1. EFFECTIVE REPRESENTATION ON MOTIONS FOR REHEARING Leonard H. Dougal Travis Wussow AUSTIN BAR ASSOCIATION ADMINISTRATIVE LAW SECTION ANATOMY OF A CONTESTED CASE HEARING March 5, 2010 Leonard H. Dougal Jackson Walker L.L.P. ldougal@jw.com 512.236.2000

2. 2 Roadmap Path to the motion for rehearing Purpose of the motion for rehearing Practice tip: Consider your audience Condition precedent for judicial review Timing issues Specificity required in a motion for rehearing Replies to motion for rehearing Agency response to motion for rehearing Exceptions to requirement of filing motion for rehearing Timing of filing petition for judicial review

3. 3 Path to the Motion for Rehearing Hearing before the ALJ has been completed ALJ has issued Proposal for Decision (and you were poured out) Exceptions have been filed (and ignored) Commission considered the PFD and your exceptions and ruled against you

4. 4 Purpose of the Motion for Rehearing Another chance to convince the agency Provide agency with notice that a petition for judicial review may be filed Exhaust administrative remedies Normally, condition precedent for judicial review Tex. Gov’t Code §§ 2001.144,.145

5. 5 Practice Tip: Consider Your Audience Who is your audience? –Agency that made initial action? –District court where petition for review will be heard? –Both? Balance between elements: –Deference vs. challenge –Politics vs. law

6. 6 Condition Precedent for Judicial Review If agency has: –(1) rendered an order that is substantively final –(2) notified all parties of that rendition; and –(3) served all parties personally or by first-class mail with a written copy of the order, Motion for rehearing must be filed before an adversely affected party may seek judicial review Beal, Texas Admin. Practice and Procedure Tex. Gov’t Code § 2001.144 Temple I.S.D. v. English, 896 S.W.2d 167, 169 (Tex. 1995)

7. 7 Timing Issues Filing the Motion for Rehearing Motion for rehearing must be filed no later than the 20th day after the party received notice of the agency’s order –Tex. Gov’t Code § 2001.146(a) –This APA requirement on timing supersedes any other provision in an agency’s enabling statute, particularly if the enabling statute includes language that the agency’s actions will be governed by the APA Mednick v. Bd. of Pub. Accounting, 922 S.W.2d 337– 38 (Tex. App.—Austin 1996) Issue: When does a party receive notice?

8. 8 Notice of Agency Decision

9. 9 Timing Issues Filing the Motion for Rehearing Scenario 1: Party is notified of the agency order when it is received in the mail (party not present when the agency board renders decision) Presumption: APA mandates a presumption that notice was received on the third day after the day the order was mailed –Tex. Gov’t Code § 2001.142(c) Rebuttable presumption: Presumption may be rebutted with sufficient evidence that notice was not received until a later time

10. 10 Timing Issues Filing the Motion for Rehearing Scenario 2: Party receives oral notice (“notified personally”) of the agency’s decision because the party was present when the decision was rendered “Safe” rule: 20-day period commences on the date of the oral rendition of the decision Undecided issue: Can a party rely on the APA and file within 23 days, even if the party was present at when the decision was rendered? Has not been decided by the Texas Supreme Court or the Austin Court of Appeals. Review enabling statute: Where the enabling statute requires written notice of agency action, parties may have 23 days to file motions for reconsideration. –See Young Chevrolet Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906, 910 (Tex. App.—Austin 1998, writ denied).

11. 11 Timing Issues Filing the Motion for Rehearing Scenario 3: Party receives oral notice of the agency decision when the decision was rendered, safely files motion for rehearing within 20 days of agency decision, and subsequently receives written notice of the agency decision “Safe” rule: File a second motion for rehearing after receiving the written notice of agency decision Alternate approach: Austin Court of Appeals has held that prematurely filed motion for rehearing is dated by operation of law to the date of the agency decision; but the prudent approach is to re-file the motion for rehearing –El Paso Electric Co. v. Public Utility Comm’n of Texas 715 S.W.2d 734 (Tex. App.—Austin 1986, writ ref’d n.r.e.)

12. 12 Specificity in Motion for Rehearing Agency notice: Motion must be sufficiently specific to put the agency on notice of the error claimed in order to give the agency the opportunity to correct or defend Analogy to motion for new trial: Issues not raised in the motion may be waived For each allegation: –Identify the finding of fact, conclusion of law, or order that is alleged to be incorrect –Set forth the legal basis for the error

13. 13 Replies to Motion for Rehearing Timing: No later than 30 days after that party has received notice of the agency order –Tex. Gov’t Code § 2001.146(b) –Note that this can create the absurd situation where a reply is required before the initial motion for reconsideration is required –Agency can cure this issue by setting alternate time table for filing replies Substance: No case law on point, but replies should follow the substantive format for motions for rehearing

14. 14 Agency Response to Motion for Rehearing Default: If agency takes no action by the 45th day after notice of the order, the motion for rehearing is overruled by operation of law Extension: Agency by written order, may extend: 1) time for filing MFR, or 2) time for agency action (but not beyond 90 th day) Best practice: Agency GC issues letter advising parties MFR was overruled Modify by Agreement: With consent of the Agency, the parties may modify the deadlines by written agreement –See Tex. Gov’t Code §§ 2001.146(e), 2001.147

15. 15 When Is a Second Motion for Rehearing Required? Issue: In response to motion for rehearing, agency modifies original order Conflicting case law: The Austin Court of Appeals has held that any change requires a second motion for rehearing; the Texas Supreme Court has issued a splintered per curiam opinion that confuses the case law by stating that a minor modification could be treated as a “denial” of a motion for rehearing –See Southern Union Gas Co. v. R.R. Comm’n of Tex., 690 S.W.2d 946, 948–49 (Tex. App.—Austin 1985, writ ref’d n.r.e) –See Consumers Water, Inc. v. Public Utility Comm’n of Texas, 741 S.W.2d 348 (Tex. 1987) Best practice: If any change has been made to agency order: –File a second motion for rehearing before filing petition for review –File petition for review in district court –File second petition for review in district court after second motion for rehearing is overruled expressly or by operation of law

16. 16 Exceptions to the Requirement to File a Motion for Rehearing Imminent peril: State agency finds that an imminent peril to the public health, safety or welfare requires the decision to be immediately effective on the date the decision is rendered –Agency must: recite in its order the finding of “imminent peril to the public health, safety, or welfare” expressly state in the order that it is “final and effective on the date rendered” –If two conditions are not met, party should file motion for rehearing before seeking judicial review –See Tex. Gov’t Code §§ 2001.144(a)(3), 2001.145 Finality by agreement: The parties may agree that a decision is final either in writing or on the record; with this agreement, no motion for rehearing is needed –See Tex. Gov’t Code § 2001.144(a)(4)

17. 17 Timing of Petition for Review Enabling Statutes Practice tip: Don’t rely on the APA; always check the enabling legislation of the agency you are practicing before Complicated procedural scenarios can arise when the agency’s enabling legislation conflicts with the APA Key issue: Language in the enabling statute requiring appeal to be filed before the agency can decide on a motion for rehearing

18. 18 Timing of Petition for Review Texas Water Code A person affected by a ruling, order, or decision of the commission [or the executive director] must file his petition [for review] within 30 days after the effective date of the ruling, order, or decision. Texas Water Code 5.351(b)

19. 19 When is the Effective Date of an Agency Order?

20. 20 Agency: TCEQ Facts: –Texas Water Code § 5.351(b) requires filing of appeal within 30 days of the “effective date” of agency decision –Agency ED signed Permit; Appellants filed motion to overturn (“MTO”) ED’s decision on Permit, which was denied, then filed petition for review in district court –By rule, ED’s decision is “effective” when Permit is signed –Court found appeal was NOT timely, Appellants should not have waited until after MTO was denied to file petition for review Walter West v. Texas Comm on Env. Quality, 260 S.W.3d 256 (Tex. App.—Austin 2008) Timing of Petition for Review West v. TCEQ

21. 21 Agency: TNRCC/TCEQ Facts: –Texas Water Code § 5.351(b) requires filing of appeal within 30 days of the “effective date” of agency order –30 days after the “effective date” of the order was before the TNRCC could rule on motion for rehearing –Court assumed that the “effective date” of the order was the date notice of the order was mailed –Coalition filed motion for rehearing within 30 days of the effective date of the order but before the TNRCC had ruled on its motion for rehearing Heat Energy Advanced Technology, Inc. v. West Dallas Coalition for Environmental Justice, 962 S.W.2d 288 (Tex. App.—Austin 1998) Timing of Petition for Review Heat Energy Advanced Technology, Inc.

22. 22 Timing of Petition for Review Heat Energy Advanced Technology, Inc. Uncertainty surrounding the “effective date” of the TNRCC’s order: A key issue was whether the effective date of the order was when the order was mailed or after the motion for rehearing process Issue: Did the District Court have jurisdiction to consider the appeal, because appeal to district court was filed before motion for rehearing was considered by TNRCC and the Texas APA requires appeals to be filed after motion for rehearing? Holding: Court of Appeals held that district court did have jurisdiction, taking the position that the effective date of the order was when notice was mailed and that the coalition tried to fully comply with the enabling statute

23. 23 Timing of Petition for Review Marble Falls ISD v. Scott Facts: Annexation of property by Marble Falls ISD –Marble Falls ISD filed petition for review after administrative decision was final but two days before motion for rehearing was decided upon Issue: Did the HEAT case loosen the rules for filing motion for rehearing? Holding: No. District court had no jurisdiction to hear the administrative appeal, because it was prematurely filed. If APA provisions apply and there are no statutory conflicts for judicial review, the Appellant must strictly follow statutory deadlines. Marble Falls ISD v. Scott, 275 S.W.3d 558 (Tex. App.—Austin 2008)

24. 24 Timing of Petition for Review Statutory Conflict Best practice: If conflict, file two petitions for review to the district court: –File within 30 days of the effective date of the Agency’s order, requesting that the court stay the proceeding until the motion for rehearing has been heard –File a second petition after the motion for rehearing has been denied, requesting that the two suits be joined and that the district court reinvoke its jurisdiction

25. QUESTIONS? Leonard H. Dougal Jackson Walker L.L.P. ldougal@jw.com 512.236.2000 25