Raghunath Dass, P.E. v. Texas Board of Professional Engineers
03-14-00552-CV
Tex. App.May 26, 2015Background
- Appellant Raghunath Dass, a licensed professional engineer, challenges the Texas Board of Professional Engineers (TBPE) Amended Final Order dated November 21, 2013.
- The TBPE entered the Amended Final Order while a prior Final Order was under judicial review; appellant contends the amendment violates Tex. Gov’t Code §2001.1775.
- The Amended Final Order contains findings accusing Dass of failures related to construction materials testing (CMT) (three conclusions of law addressing CMT conduct).
- Appellant argues TBPE lacks statutory authority to regulate non‑engineering construction materials testing (CMT) and that TBPE’s advisory opinions (2005/2009 CME guidance) improperly expand its jurisdiction.
- Appellant also contends a Conclusion of Law (No. 7) improperly reaches competitive‑bidding issues under the Professional Services Procurement Act (PSPA).
- Procedural posture: this document is Appellant’s reply brief to TBPE’s appellee brief, asking the court to declare the Amended Final Order void, reverse the district court’s affirmance, and remand.
Issues
| Issue | Plaintiff's Argument (Dass) | Defendant's Argument (TBPE) | Held (Relief Sought / Position in Reply) |
|---|---|---|---|
| 1. Agency amendment during judicial review | TBPE’s Nov. 21, 2013 Amended Final Order is void because §2001.1775 bars any modification once judicial review is pending. | TBPE argues appellant waived the point by imperfect prayer and raises merits defenses (rehearing adequacy, res judicata, conformity). | Court should find the Amended Final Order void and reverse/remand because statute deprives TBPE of authority to amend while appeal pending. |
| 2. Subject‑matter jurisdiction over CMT | TBPE lacks statutory authority to regulate construction materials testing; CMT is not "professional engineering" under TEPA, so Amended Final Order is void ab initio. | TBPE asserts it may interpret scope of practice (points to advisory opinion treating some CMT as CME) and therefore has discretion to regulate. | Court should hold TBPE exceeded statutory authority; actions regulating CMT are void and subject to collateral attack. |
| 3. Authority to restrict bidding (PSPA) | Conclusion of Law No. 7 exceeds TBPE authority: the PSPA/TEPA do not convert CMT into professional services requiring bidding restrictions; findings actually show TSI Labs performed CMT, not CME. | TBPE contends it did not exceed authority in concluding a PSPA violation and that appellant failed to preserve error. | Court should declare Conclusion No. 7 beyond TBPE jurisdiction and reverse the related portions of the Amended Final Order. |
| 4. Other issues (Issues 4–6) | Appellant stands on original brief; contends those issues were adequately briefed. | TBPE’s responses addressed these in appellee brief. | Appellant requests relief on Issues 1–3 and stands on prior arguments for Issues 4–6. |
Key Cases Cited
- Marincasiu v. Drilling, 441 S.W.3d 551 (Tex. App.—El Paso 2014) (failure to include particular prayer language does not bar appellate relief when issue is plainly presented)
- Railroad Comm’n of Tex. v. Cont’l Bus. Sys., Inc., 616 S.W.2d 179 (Tex. 1981) (agency may not change an order after it loses jurisdiction by an appeal)
- Save Our Springs Alliance v. City of Kyle, 382 S.W.3d 540 (Tex. App.—Austin 2012) (an agency lacks authority to modify an original order once suit for judicial review is filed)
- Republic Underwriters Ins. Co. v. Mex–Tex, Inc., 150 S.W.3d 423 (Tex. 2004) (appellate rules should be construed reasonably and liberally to avoid forfeiture by form)
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (appellate rules and reasonable construction regarding briefing)
- Kaspar v. Thorne, 755 S.W.2d 151 (Tex. App.—Dallas 1988) (procedural defects in prayer may be cured; relief may be granted on meritorious points)