*2 POWERS, KIDD, Before JONES and JJ. KIDD, Justice.
Appellee State Board Medical (the “Board”) suspended Examiners Bernard year, J. pro- Dolenz’ medical license for one bated. The district court Dolenz’ dismissed suit for review the order on basis that motion for before the appeals Board was insufficient. Dolenz dismissal, urging points er- four ror. We will or- reverse district court’s der of dismissal. one,
In error Dolenz asserts holding that the district had eourt erred it jurisdiction because his motion for rehear ing before was insufficient. response original petition, to Dolenz’ plea jurisdiction to Board filed assert ing: re “Dolenz failed file a hearing containing specific assertions of by error committed in its Board decision during oral advanced the first time argument deprives at trial That failure [sic]. jurisdiction [the district] court to consider jurisdiction those claims.” complains specificity of mo rehearing; tion for did Board not assert file a Dolenz failed to motion for rehear ing untimely.1 or that the motion was resulting district-court order states: Upon pleadings and consideration of the presentation arguments par- both ties, opinion of this Court that it has no over the administrative of the Order entered the Texas 1. The also asserts claims issue here. sovereign immunity and official that are not at Examiners, pleaA contests Board of Medical due State subject authority to fact determine Motion Rehear- the court’s [Dolenz’] Board, v. Bena ing, matter of the cause action. State filed at was insufficient. vides, . —Cor ORDERED, *3 is therefore AD- denied); 1989, v. pus writ Schulz Christi ad- AND DECREED that the JUDGED 256, Schulz, (Tex.App 726 S.W.2d 257 . —Aus dismissed for lack ministrative is writ). 1987, plea no The raises incurable tin jurisdiction. which are shown on defects pleadings, taking a the plaintiffs the face of 2001.145of the Administra Section Bybee v. allegations as true.3 pleadings’ provides Act tive Procedure 429, Co., Ins. 160 Tex. 331 Fireman’s Fund rehearing prerequisite for to a motion 910, (1960); Washington Fort 917 v. S.W.2d judicial review order. suit of an Dist., 156, Indep. 159 Bend Sch. 892 S.W.2d (“APA”), Act Tex. Administrative Procedure 1994, (Tex.App. [14th Dist.] writ — Houston (West 1995).2 2001.145(a) § Gov’t Code Ann. denied). taken, If well the purpose of a an plea the and dismiss the cause. Tex sustain provide to an order is notice 486, Jarrell, Highway Dep’t 418 S.W.2d party that a is dissatisfied a final order with (Tex.1967). 488 a cause of action de When party and that will if the the seek review statute, statutory provisions from a rives ruling changed. Corp. is not Suburban Util. mandatory exclusive and must be Comm’n, 358, v. Public 652 S.W.2d 364 Util. with; otherwise, action complied is not (Tex.1983); Vandy see United Ass’n Sav. jurisdic lacks maintainable because 163, griff, 594 S.W.2d 168-70 Dist., (Tex.Civ.App.—Austin Indep. Tolar Sch. tion. Grounds v. n.r.e.). 1980, supreme refd writ 889, Mingus v. 707 S.W.2d 891 court has re determined that motion for 551, 1084, Wadley, 115 Tex. 285 1087 S.W. hearing sufficiently ap must “be to definite (1926); Hosps. v. Texas Workers’ Methodist prise regulatory agency of the error Comm’n, 144, Compensation 149 874 S.W.2d agency opportunity claimed and to allow the 1994, (Tex.App. no Accord correct or prepare to the error to to defend — Austin judicial ingly, party seeking whether a Corp., it.” Suburban Util. 652 at S.W.2d complied an rehear 365; Long accord Texas Distance Ass’n of 2001.145(a) ing requirement of section Comm’n, Tel. Cos. v. Public Util. 798 S.W.2d may subject properly plea APA be the of a 875, 1990, (Tex.App. 881 de writ — Austin jurisdiction. County See Ector Comm’rs nied). Accordingly, a motion must set out Agency, Educ. 786 Central S.W.2d requirements pertaining two to each conten 1990, 449, (Tex.App. writ de 541 (1) particular ruling tion: or action of the — Austin 144, nied); Vandygrijf, 578 S.W.2d Mahon v. agency that the movant asserts was errone (T 1979, ex.App.— writ refd 147—48 (2) legal ous and basis which Austin n.r.e.). Morgan Employees’ claim of error rests. (Tex. Sys., Retirement 821 1994, writ); Furthermore,
App. Burke v. Cen motion — Austin Agency, may general tral Educ. 396-97 be so that the motion fails com n.r.e.). (Tex.App. pletely rehearing. as a Ham refd See — Austin amcy Bd. The Board’s assertion that Dolenz’ motion v. Texas State Medical Examin ers, satisfy require did not these . —Austin h.). instance, plea ments was the sole basis of its to the no writ suit subject jurisdiction. to dismissal for challenge plea opinion this are to current 3. A to the can also 2. All citations in jurisdictional accuracy pleaded facts the for- or truth of Administrative Procedure Act rather that Regis- plaintiff, in which case evidence of such mer Administrative Procedure Act, presented. 2 Texas Civil Prac- ter because the recent codification did not facts must be See (Diane eds., ed.). change substantively M. Allen et al. the law. Act of tice Here, R.S., plea Leg., assert the Board’s did not such 73d ch. challenge. Gen.Laws Id.; intent, jurisdiction. See looking want Testoni v. favor and to his we conclude Shield, Blue Cross & Blue incorrectly granted that the district court writ) (one- plea Board’s to the on the basis — Austin insufficiency pre sentence motion was not the motion for sufficient rehear- ing. Business, jurisdiction). provide serve or See Texas Ass’n error Accord 446; at ingly, Liberty Ins. Mut. we consider whether the district court S.W.2d at 736. Because we have determined granted plea the Board’s to the incorrectly granted district jurisdiction on proceeding. that basis this jurisdiction, we sustain Dolenz’ first of error. deciding grant “In whether the trial court must *4 error, In point his second of Dolenz solely look allegations petition.” to the in the contends the district court erred in not Liberty Ins. v. Sharp, Mut. Co. 874 S.W.2d granting summary his for judgment motion 736, 1994, (Tex.App. writ de — Austin against on his claims the board. The tran nied); Watson, see Green 860 S.W.2d script overruling does not an include order 240 n. 2 (Tex.App. — Austin summary judgment. motion for Further reviewing a granting When trial court order more, appellate an court cannot review a jurisdiction, a to the an appellate court overruling court’s action a motion for sum pleadings “construe[s] favor of the mary judgment when the trial court has ren plaintiff pleader’s look[s] and to the intent.” dered an order of dismissal. Ackermann v. Texas Ass’n Business Air Con of Vordenbaum, Bd., (Tex.1993) trol Nuby see Allied Bankers Ins. Life (quoting Deposit Huston v. Federal Ins. — Austin Corp., 129 (Tex.App . —East writ). We overrule the second of error. n.r.e.)); land writ ref d North see Ala of Points error three and four are directed Supply Corp. Dep’t mo Water v. Texas of to the Board’s order. Because the district Health, . —Aus issues, court did reach these we do not denied). tin points. address these original his petition, first amended Do- on Based our determination that the dis- lenz states that a Board order was sent to trict dismissing court erred in for cause 28, 1993; him on November that he filed a want of we reverse the of order timely rehearing for motion on or about De- the district court remand the and cause 3, 1990; cember and that the Board over- proceedings. further rehearing. ruled the Attached to petition copies exhibits are of the POWERS, Justice, dissenting. order, signed 12, 1990, Board’s on November appellate Because the record contains nei- and a motion with the cause original copy ther the nor a certified style number and of the Board order and agency requiring in a case substan- signature, Dolenz’ and on service review, respectfully tial-evidence dissent. the Board on December 1990.4 See Tex. R.Civ.P. 59. The at- requested Dolenz’s cause of action and petition general tached to Dolenz’s is not so remedy purely of creatures statute. completely as to fail They by as motion for rehear- 4.09 of the are authorized section ing. Construing Act, pleadings in Dolenz’ Medical Practice which creates a cause 4. The solely upon dissent contends that we cannot consider based of "consideration appellate Dolenz' tains because the record con- pleadings presentation arguments and of original copy "neither nor a certified added). Thus, parties.” (Emphasis both agency disagree because record[.]” jurisdic- the context of this dismissal for want of appeal. the narrow context of this The Board tion, appellate plead- court must look filed its based Do- ings order and attachments thereto in to deter- sufficiently lenz’ failure to file a definite motion mine erred dis- whether the district court in its rehearing challenging the final Board's order. missal. The district court ordered for lack dismissal doing opposed agency expressly physicians, brought to an of action for to be so; petition court, in district physician when contends the Dolenz’s district filed; copy of legally that the disciplinary was therefore Board’s decision erro- is a petition the motion attached Dolenz’s The district court’s review under neous. filed rule, copy he true the motion which includes substantial-evidence case; that the motion in the contested court’s review “is con- stricture copy in an or certified save for circum- was included fined to the record” in the district record filed not material here. Administrative stances the law Act, presumptions, these Against Code Ann. court.2 Procedure Tex.Gov’t (West 1995)(“APA”).1 2001.174, interposes long-standing §§ in cases .175 rule nothing is disregard require- actions: this reviewing court’s purport this in favor of ment and to exercise Court’s jurisdiction; plaintiff invokes the power who review without allege prove court’s record. complied affirmatively that he or she majority apparently they may believe statutory step court to specified each for the Dolenz do so because attached to district- power given exercise the purported copy petition of motion *5 Wadley, Mingus statute. he filed in the contested case (1926). 285 S.W. 1087-89 agency, they it before while was the the pleas of common-lawrule that recite the common-law rule that to the What then the jurisdiction be generally question generally are determinable from of must alone, petition taking plaintiffs peti- of plaintiffs the true decided the contents the (and allegations plaintiffs copies the its presumably unless these are tion attached documents)? challenged by plea. exclu- dilatory See 2 Texas Common-law actions lie (Diane constitutionally § sively Allen Civil Practice M. et al. within a district court’s ed.). eds., delegated general jurisdiction; thus copy original attached to Do- apply petition original may properly logically is the lenz’s neither the nor courts and jur- copy subject-matter of the the rule that certified motion for so common-law presumed plaintiffs far the as the record indicates. isdiction is unless juris- petition affirmatively to decide the the basis want on of the shows necessarily copy, pre- the diction. But this cannot be the case when plaintiffs copy petition sumed certain that a invokes the district matters limited, juris- agency special, entire record have shown: that court’s and would actually timely purely statu- Dolenz filed a diction hear determine case; tory purely rehearing in the action and to award contested that cause of statutory remedy law.3 by operation motion was overruled of law as outside the common principle” "for the is 1.Judicial review "under the substantial-evidence exclusiveness record reviewing opportunity scope rule” is a term art. It refers to "affords courts full spelled [agency] reviewing Bernard allowed the court as out decision.” evaluate (2d Schwartz, § refers also Law at 368 in APA section 2001.174. Administrative (emphasis added). 1984) procedures ed. for such review as these set out in ap- 2001.175. The latter statute is APA section plicable part 2. are a Motions for here. 2001.060(1). § record. See APA citation, receiving After service of defen- must, required within the time dant answer, present, presump- reviewing is no filing 3. In cases like the "there its "send to the court jurisdiction” "al- tion of in the district court or a certified of the entire record of though general jurisdiction.” Min- proceeding The record shall it is one of under review. Similarly, gus, there is court.” at 1089. be filed with clerk of the APA 285 S.W. 2001.175(b) added). ap- (emphasis presumption court on "A in our court shall jury pellate our own sitting and we must ascertain the review without a and is conduct record, parties make except or whether not the confined complaint may procedural irregu- See Williams receive in connection. evidence State, (Tex.Civ.App. alleged agen- before the larities have occurred —El dism'd). juris- Paso And because our cy in the record.” APA that are reflected 2001.1175(e) added). (emphasis depends whether the district One diction on reason Concerning given, respectfully these causes of action and reme- For the reasons dis- dies, judicial department imposed sent. has keep itself in order to rules different judicial power the courts -within the allotted (1)
them under the state constitution:
reviewing may in act the manner
provided by creating right the statute (2) remedy; nothing
and the jurisdiction {e.g.,
favor nothing of the court’s plaintiffs petition, including allegations WEBB, Appellant(s), necessary to the court’s be Michael (3) true); plaintiff taken as must in consequence prove affirmatively his or her
compliance statutory step specified with each Texas, Appellee(s). The STATE of power for the court’s exercise of its of review No. 10-94-237-CR. {e.g., plaintiff prove that he or she agency proceeding filed mo- Texas, Appeals rehearing). tion for See Bullock Amoco Waco. Prod. 1087-89; Mingus, at Arnold S.W. W.H. III, Pleading and Jurisdic- Courts — Proof of Facts, (1949).
tional 27 Tex.L.Rev. 386-87
For proof want of an *6 jurisdictional
not before us facts to be true. correctly be that the trial court
dismissed Dolenz’s cause of action though want of even gave wrong doing reason for so. example, may pur-
For be that Dolenz’s
ported was not filed in maimer in the If contested case. true, the trial court’s dismissal for
want of would be correct even
though its stated reasons are invalid. We obliged
would then be to affirm the trial- Williams, judgment. Reiche (1945). 365,185 cannot, S.W.2d 420
therefore, perform properly our
function without the record. would therefore abate the
direct clerk district court
furnish us the or certified pursuant record filed the cause 2001.175(b). Tex.R.App.P.
APA section See 55(c).
51(d), subject-matter jurisdiction, had we must ascer- below but to whether the record shows tain, any acquired presumptions, affirmatively sub- without the aid wheth- that the district Mingus, jurisdiction. ject-matter jurisdiction. 285 S.W. at er that court had tion, In that connec- plaintiff's allegations we look not