*1 signеd Gonzalez, if require- TRO there were no hour of its issuance. ment that the trial court endorse the hour at 437. We held the statute did not re- on the TRO itself. The quire endorsement re- specificity such and said the purpose quirement establishes when the TRO be- requirement magistrate effective, came simplifying any litiga- thus endorse the date and hour of the warrant’s tion an alleged over violation of the TRO. provide issuance was to certainty more example, For if signed the trial court to when a search actually warrant was prevent TRO at 10:00 a.m. to the demoli- issued. Id. at 438. We concluded that the building, tion of a building but the was warrant was valid midnight until a.m., demolished an hour earlier at 9:00 day fourth after its issuance. Id. clearly then was not TRO violated. applies equal- rationale of Gonzalez Walkup’s interpretation and Newton’s ly to Rule policy 680. The behind the days” “fourteen as fourteen 24-hour peri- requirement endorsement is to provide ods from signing of the TRO would certainty as to the time of issuance of the grant any force the trial court to extension TRO, running not to start the of the TRO’s expiration before the 24- of the fourteenth fourteen-day length. maximum (“unless period. hour Tex R. Civ. P. 680 Conclusion
within the time so fixed cannot [which order, exceed days] good fourteen Rule 680 allowed the district court to shown, extended.”). cause We decline extend the TRO because the TRO to adopt interpretation that would re- expired had not when the extension was quire the trial court daily to schedule its granted. correctly This Court denied docket around such deadlines. Walkup’s emergency and Newton’s motion temporary relief because the district
Our Court has reached a similar conclu- court did not abuse its discretion ex- sion in determining long how a search tending the TRO. State, warrant is valid. v. See Gonzalez 437-38 We dismiss as moot the for writ Gonzalez, pet.). [1st Dist.] of mandamus. interpreted Code of Criminal Procedure 18.06(a)
articles and 18.07. Tex.Code CRiM. 18.06(a), (Vernon arts. ANN.
PROC. 1977). Article 18.07 requires magis-
trate to “endorse such search warrant
the date and hour of the issuance of the HARRIS COUNTY EMERGENCY 18.06(a) same.” rеquires peace Article SERVICES # DISTRICT officer to execute the warrant “within Appellant, days three from the time of its issuance” requires unless the warrant a shortened MILLER, Appellee. Robert E. period. Article 18.07 also states that the “time allowed for the execution of a search No. 01-00-00846-CV. days, warrant shall be three whole exclu- Texas, Court of day sive of the of its issuance and of the (1st Dist.). Houston day of its execution.” Aug. question Gonzalez was whether a search warrant must be executed no lаter
than period the 24-hour that comes after days three whole from the date and *2 January
mer 2003 is vacat- aside, annulled, ed, set with- previous our opinion draw that date in its substitute this stead. *3 appeal, HCESD four asserts issues on contending that the trial court erred entering its that it impliedly finding order Oviatt, Payte, Gerald K. Payte Janice jurisdiction Houston, personal lacked either over Payte P.C., & for Kologinczak, subject-matter jurisdiction or Miller over appellant. appeal. HCESD’s We reverse the trial Ford, Nizialek, Teresa L. De Rathwell & court’s order of dismissal for lack of sub- Woodlands, Anderson, Timothy Cox jurisdiction ject-matter judg- and render Austin, for appellee. ment, merits, on take HCESD submission, On consisted nothing. RADACK, of Chief Justice Justice DUGGAN,* Background and former Chief Justice SCHNEIDER.** paramedic a for working While as Emergency HCESD’s Medical Service EN
OPINION ON BANC (EMS) Team, Rapid in- Response Miller RECONSIDERATION jured lifting patient. his He be- back (Retired). DUGGAN, JR, LEE Justice approximately came disabled injury, months. After his Miller learned Appellant, Emergency Harris County provide that HCESD workers’ did (HCESD), # 1 a state Services District any compensation insurance benefits under subdivision, political appeals the district La- options by of the three mandated dismissing with its prejudice 504.011(1)- § bor Code. Ann. review an award of (3) (Vernon 1996).1 Initially, HCESD Miller, by Robert E. appellee, benefits claimed that it did not because Compensation the Texas Com- Workers’ oversight paid and Miller medical some (TWCC). 23, 2003, January mission On benefits, eventually expenses and but opinion reversing this Court issued an paying him. stоpped trial court’s order of dismissal. In an or- however, this February der dated A. The Benefit-Review Conference Court, motion, en banc and its own appeal. Miller filed a TWCC claim for benefits granted reconsideration of this Tex.R.Apf. income, for- claims did P. 49.7. This Court’s which HCESD * Jr., Duggan, compensation employees. See retired Jus- benefits to its The Honorable Lee tice, Appeals, First of Texas political § Court of District sub 504.011 ("A Tex. Lab.Code Ann. Houston, participating assignment. compensation divisiоn extend workers' shall ** Schneider, employees....”). Section benefits its The Honorable Michael H. former Justice, political Appeals, Chief Court of First District 504.011 further Houston, appointed Texas as a Jus- to com subdivision has but three alternatives Texas, resigned Supreme tice of the Court of "(1) becoming ply duty, this follows: September as Chief of this Court on Justice self-insurer; (2) providing insurance under participate and did not (3) policy; compensation enter a workers' case, the en which wаs banc Court agreement ing other into an interlocal that date. submitted before providing political for self-insur subdivisions duty imposes mandatory Section l(l)-(3). 504.011 §Id. ance.” political provide workers’ subdivision by statute do required officer at ben- it was challenge. although efit-review conference2 determined so. Tex. Lab.Code (1) (Vernon 1996). had a compensable Miller sustained Panel No. TWCC (1) em- injury scope course and of his determining a decision issued (2) ployment; became a self-in- appeal; jurisdiction to hear the surer default it was required because proper; HCESD was venue provide benefits to compensation workers’ provide compensation required workers’ not; employees, its but did (4) having coverage employees; expenses HCESD owed Miller medical work- provide under a insurance income benefits. compensation or to enter into policy ers’ *4 agreement political with other interlocal Hearing B. The Contested-Case self-insurance, as provide subdivisions to challenged HCESD the decision of the Code, by authorized HCESD automati- benefit-review conference at a con- TWCC default, by bene- cally, or extended these ju- hearing,3 disputing tested-case TWCC’s Miller as a fits to self-insurer. See Tex. compensation risdiction to order 504.011(l)-(3). § Ap- Ann. Lab.Code basis that HCESD was non-subscriber. peals compensa- Panel reinstated earlier decision, contested-ease-hearing its ble-injury determination the benefit-re- TWCC overruled the dеtermination of and ordered to view conference HCESD ruled, benefit-review and conference in accor- pay medical and income benefits (1) part,4 wilfully that and HCESD dance the Labor Code and TWCC intentionally pro- with the rules. mandating visions of the Code (2) benefits; compensation workers’ Litigation D.This HCESD nevertheless did not become a Miller; self-insurer and was not liable to timely HCESD filed its jurisdiction and TWCC had neither nor district court for to set review hear timely venue to the case. Miller Appеals aside the TWCC Panel’s decision appealed the hearing contested-case deci- declaratory obtain relief.5 and to Tex. (Vernon 1996) sion to Appeals the TWCC Panel. See § 410.252 Asín. Lab.Code 410.202(a) (Vernon (“A § by fil- Tex. party may seek Lab.Code Ann. review 1996) (“Request for Appeal”; “Response”). ing day suit not later than the 40th after ... appeals the decision of the Appeals C. TWCC Panel 504.011(1) _”); § (providing see also id. a response providing did not Mil- cover- HCESD file to for self-insurer method Panel, appeal Appeals age). ler’s the TWCC (Ver- days § testing
2. af- 410.021-.034 determination within Supp.2003) (governing & injury. non 1996 benefit- ter notice Miller’s conferences). review declaratory sought a con- 5. The relief (Vernon 3. See Tex Lab.Code Ann. 410.151 related struction the Texas Labor and 1996) ("Contested Hearing; Scope”); Case and a declaration that statutes rules and (Vernon 1996) ("Effect §id. of Deci- time in HCESD was not a self-insurer at the sion”). question and that the TWCC did have pay jurisdiction power or to order HCESD injury also TWCC ruled thаt Miller's benefits to Miller his compensable and medical income that HCESD had waived any challenge by alleged injuries. compensability not con- pleading Miller filed a the district ists unless a statute for such re- view, styled Orig- pro- court action violates “Plea Jurisdiction and constitutional cedural process, inal Answer Defendant Robert E. Miller due the constitution suit.”). Thereto,” Subject asserting immunity trial waives the state’s subject- lacked personal both Failed to HCESD Exhaust jurisdiction Following matter over him. Administrativе Remedies jurisdiction, hearing plea pled, among the trial court Miller’s motion to dismiss granted motion Miller’s prejudice. grounds urging subject-mat- dismissed case with other lack HCESD’s appeal report- jurisdiction, The record on contains ter HCESD failed ex- hearing, er’s record haust fail- its administrative remedies states ing request of dismissal no basis response to file a Miller’s ruling. for the contested-case decision with officer’s issue, dispositive In its fourth which is Although required Panel. to do so appeal, HCESD asserts that the dis- Code, section of the Labor by impliedly holding trict court erred respond appeal did to Miller’s HCESD failed to exhaust its administra- *5 to the Appeals Panel. See TWCC Tex. remedies tive within TWCC 410.202(b). § By failing to Lab.Code filing response appeal a to Miller’s to the respond appeal Appeals to the to Miller’s Panel. Panel, comply failed to with one Judicial Review of TWCC Decisions steps progress “successive maturity claim” mandated [Miller’s] agency’s enabling legislation
An de by the аnd thus failed to Labor Code procedures obtaining termines the re remedies. See exhaust its administrative Tex. agency view of decisions. Natural Manasco, Lumbermens Mut. Cas. v.Co. Club, Res. Conservation Comm’n v. Sierra 60, (Tex.1998); Ankrom v. 971 62 809, (Tex.2002). S.W.2d 70 S.W.3d 811 Club, Ltd., 900 Cowboys Dallas Football trial de pro creates a modified novo Code 75, 78, 79-80 (Tex.App.-Dallas S.W.2d only applies cedure review denied). law, 1995, a prior writ Under involving “eligibility for of TWCC actions administrative party’s failure to exhaust its ... income ... benefits.” Tex. 410.301(a) (Vernon 1996); juris- deprived the trial court of § remedies see Al AnN. bertson’s, Sinclair, 958, the ad- challenges diction to consider Inc. 984 v. S.W.2d (Tex.1999). body’s ministrative determinations. 960 551, Mingus Wadley, 115 285 S.W. v. Tex. right Parties have no absolute overruled, (1926), Petroleum 1084 Dubai order; challenge administrative (Tex.2000); Kazi, 71, Co. v. 12 76 S.W.3d only arises right when Club, Ltd., 900 Cowboys Dallas Football it, adversely the order statute creates S.W.2d at 79-80. property right, affects a vested violates constitutional otherwise Petroleum v. Kazi Dubai Co. Little- right. See Gen. Servs. Comm’n v. Mingus Overruled Co., 591, 39 599 Tex Insulation S.W.3d A. Failure to Exhaust Administrative (Tex.2001); Dep’t Reg Protective & cf. Longer No Per Se Juris- Remedies Schutz, 512, 101 ulatory Servs. v. S.W.3d dictional 2002, (TexApp.-Houston no [1st Dist.] 522 Kazi, h.) (“No Dubai Petroleum Co. v. pet. right of review from In foreign-citizen court held that agency the action of an administrative ex-
223
Helton,
plaintiffs’
“equal
(citing
burden to demonstrate
118
Sierra
S.W.3d
688).
I,
treaty rights”
statutory
with the United States was Club 26
If the
S.W.3d
these,
not a
prerequisite
requirement
to their
it
does none
is but a
filing suit
but
condition
which their
plaintiffs right
condition on which the
Id.,
depended.
Helton,
relief
depends.
S.W.3d at
relief
tent
held
a trial court
Compliance
Lack
B.
with Labor
categorically
subject-matter jurisdic
lacks
Code
Jurisdictional
a controversy
party
tion over
when a
has
Here
with the
of a
Kazi,
precedent,
Under well-settled
statute. See
at 76. After
Kazi,
compliance
statutory
therefore,
requirement
with a
failure of
to com
not necessarily jurisdictional, even if man
ply
statutory requirements will no
Albertson’s,
datory.
Sinclair,
Inc. v.
longer categorically
jurisdic
constitute a
When,
bar to
agency
tional
review of an
determi
here,
id.;
a statute is silent about the
Comm’n,
nation. See
v. R.R.
conse
Helton
quences of
01-01-01007-CV,
111, 118,
noncompliance,
look to the
No.
purpose
the statute
determine
fect
the
the supreme
relief. See
Kazi, 12
decision,
By
S.W.3d at 76.
Kazi
two other recent
removing the
su
jurisdictional
absolute,
bar
court
preme
suggest
as an
decisions
that Kazi
while ac
knowledging that
mandates
a take-nothing judg
the bar
rendition of
sometimes will
merits,
and sometimes
ment in
apply,
will not
Miller’s favor
thе
the Kazi
rather
implicitly
court
than
recognized that some
dismissal
HCESD’s suit for want
stat
jurisdiction.
here,
utory prerequisites
jurisdic
will remain
As
both decisions
interpreted
provisions
tional. See id.
the Labor Code
governing
judicial
suits for
review.
As this
recently
Court noted
in
Helton,
Albertson’s,
Sinclair,
the
In
of the Third Court of
Inc.
the su
410.252(a)
Appeals
Sierra Club I
a worka
court
preme
construed section
statutory
ble distinction
require
Code,
between
the
requires
Labor
which
that a
that
trigger jurisdictional
implica
judicial
ments
pаrty seeking
review “simulta
neously”
tions after Kazi and those that
copy
petition
do not.
file a
of its
with the
Helton,
(citing
any
224
bertson’s, Inc.,
nothing.
take
Id.
matter HCESD’s JENNINGS, participating Justice jurisdic- suit for review for want sponte from denial dissenting of sua only tion would not implicitly reward motion to en withdraw banc consideration. opting judicial- HCESD for out of but process, preclude review would also HEDGES, Justice, dissenting ADELE Miller obtaining disposition. a final enon banc reconsideration. vitality thoroughness The of the agen- undisputed I respectfully dissent. It is cy-review process will fast be diluted if that HCESD did file a written re- parties option partici- are allowed the sponse ap- written request Miller’s pate or not in the successive phases. (b) peal, required by subsection Code. Lab. Code Conclusion 410.202(b) (Vernon 1996).1 inquiry We reverse trial court’s order of (b) is whether is subsection subject-matter juris- dismissal for lack of merely irregularity or whether it is diction and render on merits trial going preservation of error in the take nothing. court. En banc requested reconsideration was I failure believe that on the own Court’s motion. (b) deprives the court of subsection justices A majority of the Court subject-matter jurisdiction to voted in reconsidering favor сase en also appeals panel. decision of the I be- banc. (a) jurisdictional.2 lieve that subsection Co., Employers en banc court on reconsideration See Morales v. Cas. consists of (Tex.App.-San Chief Justice RADACK and Antonio *8 provides 1. copy Section of the 410.202 shall on the same date serve a of the as follows: response appellant. on the (c)A appeal request response (a) for or a must appeal hearing the To decision а offi- of cer, clearly concisely support rebut the or party request a shall file a written for hearing appeal decision of the officer on each issue appeals panel the with later than day sought. on is the 15th the decision of which review which the (Vernon 1996). is received the officer from division 410.202 Tex. Lab.Code Ann. copy the a shall on same date serve of (c) nonjurisdic- clearly, 2. Just as subsection is appeal request party. the for other on the (b) implicatеs only party tional and whether respondent The shall file written re- preserved judicial sponse has for appeals panel the error review. later than 676, Trustees, day Hill v. 40 678 the 15th after the date on which Board S.W.3d the 2001, copy request pet.). appeal (Tex.App.-Austin for is served no of the denied). 1995, My reasoning griev- writ derives dural is to ensure that very judicial from fully the nature of review of are at the ances aired administrative agency administrative decisions. law in the of efficiency. lеvel interest difficulty deciding face is which of the judicial There is no inherent procedural requirements were intended agency review of administrative decisions. Legislature grant the a waiver of sover- Gen. Comm’n Little-Tex Serv. v. Insula (there- eign immunity from if suit fulfilled (Tex.2001). Co., 591, tion It subject- the court investing exists only when a statute jurisdiction), opposed matter to those review, adversely such affects order procedural requirements upon which waiv- property right, vested or sovereign immunity er is not based. otherwisе violates some constitutional Id.; (b) right. also I Dep’t persuaded see Protective & am that subsection is Schutz, Regulatory Servs. v. it appears because abe 512, statutory requirement defining [1st Dist.] a class 2002, pet.). rule may This harsh derives that a causes decide: those concept sovereign immunity: from respondent which the has filed a written against agency suit an of the State a suit to the response petitioner’s is written re- against v. quest appeal appeals panel. the State. Sеe Lowe Texas Tech Univ., (b) First, Why? closely tracks subsection (a), a challenge agency’s And of a deci language providing State subsection sion, notwithstanding agency immunity, ap- is of sovereign waiver review, not a party pears enjoy dignity; named is equal pointedly, against mandatory auxiliary likewise a suit the State. both verb Without use authorization, Second, specific legislative ag respondent “shall.” if the does grieved may response, appeals not seek review not a written file of an agency’s panel deprived complete argu- administrative action be immunity, ment, cause sovereign panel’s under and the di- appeals State role is permission. meaningless. cannot be sued without minished rendered Schutz, 521; S.W. Airlines Conclusion Auth., High-Speed
Co. Rail 157 (Tex.App.-Austin I would affirm the dismissal of the trial denied). writ jurisdiction. court for want of Acting through Legislature, JENNINGS, Justice, TERRY State, un- sovereign immunity has waived dissenting sponte sua denial of der circumstances. specifically defined motion to withdraw en banc recovery, For in the area of tort example, improvidently granted. reconsideration as immunity through the State has waived I respectfully Tort Act. dissent from the denial Texas Claims See Tex. Civ. 101.021, my §§ en banc PRAC. & RemlCode Ann. motion withdraw reconsid- (Vernon 1997). improvidently grant- of this the context eration case as actions, ed. case agency of administrative However, January has certain Legislature imposed proce- was issued *9 26, 2003, February majority on requirements dural that must be met be- motiоn, Court, justices this on our sovereign immunity fore is waived. See on own (Ver- grant en reconsideration of e.g., Tex. Gov’t Code Ank voted to bane TexRApp. 2001). 49.7. proce- appeal. non The of these this purpose original opinion, The on En relying Fincher banc consideration of a case Adjustment, 815, v. Board favored and not be ordered un- should 2001, necessary no less to secure or maintain uni- (Tex.App.-Houston Dist.] [1st pet.), formity of broadly stated: decisions unless require extraordinary en circumstances Kazi,1 compliance
Under lack of banc consideration. statutory bringing prerequisites to suit Here, necessary Id. en review is not banc longer jurisdic- should no be treated as uniformity prior deci- maintain with our tional, parties may but as an issue the Additionally, opinion sions. because the raise on the determining merits rely on does on or reconsideration whether the suit has es- bringing interpretation refer to Fincher’s overbroad tablished its under proceed Kazi, “extraordinary circum- there is statute. “requires” stance” that en banc consider- County Harris Emergency Servs. Dist. ation. Miller, 01-00-000846-CV, # 1 v. No. slip Because this case has decided now been op. at 6 Jan. [1st Dist.] Fincher, without on banc reliance en re- 2003) withdrawn) Fincher, (op. (citing granted. consideration improvidently 817). Fincher, this Court Accordingly, respectfully I from dissent court, Kazi, stated that my the denial of motion to en withdraw “held that failure to comply statutory banc reconsideration of this case. bring suit should not be jurisdictional, treated as but аs issue
the parties may raise on the merits.”
Fincher, Kazi, (citing 76-77).
S.W.3d at
I voted for en banc reconsideration of
the original panel opinion in this case be- original cause opinion KELLY, Appellant, Carlos Court’s opinion overbroadly Fincher in- Kazi, terpreted for the reason Kazi did not address statutory waiver of the Texas, Appellee. STATE immunity State’s suit. No. 13-02-578-CR. panel opinion’s application of Fincher was in grave capable causing Texas, error Court of serious confusion in the construction of Christi-Edinburg. Corpus statutory requirements. Aug. 2003. Thus, extraordinary circumstances re- Opinion Overruling Rehearing and quired en banc of this consideration case. App Supplementing Record Nov. See Tex.R. 41.2(c). P.
However, the current recon- way
sideration in no relies Fincher. banc
Accordingly, en consideration of this
case inappropriate. is now En banc con-
sideration is disfavored: Kazi,
1. Dubai Co. v. 76-77 Petroleum