act of May 26, 1993, 73rd Leg., R.S., ch. 836, 1993 Tex. Gen. Laws 3292.

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2008) (giving trial court discretion to allow presentation of additional evidence and requiring trial

court to receive evidence of procedural irregularities); but see City of Arlington v. Centerfolds, Inc.,

232 S.W.3d 238, 248 (Tex. App.—Fort Worth 2007, pet. denied) (noting Administrative Procedure

Act, which includes section 2001.175, applies only to state agency hearings, making it inapplicable

to a judicial review of the Board’s decision). By limiting the review of the Board’s order to “a

hearing under the substantial evidence review,” the clear language of section 214.0012(f) limits the

review a trial court is to conduct to a “pure substantial evidence” review. See TEX . LOC. GOV ’T

CODE ANN . § 214.0012(f) (Vernon 2008); see also Nussbaum v. City of Dallas, 948 S.W.2d 305, 308

(Tex. App.—Dallas 1996, no writ) (noting standard under section 214.0012 is substantial evidence

review). Accordingly, we disapprove of our conclusion in Wu regarding the applicable standard for

reviewing the Board’s orders.

         Under a pure substantial evidence review, the trial court in this case was authorized to

consider only the factual record made before the administrative body in determining whether

substantial evidence supports the Board’s order. See In re Edwards Aquifer Auth., 217 S.W.3d at

586. Accordingly, the trial court in this case did not err in conducting a pure substantial evidence

review.2




         2
           … W e note, however, that in addition to reviewing whether substantial evidence supports the Board’s order,
an arbitrary action of an administrative agency cannot stand, including any action that deprives a party of due process;
therefore, the trial court also is permitted to consider whether the proceedings before the Board satisfied the requirements
of due process. See, e.g., Lewis v. Metropolitan Sav. & Loan Ass’n, 550 S.W .2d 11, 16 (Tex. 1977) City of Arlington.,
232 S.W .3d at 248-254; Lee v. City of Houston, No. 14-05-00366-CV, 2006 W L 2254401, at *3-6 (Tex. App.— Houston
[14th Dist.] Aug. 8, 2006, pet. denied) (mem. op.); City of Garland v. Walnut Villa Apts., L.L.C., No. 05-01-00234-CV,
2001 W L 789298, at *3 (Tex. App.— Dallas July 12, 2001, no pet.); United Ind. Sch. Dist. v. Gonzalez, 911 S.W .2d 118,
123 (Tex. App.— San Antonio 1995), writ denied, 940 S.W .2d 593 (Tex. 1996); Grace v. Structural Pest Control Bd.,
620 S.W .2d 157, 160 (Tex. Civ. App.— W aco 1981, writ ref’d n.r.e.).

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                                       NOTICE OF HEARING

        In his fourth issue, Perkins contends the trial court erred in setting its hearing without the

forty-five days notice required by Texas Rule of Civil Procedure 245 or, in the alternative, the

twenty-one days notice required by Texas Rule of Civil Procedure 166a for a summary judgment

hearing. The City did not respond to this argument in its brief; however, during oral argument, the

City asserted that Perkins was only entitled to three days notice under Texas Rule of Civil Procedure

21.

        Rule 245 is entitled “Assignment of Cases for Trial” and requires forty-five days notice of

a first setting for a trial of a contested case. TEX . R. CIV . P. 245. Rule 21 is entitled “Filing and

Serving Pleadings and Motions” and requires a party to serve “[a]n application to the court for an

order and notice of any hearing thereon” upon all other parties “not less than three days before the

time specified for the hearing unless otherwise provided by these rules or shortened by the court.”

TEX . R. CIV . P. 21.

        Rule 21 is inapplicable to a trial setting. Fishing Publications, Inc. v. Williams, 661 S.W.2d

323, 325 (Tex. App.—Corpus Christi 1983, no writ). A hearing that is dispositive of a case is

effectively a trial setting. LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 391 (Tex. 1989);

In re Matter of $475,001.16, 96 S.W.3d 625, 627-28 (Tex. App.—Houston [1st Dist.] 2002, no pet.);

Coastal Banc SSB v. Helle, 48 S.W.3d 796, 801 (Tex. App.—Corpus Christi 2001, pet. denied);

Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex. App.—Dallas 1998, no pet.). Because the trial

court’s hearing in the instant case was dispositive of the merits of underlying case, the hearing was




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effectively a trial setting. Accordingly, the trial court erred in not providing Perkins with forty-five

days notice of the hearing.3

                                           BOARD ’S ORDER NOT VOID

         In his third issue, Perkins contends the Board’s order is void because it ordered Perkins to

demolish the main structure on his property by December 24, 2007, which was less than thirty days

after the Board’s order was signed. Perkins refers to section 214.0012(a) which provides that the

Board’s decision becomes final upon the expiration of thirty calendar days after the copy of the

Board’s final decision is personally delivered, mailed or delivered by mail. See TEX . LOCAL GOV ’T

CODE ANN . § 214.0012(a) (Vernon 2008). As the Texas Supreme Court has noted, however, “[a]

judgment is void only when it is apparent that the court rendering the judgment had no jurisdiction

of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no

capacity to act as a court.” Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). Perkins does

not argue that the Board’s order is void on any of these bases. Moreover, the Board’s order expressly

provided that it was not final until thirty days had elapsed and did not state that the City was

authorized to abate the conditions before the thirty days had elapsed. Therefore, the Board’s order

is not void.

                                           EFFECTIVENESS OF ORDER

         Perkins cites no authority to support his contention that the Board’s order is no longer

effective because it required the demolition to be complete by December 24, 2007. Perkins asserts


         3
          … W e note the City may have been able to seek a ruling through a motion for summary judgment that would
decrease the required notice to twenty-one days. See T EX . R. C IV . P. 166a; In re Edwards Aquifer Authority, 274 S.W .3d
742, 751 (Tex. App.–San Antonio, 2008, pet. filed) (addressing substantial evidence review in appeal of summary
judgment); City of Arlington, 232 S.W .3d at 242-43 (appellants used summary judgment motion to seek affirmance of
Board’s order by the trial court).

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that because the December 24, 2007, date has passed, no valid order allows the City to demolish his

home. The order, however, required Perkins to demolish the home by December 24, 2007, and

permitted the City to do so after that date only if Perkins failed to comply with the order. The order

is, therefore, still effective.

                                           CONCLUSION

        Because Perkins was not provided with proper notice of the trial court’s hearing, we reverse

the trial court’s order and remand the cause for a new hearing.



                                                       Marialyn Barnard, Justice




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