Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 250th District Court of Travis County, Texas.
Chief Justice Contreras and Justices Benavides and Longoria
M. BENAVIDES, JUSTICE
issues, pro se appellant Reza Vafaiyan a/k/a Gholamreza
Vafaiyan challenges the trial court's grant of appellee
the State's motion for summary judgment enforcing an
administrative order issued by the Texas Commission on
Environmental Quality (TCEQ). Vafaiyan alleges: (1) he was
not liable for the penalties assessed against him; (2) the
statute of limitations or laches precludes the judgment; (3)
he was denied his right to an attorney; (4) the calculated
penalty against him was not supported by evidence; (5) the
Office of the Attorney General (OAG) of Texas exceeded its
authority; and (6) his response to the State's summary
judgment should be considered timely under the prisoner
mailbox rule. We affirm.
a Texas corporation, failed to timely file its 2002 Texas
franchise tax report, and subsequently, its corporate
privileges were forfeited by the Comptroller of Texas. Prior
to forfeiture, Pertex was investigated by the TCEQ for
compliance issues with its petroleum storage tanks and four
violations were found.
TCEQ served Pertex with a petition and a preliminary report
containing the violations. Pertex failed to respond and the
TCEQ issued a default order on June 3, 2003. Pertex did not
appeal the administrative order, and the order became final.
Pertex failed to pay the penalty assessed in the order, which
prompted the TCEQ to request the OAG to enforce the order. In
2007, the State, represented by the OAG, sued Pertex for the
penalty under § 2001.202 of the government code and sued
Vafaiyan, who was the registered agent, officer, and
director, under § 171.255 of the tax code. See
Tex. Gov. Code Ann. § 2001.202; Tex. Tax Code Ann.
service of the OAG's suit, Vafaiyan filed a pro se
answer,  in which he objected to the jurisdiction
of the Travis County court, stated he sold the gas station,
which was the location of the TCEQ violations, and argued the
suit should be barred by the statute of limitations; however,
Pertex failed to file an answer. The OAG moved for summary
judgment against both Pertex and Vafaiyan and attached
exhibits to its motion. Vafaiyan failed to file a response
prior to or appear at the hearing. On June 26, 2007, the
trial court granted summary judgment and entered a final
judgment in favor of the OAG. The day after the summary
judgment hearing, the district clerk received Vafaiyan's
response and objection to the summary judgment. In his
response, Vafaiyan alleged the OAG's claim is barred by a
two-year statute of limitations; requested a change of venue
to Wichita County, Texas, where the facility in question is
located; requested the appointment of counsel due to his
indigency; and requested a bench warrant to be issued since
Vafaiyan was incarcerated on an unrelated criminal charge. On
August 3, 2007, Vafaiyan filed his notice of appeal. In
September 2007, the Travis County District Clerk wrote to
Vafaiyan and asked him to notify the office as to what he
wanted to be included in the appellate record. Vafaiyan sent
correspondence to the Travis County District Clerk in May
2018, requesting a status. This appeal followed.
Motion for Summary Judgment
raises six issues on appeal, which we construe as a general
challenge to the trial court's granting of the motion for
summary judgment. Additionally, we will address his specific
contentions as procedural or substantive issues.
Standard of Review
appellate court reviews de novo a trial court's ruling on
a summary judgment motion. Wells Fargo Bank, N.A. v.
Ballestas, 355 S.W.3d 187, 191 (Tex. App.-Houston [1st
Dist.] 2011, no pet.). To succeed on a summary judgment
motion under Texas Rule of Civil Procedure 166a(c), a movant
must establish that there is no genuine issue of material
fact so that the movant is entitled to judgment as a matter
of law. Tex.R.Civ.P. 166a(c); Wells Fargo, 355
S.W.3d at 191. A party moving for summary judgment must
conclusively prove all elements of its cause of action or
defense as a matter of law. Tex.R.Civ.P. 166a(c); Holy
Cross Church of God in Christ v. Wolf, 44 S.W.3d 562,
566 (Tex. 2001). To conclusively establish a matter, the
movant must show that reasonable minds could not differ as to
the conclusion to be drawn from the evidence. City of
Keller v. Wilson, 168 S.W.3d 802, 814 (Tex. 2005). The
evidence is reviewed in the light most favorable to the
non-movant, crediting favorable evidence if reasonable jurors
could and disregarding contrary evidence unless reasonable
jurors could not. Wells Fargo, 355 S.W.3d at 191.
§ 2001.202 of the government code, the OAG may bring
suit to compel compliance with a final administrative order.
See Tex. Gov't Code Ann. § 2001.202. In
order to obtain judicial review of an administrative order,
the aggrieved person must first exhaust all other possible
avenues of relief at the agency level. If, as here, the
person fails to timely file a motion for rehearing at the
administrative level, the administrative order becomes final
and is not subject to judicial review. See id.
§§ 2001.144(a), 2001.146(a); see Jolly v.
State, 856 S.W.2d 859, 860-61 (Tex. App.-Austin 1993,
writ denied); see also Armistead v. State, No.
01-18-00555-CV, 2019 WL 1119610, at *2 (Tex. App.-Houston
[1st Dist.] Mar. 12, 2019, no pet.) (mem. op.). Vafaiyan made
no challenge previously at the administrative level to the
fines assessed by the ...