                            NUMBER 13-11-00068-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TEXAS STATE BOARD OF NURSING,                                                Appellants,

                                            v.

BERNARDINO PEDRAZA JR.,                                                         Appellee.


                    On appeal from the 93rd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Justice Benavides

      The Texas State Board of Nursing (“the Board”) appeals the trial court’s denial of

its plea to the jurisdiction over claims raised by appellee Bernardino Pedraza.       By two

issues, the Board asserts that:   (1) the trial court did not have subject matter jurisdiction

to stay enforcement of the Board’s order to revoke Pedraza’s nursing license because
Pedraza failed to exhaust his administrative remedies; and (2) even if the trial court

acquired jurisdiction over Pedraza’s claims, the trial court’s review is limited to the

substantial evidence standard of review. We reverse and render in part, and reverse

and remand in part.

                                 I.     BACKGROUND

       After a contested hearing before an administrative law judge, the administrative

law judge submitted a “Proposal for Decision” to the Board and proposed that the Board

suspend Pedraza’s vocational nursing license for a fully-probated period of two years.

The Board declined the proposal, see TEX. GOV’T CODE ANN. § 2001.058 (West 2008),

and chose instead to revoke Pedraza’s vocational nursing license.     The Board took this

action on July 23, 2010, after concluding that Pedraza:

       engaged in unprofessional conduct and violated the minimum standards of
       nursing practice by failing to recognize and maintain professional
       boundaries of the nurse-client relationship. . . .

See 22 TEX. ADMIN. CODE § 217.12(6)(C)–(E) (2012) (Tex. Bd. of Nursing).

       On August 12, 2010, Pedraza filed a motion for rehearing with the Board. The

same day, Pedraza also filed an original petition and application for injunctive relief in

Hidalgo County district court seeking a review of the Board’s decision through a trial de

novo as well as a stay pending review.     In addition to seeking review of the Board’s

decision, Pedraza asserted additional claims of due process violations as well as

defamation.

       On October 11, 2010, the Board answered and filed a plea to the jurisdiction in the

district court case.   In the plea, the Board asserted that Pedraza did not exhaust his

administrative remedies before filing his petition because Pedraza’s motion for rehearing


                                            2
was still pending before the Board and was not final for purposes of appeal. The trial

court nonetheless granted Pedraza’s motion to stay and enjoined the Board from

revoking his license. The trial court also set Pedraza’s claims for trial. On January 27,

2011, the trial court denied the Board’s plea to the jurisdiction.                     This accelerated

interlocutory appeal followed.         See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8)

(West 2008).1

                              II.      PLEA TO THE JURISDICTION

         In its first issue, the Board contends that the trial court erred when it denied the

Board’s plea to the jurisdiction because the trial court lacked subject matter jurisdiction to

stay enforcement of the Board’s order to revoke Pedraza’s license to practice nursing.

A.       Standard of Review

         A plea to the jurisdiction is a dilatory plea used to defeat a cause of action for lack

of subject-matter jurisdiction and without regard to whether the claims asserted have

merit.       Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).             Subject-matter jurisdiction is essential to

a court’s power to decide a case, and the question of whether a trial court has

subject-matter jurisdiction is a question of law decided de novo.                       See Sykes, 136

S.W.3d at 638; Blue, 34 S.W.3d at 554.

         When a plea to the jurisdiction challenges a plaintiff’s pleadings, we determine

whether the pleading has alleged facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause.         See Tex. Dep’t. of Parks and Wildlife v. Miranda, 133


         1
            We note that the Board filed a previous notice of accelerated appeal in this case on December 15,
2010; however, the Board filed an amended notice of accelerated appeal on February 1, 2011, following the
trial court’s denial of the Board’s plea to the jurisdiction.

                                                     3
S.W.3d 217, 226 (Tex. 2004).       We construe the pleadings liberally in favor of the

pleader and look to the pleader’s intent.     Id. If the pleadings do not contain sufficient

facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and

the plaintiffs should be afforded the opportunity to amend.        Id. at 226–27; County of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).               However, if the pleadings

affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiffs an opportunity to amend.    Miranda, 133 S.W.3d at

227.

B.     Pedraza’s Petition for Judicial Review

       1. Applicability of Administrative Procedures Act

       As a threshold matter, we must determine what pertinent procedural scheme

applies to this case. The Board argues that the Administrative Procedures Act (APA)

applies, see TEX. GOV’T CODE ANN. Chapter 2001 (West 2008), while Pedraza argues

that procedures under the Nursing Practice Act apply.         See TEX. OCC. CODE ANN. §

301.151 (West 2004). Based on our review, we conclude that the disciplinary action

instituted against Pedraza was subject to the procedures set forth in the APA.      See id.

§§ 301.459, .511 (West 2004) (stating that an administrative proceeding brought under

the Nursing Practice Act is subject to the APA).         Accordingly, we will conduct our

analysis pursuant to the APA, unless otherwise specified.

       2. Pedraza’s Petition for Judicial Review

       Under the APA, a timely motion for rehearing is a pre-requisite to appeal an

agency’s decision in a contested case.      See TEX. GOV’T CODE ANN. § 2001.145(a) (West


                                              4
2008). A motion for rehearing in a contested case is timely if it is filed no later than

twenty days after a party is notified of a decision that may become final.                           See id. §

2001.146(a) (West 2008). Once a timely motion for rehearing is filed, the decision in a

contested case becomes final on the date that:                  (1) the order overruling the motion for

rehearing is rendered; or (2) the motion is overruled by operation of law.                           See id. §

2001.144(a)(2) (West 2008). An agency must act on a party’s motion for rehearing no

later than forty-five days after the date on which the party is notified of the agency’s

decision, or the motion for rehearing is overruled by operation of law.                             See id. §

2001.146(c).       Only a party who has “exhausted all administrative remedies available

within a state agency” and has been “aggrieved by a final decision in a contested case”

is entitled to judicial review.       See id. § 2001.171 (West 2008). Finally, a party must file

a petition initiating judicial review no later than thirty days after the agency’s decision

becomes final and appealable.             See id. § 2001.176(a) (West 2008).2

        Pedraza filed a timely motion for rehearing on August 12, 2010, within twenty

days of the Board’s decision.          The Board did not rule on Pedraza’s motion for rehearing;

therefore, the Board’s decision to revoke Pedraza’s license did not become a final and

appealable decision ripe for judicial review until September 6, 2010, which is forty-five

days after Pedraza was notified of the revocation, and the date which Pedraza’s motion

for rehearing was overruled by operation of law.                  Rather than wait until September 6,

2010—or within thirty days thereafter—to file his petition for judicial review, Pedraza filed

        2
           Section 2001.176 states that the petition for judicial review must be filed in a Travis County district
court, unless otherwise provided by statute. TEX. GOV’T CODE ANN. § 2001.176(b)(1) (West 2008). More
specifically, the Nursing Practice Act allows an aggrieved party against whom the Board has taken an
adverse action to appeal to a Travis County district court or to a district court in the county of the aggrieved
party’s residence. See TEX. OCC. CODE ANN. § 301.555(a) (West 2004). In this case, Pedraza chose to
file his petition in Hidalgo County, where he resides.


                                                        5
his petition prematurely on August 12, 2010.

       Therefore, our next inquiry turns to whether Pedraza’s premature filing rendered

the trial court without subject matter jurisdiction to address it, as the Board contends.

Under the APA, an aggrieved party may not seek judicial review until the party has

exhausted administrative remedies and the agency’s decision is final and appealable.

See TEX. GOV’T CODE ANN. §        2001.171.    Here, Pedraza’s administrative appeal was

not ripe for judicial review at the time it was filed because the Board’s decision was not

final and appealable at that time. The Texas Supreme Court held under the APA’s

predecessor statute that exhaustion of administrative remedies “is a jurisdictional

prerequisite to judicial review by the district court and cannot be waived by action of the

parties.” Lindsay v. Sterling, 690 S.W.2d 560, 563–64 (Tex. 1985).       This holding was

also adopted in a recent decision from the Austin Court of Appeals involving similar facts

to the case at bar.     See Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 567

(Tex. App.—Austin 2008, pet. denied). In Marble Falls, a party filed suit seeking judicial

review of an administrative decision while a motion for rehearing was still pending.

See 275 S.W.3d at 560–61. The Austin Court upheld the trial court’s grant of the plea

to the jurisdiction and concluded that judicial review of an administrative decision is

granted only by statute and only when a party has satisfied the APA’s full administrative

process.   Id. at 567–68.

       We find Marble Falls indistinguishable from the present case and likewise follow

the holding in Lindsay.       Pedraza’s failure to exhaust his administrative remedies

rendered the trial court without jurisdiction to act on his administrative appeal, and this

defect was incurable.     See Lindsay, 690 S.W.2d at 563–64; Marble Falls, 275 S.W.3d at


                                              6
567–68. Therefore, the trial court erred by failing to grant the Board’s plea to the

jurisdiction and failing to dismiss Pedraza’s petition for judicial review.

C.      Pedraza’s Remaining Claims3

        Despite our conclusion that the trial court was without jurisdiction to address

Pedraza’s petition for judicial review, we now examine whether the trial court had

jurisdiction to address Pedraza’s remaining claims of due process violations and

defamation.

        The Board argues that the trial court lacks subject matter jurisdiction to address

Pedraza’s claims of due process violations and defamation.                      Pedraza disagrees and

requests that we remand those claims to the trial court for further proceedings.                       As a

general rule:

        [i]f a claim is not within a court's jurisdiction, and the impediment to
        jurisdiction cannot be removed, then it must be dismissed; but if the
        impediment to jurisdiction could be removed, then the court may abate
        proceedings to allow a reasonable opportunity for the jurisdictional problem
        to be cured.

Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001). In Fodge, the Texas

Supreme Court held that some of a party’s common law and statutory causes of action

should be abated for further proceedings with the Texas Workers’ Compensation

Commission’s exclusive jurisdiction first, in order to cure the trial court’s lack of subject

matter jurisdiction. See id.; see also Subaru of Am., Inc. v. David McDavid Nissan, Inc.,

84 S.W.3d 212, 228 (Tex. 2002) (remanding to the trial court with instructions to abate its


        3
           The Board contends that (1) the trial court is also without subject-matter jurisdiction to hear
Pedraza’s remaining claims and (2) that these jurisdictional arguments may be raised for the first time on
appeal. We agree. See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (“Because
subject matter jurisdiction is essential to the authority of a court to decide a case, it cannot be waived and
may be raised for the first time on appeal.”). Accordingly, we will address the Board’s additional
jurisdictional challenges to Pedraza’s other claims.

                                                      7
proceedings until party exhausted administrative remedies with regard to statutory and

common-law causes of action to obtain final agency findings that support those claims).

       a. Due Process Claim

       The Board argues that Pedraza’s due process claims are essentially derivative of

his petition for judicial review and should be dismissed for lack of subject-matter

jurisdiction. We disagree.

       In his pleadings, Pedraza asserts that the Board’s revocation of his nursing license

was “retaliatory in nature” and a violation of his right to procedural due process by

interfering with his property rights and vocational nursing license. Pedraza does not

allege, however, what specific property right or interest, if any, is involved, and what

process is due. See City of Dallas v. Saucedo-Falls, 268 S.W.3d 653, 663–64 (Tex.

App.—Dallas 2008, pet denied) (reversing trial court’s denial of a plea to the jurisdiction

on a party’s due process claim against the City of Dallas and remanding to the trial court

for further proceedings because the party did not plead what process they were due).

Based on our review of Pedraza’s pleadings, he does not affirmatively invoke the trial

court’s jurisdiction over this particular claim. However, Pedraza’s pleadings also do not

affirmatively demonstrate incurable defects in jurisdiction. See Miranda, 133 S.W.3d at

226–27. The trial court must therefore give Pedraza an opportunity to replead and cure

the pleading defect in his due process claim to demonstrate the trial court’s jurisdiction.

See id.; Saucedo-Falls, 268 S.W.3d at 664.

       b. Defamation

       The Board also argues that the trial court is without jurisdiction to hear Pedraza’s

claim for defamation because the Board is shielded under the doctrine of sovereign


                                             8
immunity. We agree.

        In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction

for lawsuits in which the state or certain governmental units have been sued unless the

state consents to suit.        Miranda, 133 S.W.3d at 224.             The Texas Tort Claims Act

provides a limited waiver of sovereign immunity to “governmental units” within the State

of Texas.     See id; TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3) (West 2011). 4

Therefore, the Board is immune from suit unless the Tort Claims Act expressly waives

immunity.     See Miranda, 133 S.W.3d at 224–25.                  The Tort Claims Act expressly

waives sovereign immunity in three areas:                  use of publicly owned automobiles,

premises defects, and injuries arising out of conditions or use of property.                 Id. at 225;

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2011).

        Pedraza’s defamation cause of action is a tort in which a plaintiff must prove that

the defendant: (1) published a statement; (2) that was defamatory concerning the

plaintiff; (3) while acting with either actual malice, if the plaintiff was a public official or

public figure, or negligence, if the plaintiff was a private individual, regarding the truth of

the statement.        See WFAA-TV v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

Because immunity is not waived for the tort of defamation under the Tort Claims Act, the

Board is immune from suit under the doctrine of sovereign immunity.                      See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.021; Miranda, 133 S.W.3d at 224. Accordingly, the trial

court is deprived of subject matter jurisdiction to hear Pedraza’s defamation claim.                 See


        4
          A “governmental unit” is partially defined as “all departments, bureaus, boards, commissions,
offices, agencies, councils, and courts” that collectively constitute the government of this state. See
TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(A) (West 2011). Because the Texas Board of Nursing is a
board created by statute with rulemaking authority to regulate the practice of professional and vocational
nursing, see TEX. OCC. CODE ANN. § 301.151 (West 2004), we conclude that it is a “governmental unit” for
purposes of the Texas Tort Claims Act.

                                                    9
id.

       In summary, we sustain the Board’s first issue and conclude that the trial court

erred in failing to grant the Board’s plea to the jurisdiction and order dismissal with regard

to Pedraza’s petition for judicial review.      With regard to the remaining claims:         (1)

Pedraza must be given an opportunity to replead his due process claim to demonstrate

that the trial court has jurisdiction to hear it; and (2) Pedraza’s defamation claim should

be dismissed under the doctrine of sovereign immunity.5

                                    III.   CONCLUSION

       We reverse the trial court’s denial of the Board’s plea to the jurisdiction over

Pedraza’s petition for judicial review, and we render judgment dismissing the petition for

judicial review and claim for defamation. We affirm the remainder of the judgment and

remand to the trial court to allow Pedraza an opportunity to amend his pleadings and

demonstrate the trial court’s jurisdiction with respect to this due process claim.




                                                           __________________________
                                                           GINA M. BENAVIDES,
                                                           Justice


Delivered and filed the
31st day of August, 2012.




       5
        Because we have sustained the Board’s first issue, we need not address the Board’s second
issue. See TEX. R. APP. P. 47.1.

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