Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 47th District Court Randall County, Texas
Trial Court No. 68, 809-A, Honorable Dan L. Schaap, Presiding
QUINN, C.J., and CAMPBELL and PARKER, JJ.
T. Campbell Justice
2015, appellant Nancy Nichols, appearing pro se,
sued appellees the Texas Board of Nursing and the Texas
Workforce Commission concerning the June 14, 2005 revocation
of her license to practice nursing. The Board and the
Commission filed pleas to the jurisdiction challenging the
subject-matter jurisdiction of the trial court. The Board
asserted Nichols failed to exhaust her administrative
remedies in seeking judicial review of the order revoking her
license and her additional tort claims were barred by
sovereign immunity. The Commission alleged Nichols'
claims against it were barred by sovereign immunity. The
trial court sustained both jurisdictional challenges and
dismissed Nichols' claims against the Board and the
Commission. Still appearing pro se, Nichols
appealed. We will affirm the orders of the trial court.
narrow legal question for this appeal is whether Nichols
alleged a cause of action within the subject-matter
jurisdiction of the trial court.
plea to the jurisdiction is a dilatory plea that seeks
dismissal of a case for lack of subject matter
jurisdiction." Harris County v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004). It is not concerned with the
merits of the claims alleged. Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). The determination
of a trial court's subject-matter jurisdiction begins
with consideration of the plaintiff's petition. Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004); James v. Underwood, 438 S.W.3d
704, 708 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
In that respect, it is the plaintiff's burden to plead
facts affirmatively showing that the trial court has
jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 446 (Tex. 1993). We liberally
construe the pleadings in favor of the pleader, looking to
her intent, and accepting as true the factual allegations
alleged in the pleading. See Miranda, 133 S.W.3d at
226; City of Fort Worth v. Crockett, 142 S.W.3d 550,
552 (Tex. App.—Fort Worth 2004, pet. denied) (op. on
immunity deprives a trial court of subject matter
jurisdiction over the state and certain governmental units
unless the state consents to suit. Miranda, 133
S.W.3d at 224. A governmental unit includes the state, the
agencies of government, and all boards and commissions. Tex.
Civ. Prac. & Rem. Code Ann. § 101.001(3)(A) (West
Supp. 2017). The Board is a governmental unit, Tex. St.
Bd. of Nursing v. Pedraza, No. 13-11-00068-CV, 2012
Tex.App. LEXIS 7459, at *12 n.4 (Tex. App.—Corpus
Christi Aug. 31, 2012, pet. denied) (mem. op.), as is the
Commission. See Arndt v. Pinard Home Health, Inc.,
495 S.W.3d 57 (Tex. App.—Houston [14th Dist.] 2016, no
pet.) (because of Commission's sovereign immunity, trial
court lacked subject matter jurisdiction over a Commission
accounts examiner who did not act ultra vires). The plaintiff
in a suit against a governmental unit must affirmatively
demonstrate the trial court's jurisdiction by alleging a
valid waiver of immunity. DART v. Whitley, 104
S.W.3d 540, 542 (Tex. 2003). The limited waiver of sovereign
immunity provided by the Texas Tort Claims Act does not extend
to a suit for defamation or claims of intentional tortious
conduct. Ahmed v. Tex. Tech Univ. Health Sci. Ctr. Sch.
of Med., No. 07-11-00176-CV, 2013 Tex.App. LEXIS 614, at
*24 (Tex. App.—Amarillo Jan. 23, 2013, no pet.) (mem.
op.). Nor is sovereign immunity waived for a claim for
exemplary damages. Tex. Civ. Prac. & Rem. Code Ann.
§ 101.024 (West 2011).
Texas Administrative Procedure Act (APA), Tex. Gov't Code
Ann., Chapter 2001 (West 2016 & Supp. 2017), provides the
procedural framework for revocation of a nursing license.
Pedraza, 2012 Tex.App. LEXIS 7459, at *5. When
jurisdiction to resolve a disputed matter is exclusively
vested in an agency, parties "must first exhaust
administrative remedies before a trial court has subject
matter jurisdiction" to consider a dispute. In re
Southwestern Bell Tel. Co., L.P., 235 S.W.3d 619, 625
(Tex. 2007) (orig. proceeding). In a suit for judicial review
of an adverse agency decision, an aggrieved party's
petition must demonstrate she first exhausted her
administrative remedies. See Janek v. Gonzalez, No.
03-11-00113-CV, 2013 Tex.App. LEXIS 4781, at *17-18 n.4, *28,
*30 (Tex. App.—Austin Apr. 17, 2013, no pet.) (mem.
op.) (exhaustion argument considered for first time on
appeal); Macias v. Schwedler, 135 S.W.3d 826, 829
(Tex. App.—Houston [1st Dist.] 2004, pet. denied)
(affirming dismissal for want of jurisdiction in case were
defendants' motion to dismiss for lack of jurisdiction
alleged plaintiff's petition did not state facts showing
exhaustion of administrative remedies before agency);
Roskey v. Cont'l Cas. Co., 190 S.W.3d 875, 880
(Tex. App.—Dallas 2006, pet. denied) ("The trial
court makes its determination of jurisdiction based upon what
is presented in the pleading and at the hearing").
Except under circumstances not present here, a timely filed
motion for rehearing of an agency decision is a statutory
prerequisite for the appeal of the agency decision to the
district court. Tex. Gov't Code Ann. § 2001.145(a)
(West 2016). "The purpose of a motion for rehearing is
to apprise the agency of the claimed error and allow the
agency the opportunity to correct the error or prepare to
defend against it." Upper Trinity Reg'l Water
Dist. v. Nat'l Wildlife Fed'n, 514 S.W.3d 855,
870 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
Under the version of the APA applicable here, a motion for
rehearing in a contested case had to be filed by a party not
later than the twentieth day after the date the party or the
party's attorney was properly notified of a decision that
might become final. Tex. Gov't Code Ann.
§ 2001.146(a). Statutory prerequisites to suit are
jurisdictional requirements in all suits against a
governmental entity. Tex. Gov't Code Ann. § 311.034
(West 2013). Thus, failure to exhaust administrative remedies
before the agency, including the timely filing of a motion
for rehearing, deprives the district court of jurisdiction to
review the agency's decision. Temple Indep. Sch.
Dist. v. English, 896 S.W.2d 167, 169 (Tex. 1995);
Lindsay v. Sterling, 690 S.W.2d 560, 564 (Tex. 1985)
(requirement of having motion for rehearing overruled, thus
exhausting administrative remedies, is jurisdictional
prerequisite to suit and cannot be waived by action of
parties); Tex. Dep't of Family & Protective
Servs. v. Wallace, No. 03-16-00631-CV, 2017 Tex.App.
LEXIS 3386, at *4 (Tex. App.—Austin Apr. 19, 2017, pet.
filed) (mem. op.) (same).
a trial court possesses subject matter jurisdiction and
whether a pleading alleges facts affirmatively demonstrating
a trial court's subject matter jurisdiction are questions
of law we review de novo. Miranda, 133 S.W.3d at
addition to reinstatement of her nursing license, Nichols
apparently also intended to bring causes of action for
"libel, slander, malice, and perjury" against the
Board. She sought recovery of exemplary damages as well.
the law we have cited, as a prerequisite to judicial review
of the Board's 2005 order revoking her nursing license,
Nichols was required to file a timely motion for rehearing
with the Board. Nichols did not allege by pleading or
evidence in the trial court that she exhausted her
administrative remedies before filing suit. Her failure to
exhaust administrative remedies by filing a timely motion for
rehearing means the trial court had no jurisdiction to review
the Board's revocation order. Nichols' claims for
damages resulting from alleged intentional torts are likewise
not within the subject-matter jurisdiction of the district
court because immunity from suit for those claims and any
exemplary damage claim has not been waived.
Nichols' claims against the Commission, in a hand-written
"motion for clarification" filed in the trial court
Nichols stated she did not intend to sue the Commission.
Nonetheless, the Commission was served with citation and an
attached assortment of documents. We have examined those
documents and, assuming for the sake of argument they could
collectively be said to speak a complaint against the
Commission, it is not one for which the Legislature has
waived sovereign immunity.