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Vafaiyan v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 15, 2019

REZA VAFAIYAN A/K/A GHOLAMREZA VAFAIYAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.

          On appeal from the 250th District Court of Travis County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE

         By six 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.

         I. Background[1]

         Pertex, 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.

         The 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. § 171.255.

         Following service of the OAG's suit, Vafaiyan filed a pro se answer, [2] 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.[3] Vafaiyan sent correspondence to the Travis County District Clerk in May 2018, requesting a status.[4] This appeal followed.

         II. Motion for Summary Judgment

         Vafaiyan 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.

         A. Standard of Review

         An 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.

         B. Discussion

         Under § 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 ...


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