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Dass P.E. v. Texas Board of Professional Engineers

Court of Appeals of Texas, Third District, Austin

March 15, 2017

Raghunath Dass, P.E., Appellant
v.
Texas Board of Professional Engineers, Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. D-1-GN-14-000568, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Field

          OPINION

          Jeff Rose, Chief Justice

         Raghunath Dass, P.E., appeals from the district court's summary judgment affirming the Texas Board of Professional Engineers's Amended Final Order suspending Dass's license for violations of the Texas Engineering Practice Act.[1] As explained in more detail below, because the Board's amended order is void, having been issued while this Court held exclusive plenary jurisdiction over Dass's appeal, we will vacate the Board's order and the district court's summary judgment and dismiss the case.

         Background

         Dass is a professional engineer licensed by the Board. In August 2012, the Board issued a final order suspending Dass's professional engineering license for two years for violations of the Board's rules governing use of an engineering seal ("original order").[2] Dass filed suit for judicial review of the Board's original order in Travis County District Court.[3] On September 27, 2013, the district court rendered judgment striking two of the Board's findings of fact and one conclusion of law that were not supported by substantial evidence and remanded the matter to the Board "for any further action [the Board] deems appropriate given the ruling." On October 23, 2013, Dass filed a timely notice of appeal with this Court challenging the district court's judgment.[4]

         On November 21, 2013, while Dass's appeal remained pending before this Court, the Board reviewed Dass's case, voted to amend its original order by removing the findings of fact and conclusion of law struck by the district court, and issued an order reflecting those modifications ("amended order"). On December 9, 2013, Dass moved this Court, without opposition from the Board, to dismiss his appeal from the district court's judgment regarding the Board's original order, asserting his perception that the Board's amended order had rendered his appeal moot. This Court granted his motion and dismissed the appeal on December 18, 2013.

         After dismissal of his appeal from Board's original order, Dass filed a separate suit for judicial review of the Board's amended order, the case at issue in this appeal. The Board sought summary judgment in Dass's second suit for judicial review, asserting that Dass's motion for rehearing with the Board failed to preserve error for judicial review; Dass's suit was an attempt to re-litigate decided issues; and the amended order conformed to the district court's ruling. The district court granted the Board's motion for summary judgment. It is from this summary judgment that Dass now appeals.

         Discussion

         It is well established that when an appeal is perfected, the court to which the appeal is made "acquires plenary exclusive jurisdiction over the entire controversy."[5] Thus, in the absence of express authorization by rule or statute, [6] a trial court loses jurisdiction to take any action in a case once an appeal is perfected.[7] This rule rests upon the principle that one court should not interfere with the jurisdiction of another, especially when the latter is a higher tribunal.[8] Orders or judgments issued in derogation of this plenary exclusive jurisdiction are void.[9]

         Well before either the APA or its predecessor, the Texas Administrative Procedure and Register Act (APTRA), were enacted in 1993 and 1975 respectively, [10] this longstanding jurisdictional rule was uniformly applied by the courts in the administrative context to hold that an agency lost its jurisdiction over a matter once that matter was under judicial review and, further, to hold as void any change or modification made to an agency order that was under judicial review.[11] And in 1995, shortly after the APA was adopted, the Legislature codified this jurisdictional principle in APA Section 2001.1775: "[A]n agency may not modify its findings or decision in a contested case after proceedings for judicial review of the case have been instituted . . . and during the time that the case is under judicial review."[12] In other words, once judicial-review proceedings are initiated, the agency loses jurisdiction over the subject-matter of the case.[13]

         The record conclusively establishes that the Board issued its amended order while Dass's appeal from the district court was pending before this Court and, thus, while this Court had exclusive plenary jurisdiction over the matter. Accordingly, the Board, at that time, lacked jurisdiction to modify its order and, as a result, its amended order is void.[14] Further, because the Board lacked jurisdiction to issue the amended order, the district court lacked, and this Court lacks, jurisdiction to review the merits of the void amended order.[15]

         The Board asserts, based on various grounds, that Dass has waived error. Subject-matter jurisdiction, which is essential to the authority of a court to decide a case, is never presumed and cannot be waived.[16] Moreover, not only may an issue of subject-matter jurisdiction be raised for the first time on appeal by the parties or by the court, [17] "a court is obliged to ascertain that subject-matter jurisdiction exists regardless of whether the parties have questioned it."[18]

         Having held that the Board's amended order is void because the Board lacked jurisdiction to modify its original order while that order was on appeal, and thus, that the district court and this Court lack jurisdiction to review the merits of the amended order, we vacate both the ...


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