Recent Opinion Reinforces Difficulty—and Importance—of Ensuring Correct Deadlines Are Followed in Administrative Proceedings

September 18, 2018

A recent opinion from the Third Court of Appeals in Austin highlights the importance of double-checking deadlines to ensure all administrative remedies are exhausted before filing a lawsuit for judicial review of a state agency ruling.  Otherwise, judicial review is jurisdictionally barred. The opinion also serves as a general reminder that these deadlines can vary based on the specific procedural rules in effect, and whether those rules have been recently amended.

In Fisher v. Public Utility Commission of Texas, 549 S.W.3d 178 (Tex. App.—Austin 2018, no pet.), Appellants wished to judicially challenge an order by the PUC that approved the transfer of a certificated water service area from one governmental entity to another. However, the trial court found that Appellants’ lawsuit was jurisdictionally barred because they had not timely filed a motion for rehearing, as required by Texas Government Code § 2001.145(a), to exhaust the administrative process.

The PUC had approved the application for transfer on January 13, 2016, and the Appellants filed their motion for rehearing on February 5, 2016—24 days later. At that time, an amended version of Texas Government Code § 2001.146(a)—which the Legislature passed in 2015—was “on the books” and provided for a 25-day deadline to file the motion. Appellants relied on this deadline to argue that their motion had been timely filed. However, the Legislature specified that the amended statute—and, thus, the 25-day deadline—applied only to an administrative hearing that was set on or after September 1, 2015. Because the hearing in the Appellants’ matter had been set to begin at the State Office of Administrative Hearings on July 20, 2015, the old, 20-day deadline applied to Appellants’ motion for rehearing. Thus, the motion had been filed four days late, and the court of appeals affirmed the trial court’s dismissal of the lawsuit on the ground that it was jurisdictionally barred for failure to exhaust administrative remedies.

While this particular fact pattern is unlikely to repeat itself given that the 25-day deadline is now in effect for all hearings set on or after September 1, 2015, Fisher demonstrates that litigants must ensure that they are abiding by the correct deadlines at all stages of the administrative process. This can be a complex endeavor, in part because of the interplay between agency-specific rules and SOAH’s administrative rules. However, because failure to abide by the correct deadline can prevent a party from obtaining judicial review of an adverse ruling, this effort is crucial.