Justice SMITH delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice O'NEILL, Justice JEFFERSON, Justice WAINWRIGHT and Justice BRISTER joined.
In Texas, a person may obtain judicial review of an administrative action only if a statute provides a right to judicial review, or the action adversely affects a vested property right or otherwise violates a constitutional right. See Cont'l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex.2000); Firemen's & Policemen's Civil Serv. Comm'n v. Kennedy, 514 S.W.2d 237, 239 (Tex.1974); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (1951).
The question in this case is whether a person who holds a child-care facility license may obtain judicial review of an administrative decision to revoke the license. The court of appeals held that the holder of a child-care facility license has a statutory right to judicial review. We will affirm.
I
In 1975, the 64th Legislature enacted the Administrative Procedure and Texas Register Act (APTRA), the first comprehensive statute governing the practices and procedures of Texas administrative agencies. See APTRA, 64th Leg., R.S., ch. 61, 1975 Tex. Gen. Laws 136 (compiled as Tex.Rev.Civ. Stat. art. 6252-13a). Section 19 of the APTRA was titled "Judicial Review of Contested Cases," and subsection (a) thereof provided: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. This section is cumulative of other means of redress provided by statute." Id. § 19(a), at 146 (emphasis added).
In 1993, the APTRA was codified in the Government Code. The part of the APTRA concerning the Texas Register was transferred to Chapter 2002. The remainder of the APTRA was transferred to Chapter 2001 and designated the Administrative Procedure Act (APA). Section 19(a) of the APTRA was divided and placed in two different sections of the APA. Subchapter
The Third Court of Appeals has "repeatedly held that [section 2001.171 of the APA] is a procedural provision that does not confer independent subject matter jurisdiction on the district court." Eldercare Props., Inc. v. Tex. Dep't of Human Servs., 63 S.W.3d 551, 557 (Tex.App.-Austin 2001, pet. denied). For example, in Employees Retirement System v. Foy, 896 S.W.2d 314, 316 (Tex.App.-Austin 1995, writ denied), the court stated: "Notwithstanding the generality of section 2001.171, the legislature intended the judicial-review provisions of the APA to be procedural only; they do not create a right to judicial review where the right does not exist by reason of another statute specifically granting the right." In contrast, before the provision was codified, the Tenth and Fourteenth Courts of Appeals concluded that section 19(a) of the APTRA provided a right to judicial review. See Tex. Health Facilities Comm'n v. W. Tex. Home Health Agency, 588 S.W.2d 655, 657 (Tex.Civ.App.-Waco 1979, no writ); Moore v. Tex. Employment Comm'n, 565 S.W.2d 246, 247 (Tex.Civ.App.-Houston [14th Dist.] 1977, no writ).
In this case, a divided panel of the First Court of Appeals held that section 2001.171 of the APA provides a right to judicial review. 81 S.W.3d 470. We granted review to resolve the conflict among the courts of appeals regarding the proper interpretation of section 2001.171. Based on its plain language, we conclude that section 2001.171 provides an independent right to judicial review of a contested-case decision when the agency's enabling statute neither specifically authorizes nor prohibits judicial review of the decision.
II
On April 28, 1999, Mega Child Care, Inc. filed suit against the Texas Department of Protective and Regulatory Services (TDPRS), a state agency subject to the APA. The petition for judicial review, which was filed in a Harris County district court, stated:
On May 24, 1999, the TDPRS filed Defendant's Plea to the Jurisdiction, Special Exceptions, and Original Answer. Part I of the pleading, titled "Plea to the Jurisdiction," stated:
Part II of the pleading contained a general denial. In part III, the TDPRS asserted "its affirmative defense of sovereign immunity." Part IV set forth special exceptions.
On August 30, 1999, the trial court granted the TDPRS's plea to the jurisdiction and dismissed the suit. On October 6, 1999, the trial court denied Mega Child Care's motion for new trial. No hearing was held on either the plea or the motion. On November 3, 1999, Mega Child Care filed a notice of appeal.
In the court of appeals, Mega Child Care asserted for the first time the additional argument that the administrative decision adversely affected a vested property right and, therefore, it had an inherent right to judicial review. The TDPRS, in its court of appeals brief, asserted that "no statute authorizes judicial review of the Department's decision or SOAH's order" and that Mega Child Care "failed to raise its constitutional argument in the court below, therefore it has waived its claim that the Department's decision violated its due process rights." The TDPRS did not raise or otherwise discuss sovereign immunity in its court of appeals brief.
On June 28, 2002, the court of appeals reversed and remanded, holding that Mega Child Care had "exhausted all available administrative remedies and was entitled to judicial review" under section 2001.171 of the APA. 81 S.W.3d at 473. The majority did not discuss the Third Court of Appeals's precedent construing section 2001.171. The dissent asserted that the court should follow the Third Court of Appeals's precedent and hold that Mega Child Care had no statutory right to judicial review. Id. at 477. In addition, the dissent agreed with the TDPRS that Mega Child Care had waived its constitutional claim. Id. at 477-78. Accordingly, the dissent would have affirmed the trial court's judgment. Neither the majority nor the dissent discussed the doctrine of sovereign immunity.
In its petition for review, the TDPRS asserted that section 2001.171 of the APA neither grants "an aggrieved party a substantive right to judicial review of an agency contested case order" nor waives sovereign immunity. In addition, the TDPRS argued that because section 19(a) of the APTRA was not substantively amended in 1993 when it was codified, "the Legislature
In its brief on the merits, the TDPRS generally reiterated its previous arguments regarding section 2001.171 of the APA.
In the statement-of-the-case section of its brief on the merits, Mega Child Care asserted that "it has a statutory and constitutional right to judicial review." However, the three-page argument section of the brief did not contain any discussion regarding the asserted constitutional right to judicial review. In addition, the brief failed to address the issue regarding the intent of the TDPRS's 1997 sunset review legislation.
After the parties filed briefs on the merits, the Court received two amicus curiae briefs. The Texas Licensed Child Care Association (TLCCA), a statewide organization of child-care businesses, submitted a substantial brief in support of Mega Child Care. The TLCCA asserted that "[t]he plain words suggest that [section 2001.171 of the APA] does more than establish a procedure for judicial review; the section creates the right of judicial review for those who qualify."
Both the TDPRS and the TLCCA submitted post-submission briefs. In its brief, the TDPRS reasserted its legislative acceptance argument, argued that section 2001.171 of the APA "can fairly be read to set forth necessary — but not sufficient — conditions that must be satisfied to qualify for any judicial review that the Legislature has provided in the enabling statute," and contended that the court decisions from states with similar judicial review provisions were "mixed." In its brief, the TLCCA asserted:
In this Court, the TDPRS concedes that Mega Child Care exhausted all available administrative remedies and that Mega Child Care is aggrieved by a final decision in a contested case. However, the TDPRS asserts that Mega Child Care is not entitled to judicial review of the administrative decision to revoke its child-care facility license. Based on the following analysis, we disagree.
III
Several longstanding rules of statutory interpretation govern our resolution of this case.
When interpreting a statutory provision, a court must ascertain and effectuate the legislative intent. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex.2000) ("The primary rule in statutory interpretation is that a court must give effect to legislative intent."); Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.1974) ("[I]t is the duty of the court to ascertain the legislative intent."); Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935) ("[T]he dominant rule to be observed is to give effect to the intention of the Legislature."); Mills County v. Lampasas County, 90 Tex. 603, 40 S.W. 403, 404 (1897) ("Strictly speaking, there is but one rule of construction, and that is that the legislative intent must govern. All other canons of interpretation, so called, are but grounds of argument resorted to for the purpose of ascertaining the true meaning of the law.").
If an ambiguous statute that has been interpreted by a court of last resort or given a longstanding construction by a proper administrative officer is re-enacted without substantial change, the Legislature is presumed to have been familiar with that interpretation and to have adopted it. See Grapevine Excavation, Inc. v. Md. Lloyds, 35 S.W.3d 1, 5 (Tex.2000) (Once the Texas Supreme Court and courts of appeals "construe a statute and the Legislature re-enacts or codifies that statute without substantial change, we presume that the Legislature has adopted the judicial interpretation."); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 248 (Tex.1991) ("`[A] statute of doubtful meaning that has been construed by the proper administrative officers, when re-enacted without any substantial change in verbiage, will ordinarily receive the same construction.' This rule is only applicable where there has been an affirmative long-standing administrative policy.") (quoting Humble Oil & Ref. Co. v. Calvert, 414 S.W.2d 172, 180 (Tex.1967)); Tex. Employers' Ins. Ass'n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 395 (1946) ("There is another well-settled rule to guide us in the construction of a statute which is uncertain and ambiguous ...: `Where a statute which has been construed, either by a court of last resort or by executive officers, is re-enacted without any substantial change of verbiage, it will continue to receive the same construction.'"); Tex. Fid. & Bonding Co. v. City of Austin, 112 Tex. 229, 246 S.W. 1026, 1029 (1922) ("It is an elementary rule of construction that where, after a statute has been construed by the highest court of the state, the Legislature re-enacts the statute, whether by the adoption of Revised Statutes or by amendment, the act of the Legislature carries with it the construction previously placed upon the law by the court.").
IV
An extensive review of the three model state administrative procedure acts, the Texas Administrative Procedure Act, and the TDPRS's 1997 sunset review legislation is necessary to resolve this case.
In 1946, the Commissioners on Uniform State Laws issued the first Model State Administrative Procedure Act. MODEL STATE ADMIN. PROCEDURE ACT, 9C U.L.A. 179 (1957). Because it governed rulemaking, adjudication, and judicial review, the 1946 model act was considered "comprehensive." Arthur Earl Bonfield, The Federal APA and State Administrative Law, 72 Va. L.Rev. 297, 303 (1986). Section 12 of the 1946 model act was titled "Judicial Review of Contested Cases," and subsection (1) thereof provided: "Any person aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, is entitled to judicial review thereof under this act [but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief or trial de novo, provided by law]." MODEL STATE ADMIN. PROCEDURE ACT § 12(1), 9C U.L.A. 179, 183 (1957) (emphasis added). Section 12(1) has been interpreted as granting an independent right to judicial review by both the courts
In 1951, twenty-four years before the Legislature enacted a comprehensive administrative procedure act, this Court addressed the availability of judicial review of state administrative action:
City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790 (1951) (citations omitted) (emphasis in original).
In 1953, a proposed Texas administrative procedure act was published in the state bar journal. Administrative Procedure Act, 16 TEX. B.J. 14 (1953). The comprehensive act was drafted by the State Bar Committee on Administrative Procedure. Article 42-23 of the act, titled "Judicial Review. — Orders," provided:
Id. at 48-49.
In 1955, an article regarding the state bar's proposed act was published in the Texas Law Review. George W. Terry, Comment, The Proposed Texas Administrative Procedure Act, 33 TEXAS L.REV. 499 (1955). After noting that the act apparently provided an independent right to judicial review of both rules and orders, the author asked: "[I]s it wise to make judicial review a matter of right in all cases covered by this general administrative procedure act even though the legislature, in
Id. at 516 (emphasis added).
In 1957, the Texas Civil Judicial Council
Id. at 21-23 (emphasis added). In addition, the report quoted in full the conclusion of the 1955 Texas Law Review article, including the author's concern that the proposed act "confers a right to judicial review in both rule-making and adjudication where previously none was recognized." Id. at 29.
In 1961, the Commissioners on Uniform State Laws issued a revised Model State Administrative Procedure Act. Model State Admin. Procedure Act(1961), 15 U.L.A. 184 (2000). Section 15 of the 1961 model act was titled "Judicial Review of Contested Cases," and subsection (a) thereof provided:
MODEL STATE ADMIN. PROCEDURE ACT (1961) § 15(a), 15A U.L.A. 11 (2000) (emphasis added). The official comment to section 15 states:
Id. § 15 cmt., at 13. A majority of states, including Texas, has enacted comprehensive administrative procedure acts based in whole or part on either the original 1946 model act or the 1961 revision.
In 1963, Professor Bloomenthal of the University of Wyoming College of Law authored an article on the 1961 model act. Harold S. Bloomenthal, The Revised Model State Administrative Procedure Act — Reform or Retrogression?, 1963 Duke L.J. 593. Discussing the availability of judicial review of administrative action in general, he stated:
Id. at 622-23 (footnotes omitted) (emphasis added).
In 1965, Professor Cooper of The University of Michigan Law School authored an important treatise on state administrative law. FRANK E. COOPER, STATE ADMINISTRATIVE LAW (1965). Cooper had been intimately involved with the 1961 revision of the 1946 model act. In his treatise, Cooper stated:
2 id. at 588 (citations omitted) (emphasis added).
In 1967, in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the United States Supreme Court reaffirmed the presumption that judicial review of federal administrative action is available. At that time, the Federal Administrative Procedure Act provided: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702 (Supp. III 1964) (emphasis added). With regard to the availability of judicial review, the Supreme Court stated:
Abbott Labs., 387 U.S. at 139-40, 87 S.Ct. 1507 (citations omitted); see also Hayes Int'l Corp. v. McLucas, 509 F.2d 247, 259 (5th Cir.1975) ("Clearly the absence of statutory language expressly authorizing judicial review is insufficient to offset the presumption that [federal] administrative action is reviewable. `Indeed, judicial review of such administrative action is the rule, and nonreviewability an exception which must be demonstrated.' However, `[a] clear command of the statute will preclude review; and such a command of the statute may be inferred from its purpose.'") (quoting Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970)).
In 1971, legislation providing for a comprehensive Texas administrative procedure act was filed in both the Senate
In 1975, legislation was again filed that provided for a comprehensive administrative procedure act. See Tex. S.B. 41, 64th Leg., R.S. (1975); Tex. H.B. 531, 64th Leg., R.S. (1975); Tex. H.B. 1106, 64th Leg., R.S. (1975) (available at Legislative Reference Library). Senate Bill 41, as amended, was enacted during that legislative session. Section 17(a) of Senate Bill 41, as introduced, provided: "A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case as defined in Section 3(2) is entitled to judicial review under this Act. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy." Tex. S.B. 41 (emphasis added).
On January 30th, the introduced version of Senate Bill 41 was considered in committee. See Hearings on Tex. S.B. 41 Before the Senate Intergovernmental Relations Comm., 64th Leg., R.S. (Jan. 30, 1975) (transcript available at Legislative Reference Library). David Young, chief counsel for the Texas Department of Public Welfare (DPW), was one of the many agency representatives who testified at the hearing.
Young advised the Senate committee that certain contested-case decisions of the DPW were not currently subject to judicial review and that, in his view, the proposed act would both waive sovereign immunity and authorize judicial review of those contested-case decisions. Id. at 12-13. He further stated that "because we have about a volume of some 800 hearings a month in the Aid to Dependent Children program we can expect a very heavy influx of litigation on what amount[s] to relatively small amounts of money." Id. at 13. A committee member immediately raised the question of how many new district courts would have to be created to handle those appeals. Committee members and Young then discussed solving the problem by exempting the relevant DPW contested-case decisions from the act. Id. at 13-15. No committee member or witness contested Young's assertion that Senate Bill 41 would provide a right to judicial review.
On February 5th, the following floor amendment to Senate Bill 41 was adopted: "19. EXCEPTIONS. The provisions of this Act shall not apply to the financial and medical assistance and service programs of the State Department of Public Welfare." S.J. OF TEX., 64th Leg., R.S. 184, 191 (1975). The substance of the exemption was retained throughout the legislative process and is currently codified in section 2001.223 of the APA. See TEX. GOV'T CODE § 2001.223.
The Administrative Procedure and Texas Register Act
Id. § 12, at 141.
Section 19 of the APTRA provided:
Id. § 19, at 146-47 (emphasis added). Section 22 contained a general repealer. Id. § 22, at 148. The APTRA did not specifically repeal or amend any pre-existing statutory judicial review provisions.
In 1976, Professor Hamilton of The University of Texas School of Law co-authored an article regarding the APTRA. Robert W. Hamilton & J.J. Jewett, III, The Administrative Procedure and Texas Register Act: Contested Cases and Judicial Review, 54 Texas L.Rev. 285 (1976). The article did not discuss whether section 19(a) of the APTRA provided an independent right to judicial review when an agency enabling statute neither specifically authorized nor prohibited judicial review. However, in the following passage, the authors assumed that section 19(a) provided an independent right to judicial review:
Id. at 308-09 (footnotes omitted) (emphasis added).
In the footnote following the first sentence emphasized above, the authors cited four statutes, one of which was "Auctioneers — Regulation, TEX.REV.CIV. STAT. ANN. art. 8700 (Supp.1975)." Id. at 309 n. 110. The statute was comprehensive, providing inter alia for the denial, suspension, and revocation of the required auctioneer's license. See Act of May 21, 1975, 64th Leg., R.S., ch. 320, 1975 Tex. Gen. Laws 827, 829. It was silent with regard to the availability or scope of judicial review. Nonetheless, Hamilton and Jewett assumed that judicial review was available under section 19(a) of the APTRA and concluded that substantial evidence was the applicable scope of review.
In 1977, the Legislature enacted the Alcoholic Beverage Code, a nonsubstantive revision. Alcoholic Beverage Code, 65th Leg., R.S., ch. 194, 1977 Tex. Gen. Laws 391. The revisor's notes that accompanied the proposed codification reflect that the code drafters believed section 19(a) of the APTRA guaranteed a right to judicial review. Section 11.67 of the Alcoholic Beverage Code governs judicial review of administrative orders regarding liquor licenses, and its revisor's note stated:
Tex. Alco. Bev.Code Ann. § 11.67 revisor's note (Vernon 1995). Similarly, section 61.81 governs judicial review of administrative orders regarding beer licenses and its revisor's note stated:
Id. § 61.81 revisor's note.
In 1978, this Court decided Southwestern Bell Telephone Co. v. Public Utility Commission, 571 S.W.2d 503 (Tex.1978). Because the Public Utility Commission's enabling statute specifically authorized judicial review of the commission's orders, the question of whether section 19(a) provided an independent right to judicial review was not raised. However, the Court resolved an important question regarding the remainder of section 19 and expressed its view of the Legislature's intent in enacting the APTRA. After setting out the entire text of section 19, the Court stated:
Id. at 508.
In 1977 and 1979, three courts of appeals reached different conclusions regarding whether section 19(a) of the APTRA provided an independent right to judicial review when the agency enabling statute neither specifically authorized nor prohibited judicial review. In both Moore v. Texas Employment Commission, 565 S.W.2d 246, 247 (Tex.Civ.App.-Houston [14th Dist.] 1977, no writ) and Texas Health Facilities Commission v. West Texas Home Health Agency, 588 S.W.2d 655, 657 (Tex.Civ.App.-Waco 1979, no writ), the courts concluded, with limited analysis, that section 19(a) did provide an independent right to judicial review.
In Motorola, Inc. v. Bullock, 586 S.W.2d 706, 708-09 (Tex.Civ.App.-Austin 1979, no writ), the Third Court of Appeals concluded that section 19(a) of the APTRA did not provide an independent right to judicial review, stating:
Id. at 709. However, the court failed to quote, analyze the plain meaning of, or otherwise directly address the first sentence of section 19(a).
In 1981, in Hooks v. Texas Department of Water Resources, 611 S.W.2d 417 (Tex.1981), this Court addressed another important question regarding the APTRA: the interaction between section 19(a) and agency enabling statutes that specifically authorize judicial review.
Id. at 419 (citation omitted) (emphasis added); see also Ingle v. Bullock, 578 S.W.2d 193, 193-94 (Tex.Civ.App.-Austin 1979, writ ref'd) (concluding that a person seeking judicial review under section 19(a) of the APTRA must satisfy additional prerequisites for judicial review contained in an agency enabling statute — in this case, prepayment of a disputed tax assessment).
Also in 1981, the Commissioners on Uniform State Laws issued the third Model State Administrative Procedure Act. MODEL STATE ADMIN. PROCEDURE ACT (1981), 15 U.L.A. 1 (2000). Section 5-102 of the 1981 model act is titled "Final Agency Action Reviewable," and subsection (a) thereof provides:
Id. § 5-102(a), at 119 (emphasis added). The official comment to section 5-102 states: "Subsection (a) ties together the threshold requirements for obtaining judicial review of final agency action, and guarantees the right to judicial review if these requirements are met." Id. § 5-102 cmt., at 119. Only three states have adopted the 1981 model act in whole or part.
Certain statements contained in Third Court of Appeals's opinions issued after Motorola, Inc. appear inconsistent with the holding in that case. For example, in Bank of Woodson v. Stewart, 632 S.W.2d 950 (Tex.App.-Austin 1982), dism'd as moot, 641 S.W.2d 230 (Tex.1982), the court of appeals, in determining the trial court's jurisdiction, stated:
Id. at 956-57 (footnote omitted). The footnote following the first sentence quoted above stated:
Id. at 956 n. 4.
In 1986, on motion for rehearing, this Court issued a per curiam opinion in Employees Retirement System v. Blount, 709 S.W.2d 646 (Tex.1986). The case is important because review of the Third Court of Appeals's opinion, the parties' briefing, the legislative action taken while the case was pending, and this Court's opinion reveals a common understanding at that time among the Attorney General, the Legislature, and the Supreme Court that section 19(a) of the APTRA provided an independent right to judicial review.
In the trial court and the court of appeals, the parties agreed that the Employees Retirement System (ERS) had statutory authority to resolve a contractual dispute between Blount and Metropolitan Life Insurance Company in a contested-case hearing and that, although the ERS's enabling statute did not specifically authorize judicial review of the decision, judicial review was available under section 19(a) of the APTRA. The court of appeals, sua sponte, questioned whether the ERS was empowered to adjudicate the dispute. See Blount v. Metro. Life Ins. Co., 677 S.W.2d 565, 569 (Tex.App.-Austin 1984), rev'd, 709 S.W.2d 646 (Tex.1986).
The Third Court of Appeals stated:
In addition, § 4(e) of the Act provides that the trustee shall have full power and authority as to the following:
Id. at 568-70 (text of footnote 1 omitted) (emphasis in original). In footnote number one, the court stated that "[t]he judicial review provisions of APTRA § 19 ensure that judicial review is available in a [contested-case hearing]. APTRA §§ 3(2), 19(a)." Id. at 569 n. 1. The court later noted that the ERS's enabling statute
Id. at 573.
In the ERS's application for writ of error, the Attorney General argued that "the Legislature provided for an administrative procedure which affords [state] employees the right of judicial review under the APA § 19 which may not be defeated by a defense of sovereign immunity" and that "[o]nce the Trustee made its determination, applying the standards set out in the contract for insurance, [Blount] was entitled to seek appeal of the Trustee's decision to the district court under the substantial evidence rule stated in APA § 19." Application for Writ of Error for Employees Retirement System at 10-11, 19, Employees Ret. Sys. v. Blount, 709 S.W.2d 646 (Tex.1986) (available at Supreme Court).
In conclusion, the Attorney General stated:
Id. at 21.
While the case was pending before the Supreme Court, the Legislature amended the relevant enabling statute. See Act of May 9, 1985, 69th Leg., R.S., ch. 155, 1985 Tex. Gen. Laws 685.
On August 1, 1985, the ERS and Metropolitan Life Insurance Company filed a joint motion for rehearing. They informed the Supreme Court of the legislative reaction to the Third Court of Appeals's opinion and asserted:
Petitioners' Joint Motion for Rehearing for Employees Retirement System and Metropolitan Life Insurance Company at 6, Employees Ret. Sys. v. Blount, 709 S.W.2d 646 (Tex.1986) (cause no. C-3448) (filed Aug. 1, 1985) (available at Supreme Court).
On rehearing, this Court reversed the Third Court of Appeals's judgment and affirmed the trial court's judgment. The Court stated that "[t]he primary issue on appeal is whether the ERS trustees have been granted the final binding authority to adjudicate claims of contested cases pursuant to its enabling statute, Tex. Ins.Code Ann. art. 3.50-2 (Vernon 1981) and the Administrative Procedure and Texas Register Act" and concluded that "the agency does have such authority pursuant to Article 3.50-2 and APTRA § 19, and that the trial court properly reviewed the record under the substantial evidence standard." Employees Ret. Sys. v. Blount, 709 S.W.2d at 646. This Court's affirmance of the trial court's judgment necessarily reflects its understanding that section 19(a) of the APTRA provided Blount an independent right to judicial review.
In 1989, the Legislature enacted the Health and Safety Code, a nonsubstantive revision. Health and Safety Code, 71st Leg., R.S., ch. 678, 1989 Tex. Gen. Laws 2230. The revisor's note to section 242.061 reflects that the code drafters relied on the plain meaning of section 19(a) of the APTRA when deleting, as redundant and therefore unnecessary, a provision contained in the underlying source law that specifically authorized judicial review. The Legislature had enacted a comprehensive statute in 1953 regulating nursing homes, providing inter alia for the denial, suspension, and revocation of the required facility license. See Act of May 25, 1953, 53d Leg., R.S., ch. 413, 1953 Tex. Gen. Laws 1005, 1006-07. The statute provided for judicial review by trial de novo. Id. at 1008. In 1985 sunset review legislation, the judicial review provision was amended to provide:
See Act of May 27, 1985, 69th Leg., R.S., ch. 931, 1985 Tex. Gen. Laws 3121, 3134.
In 1989, the judicial review provision was codified as section 242.061(b) of the Health and Safety Code, which provided:
Health and Safety Code, 71st Leg., R.S., ch. 678, 1989 Tex. Gen. Laws 2230, 2469. The revisor's note that accompanied the proposed codification stated:
TEX. HEALTH & SAFETY CODE ANN. § 242.061 revisor's note (Vernon 2001).
In 1990, two members of the judiciary addressed in non-judicial writings whether section 19(a) of the APTRA provided an independent right to judicial review. Justice Powers of the Third Court of Appeals wrote a book about administrative rulemaking, adjudication, and judicial review in Texas. JOHN E. POWERS, AGENCY ADJUDICATIONS (1990).He stated: "By its terms, APTRA Sec. 19(a) seems to create a general statutory cause of action for judicial review of agency decisions in contested cases. The statutory provision has been construed, however, as not creating such a cause of action." Id. at 156. Judge Cofer, a senior district judge in Travis County, authored an article concerning judicial review. Hume Cofer, Judicial Review of Agency Law Decisions on Scope of Agency Authority, 42 BAYLOR L.REV. 255 (1990). He stated: "Tex.Rev.Civ. Stat. Ann. art. 6252-13a, § 19 seems to create a right of review in addition to the statutes that create agencies and also provide for judicial review." Id. at 287 n. 226.
In May 1993, the APTRA was codified in the Government Code, a nonsubstantive revision. Government Code, 73d Leg., R.S., ch. 268, 1993 Tex. Gen. Laws 583. The first sentence of section 19(a) became section 2001.171, which provides: "A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter." TEX. GOV'T CODE § 2001.171 (emphasis added).
In June 1993, in Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485,
Id. at 56-57; see also Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir.1998) ("Section 702 of the APA creates a cause of action for' [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.'").
In December 1993, for the first time since deciding Motorola, Inc. v. Bullock in 1979, the Third Court of Appeals held that section 2001.171 of the APA did not "create a right of judicial review." Southwest Airlines v. Tex. High-Speed Rail Auth., 867 S.W.2d 154, 158 (Tex.App.-Austin 1993, writ denied). The opinion was issued seven months after the APTRA was codified, and eighteen years after it was originally enacted. With regard to whether section 2001.171 of the APA provided an independent right to judicial review, the court stated only:
Id. (citations and footnotes omitted). In contrast, in Texas Department of Human Services v. ARA Living Centers, 833 S.W.2d 689 (Tex.App.-Austin 1992, writ denied), the Third Court of Appeals had previously acknowledged that section 12 of the APTRA, now section 2001.038 of the APA,
Id. at 693.
In 1995, the Third Court of Appeals decided Employees Retirement System v. Foy, 896 S.W.2d 314 (Tex.App.-Austin 1995, writ denied). With regard to section 2001.171 of the APA, the court stated:
Id. at 316. Since Foy, the Third Court of Appeals has refused to interpret broadly the term "contested case." See, e.g., Best & Co. v. Tex. State Bd. of Plumbing Exam'rs, 927 S.W.2d 306, 309 (Tex.App.-Austin 1996, writ denied) ("We reject a proposed construction of the definition [of contested case] that would require an agency to follow contested-case procedures any time rights, duties, or privileges of a party are determined, without regard to whether an adjudicative hearing is required or provided. See Employees Retirement Sys. v. Foy, 896 S.W.2d 314, 316
In 1997, the Legislature enacted the Finance Code, a nonsubstantive revision. Finance Code, 75th Leg., R.S., ch. 1008, 1997 Tex. Gen. Laws 3091. The revisor's note to section 152.210 reflects that the code drafters relied on the plain meaning of section 2001.171 of the APA when deleting a provision that specifically authorized judicial review. Section 15 of the Sale of Checks Act, the underlying source law, granted a right of judicial review to applicants for and holders of the required business license. See Act of Sept. 4, 1986, 69th Leg., 2d C.S., ch. 16, 1986 Tex. Gen. Laws 40, 44. Section 15 was codified in sections 152.210 and 152.307 of the Finance Code. See Finance Code, 75th Leg., R.S., ch. 1008, 1997 Tex. Gen. Laws 3091, 3372, 3374. The revisor's note for section 152.210 stated:
TEX. FIN.CODE ANN. § 152.210 revisor's note (Vernon 1998); see also id. § 152.307 revisor's note (restating by reference the revisor's note to section 152.210); id. § 152.506 revisor's note (stating that the provision specifically authorizing judicial review of cease and desist orders was deleted as unnecessary).
Also in 1997, the Legislature passed sunset review legislation for the TDPRS (1997 enactment). Act of May 31, 1997, 75th Leg., R.S., ch. 1022, 1997 Tex. Gen. Laws 3733. A Sunset Advisory Commission report on the TDPRS issued in 1996 during the legislative interim discussed sixteen issues. See TEXAS SUNSET ADVISORY COMMISSION, DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES: STAFF REPORT (1996) (available at Legislative Reference Library). With regard to issue number fifteen, titled "Improve the Administrative Hearings Process Through Transfer to the State Office of Administrative Hearings," the report stated: "This recommendation would transfer the Department's APA hearing function to the State Office of Administrative Hearings.... As with the current hearings process, the decisions by the ALJ would be final unless appealed to court." Id. at 147, 151.
Chapter 40 of the Human Resources Code contains general provisions related to the TDPRS. The 1997 enactment added section 40.066 to the Human Resources Code. Act of May 31, 1997, 75th Leg., R.S., ch. 1022, 1997 Tex. Gen. Laws 3733, 3741. The section required the TDPRS and the State Office of Administrative Hearings (SOAH) to "adopt a memorandum of understanding under which the State Office of Administrative Hearings, on behalf of the department, conducts all contested case hearings authorized or required by law to be conducted by the department under the administrative procedure law, Chapter 2001, Government Code." Id.
Certain facilities, homes, and agencies that provide child-care services are regulated by the TDPRS under Chapter 42 of the Human Resources Code. The 1997 enactment substantially amended section 42.072 of the Human Resources Code, which governs the revocation of a child-care
The 1997 enactment also added section 42.078 to the Human Resources Code, which contained the standardized administrative penalty language recommended by the Sunset Advisory Commission. See id. at 3751-53. Section 42.078 applied to the holder of a child-care facility license and authorized administrative orders imposing a monetary penalty. The section did not expressly authorize judicial review. Instead, it relied on the independent right to judicial review provided by section 2001.171 of the APA.
Child-care administrators are regulated by the TDPRS under Chapter 43 of the
Senate Bill 359 was the TDPRS's sunset legislation. Tex. S.B. 359, 75th Leg., R.S. (1997) (available at Legislative Reference Library). The final legislative bill analysis prepared for Senate Bill 359 stated that the "language relating to a hearings and appeals process" contained in section 42.072 of the Human Resources Code was relocated to section 42.078. HOUSE COMM. ON HUMAN SERVICES, BILL ANALYSIS (May 6, 1997), Tex. S.B. 359, 75th Leg., R.S. (1997) (available at Legislative Reference Library).
Both bill analyses were incorrect. Section 42.078 of the Human Resources Code, the new administrative penalty section, did not contain the judicial review language that had been deleted from section 42.072.
V
The TDPRS asserts that because section 19(a) of the APTRA was not substantively amended in 1993 when it was codified, the Legislature has adopted the
Section 2001.171 of the APA provides: "A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter." Tex. Gov't Code § 2001.171 (emphasis added). Mega Child Care and the TLCCA rely on the plain language of section 2001.171. The TDPRS asserts that section 2001.171 "can fairly be read to set forth necessary — but not sufficient — conditions that must be satisfied to qualify for any judicial review that the Legislature has provided in the enabling statute."
The Third Court of Appeals's interpretation of the phrase "is entitled to judicial review" appears to be unique. The TDPRS contends that the court decisions from states with similar judicial review provisions are mixed. However, the TDPRS has cited no cases from other jurisdictions that support the Third Court of Appeals's interpretation of section 2001.171 of the APA, and our own extensive research has located none. Moreover, neither Motorola, Inc., Southwest Airlines, nor Foy has been cited by a court outside of Texas. In any event, we resolve the conflict among our courts of appeals regarding the proper interpretation of section 2001.171 by applying the plain meaning rule, a well-established rule of statutory construction in Texas.
Section 311.016 of the Government Code, part of the Code Construction Act, provides:
TEX. GOV'T CODE § 311.016. This construction is consistent with dictionary definitions of the term "entitle."
In the context of the Texas Administrative Procedure Act, the phrase "is entitled to judicial review" is unambiguous and, therefore, the plain language of section 2001.171 of the APA creates an independent right to judicial review for those who satisfy the section's threshold requirements. As stated in part III, when the text is unambiguous, a court may disregard the interpretation supported by the statute's plain language only if that interpretation would lead to absurd results. With regard to section 2001.171, we have no basis to conclude that the interpretation supported by its plain language would lead to absurd results.
Employees Ret. Sys. v. Foy, 896 S.W.2d 314, 316 (Tex.App.-Austin 1995, writ denied) (citation omitted).
For various reasons, the Legislature has exempted certain state agencies and particular administrative decisions from all or part of the APA. For example, when originally enacted, the APTRA contained complete exemptions for state agencies wholly financed by federal funds, the Industrial Accident Board, institutions of higher education, and suspensions of driver's licenses. See APTRA, 64th Leg., R.S., ch. 61, 1975 Tex. Gen. Laws 136, 137, 147. Since 1975, the Legislature has enacted additional exemptions. One of the exemptions, section 2001.226 of the APA, provides:
TEX. GOV'T CODE § 2001.226. This exemption, originally enacted in 1993, addresses the hypothetical problems raised by the Third Court of Appeals in its 1995 Foy decision concerning "such administrative controversies as the taking away of `good time' from thousands of state prisoners." Foy, 896 S.W.2d at 316.
The TDPRS asserts that section 2001.171 of the APA neither creates a right to judicial review nor waives the state's sovereign immunity. Our conclusion that section 2001.171 provides an independent right to judicial review when an agency enabling statute neither specifically authorizes nor prohibits judicial review is, as a practical matter, dispositive of the sovereign immunity issue.
Section 2001.174 of the APA provides:
TEX. GOV'T CODE § 2001.174.
When providing an independent right to judicial review in section 2001.171 of the APA, the Legislature necessarily understood that state agencies would be sued in court by persons exercising that right, that contested-case decisions of those agencies would be judicially reviewed under the standards set forth in section 2001.174, and that the challenged administrative decisions would be either affirmed, reversed, or remanded as provided by section 2001.174. Therefore, we conclude that section 2001.171 provides a limited waiver of sovereign immunity. Cf. Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (concluding that the Texas Uniform Declaratory Judgments Act provides a limited waiver of governmental immunity).
Our resolution of the sovereign immunity issue is consistent with precedent from courts of appeals concluding that judicial review provisions waive immunity. See Gruber v. Tex. State Bd. of Pharmacy, 619 S.W.2d 564, 567 (Tex.Civ.App.-San Antonio 1981, no writ) ("There is no question that the appellant is an entitled party to judicial review under section 19(a) [of the APTRA].Consequently, the defense of sovereign immunity is not applicable...."); Stanfield v. Tex. Dep't of Pub. Safety, 422 S.W.2d 14, 20 (Tex.Civ.App.-Dallas 1967, writ ref'd n.r.e.) ("Appellee's contention that the trial court lacked jurisdiction because the suit [for judicial review] was one against an agency of the State of Texas and that the State cannot be sued without its express consent must be denied. This is so for the very obvious reason that the Legislature has [in the agency enabling statute] specifically granted such right to bring the suit.").
The TDPRS asserts that, even if section 2001.171 of the APA generally provides an independent right to judicial review, the intent of the TDPRS's 1997 sunset review legislation (1997 enactment) was to prohibit judicial review of administrative decisions revoking a child-care facility license. Section 42.072 of the Human Resources Code, which governs the revocation of a child-care facility license, is currently silent with regard to the availability of judicial review; its text neither expressly authorizes nor prohibits judicial review. See Tex. Hum. Res.Code § 42.072. In 1997, the TDPRS's sunset review legislation deleted former section 42.072(e), which had expressly authorized de novo judicial review and provided for venue in either "Travis County or the county in which the person's facility is located." Act of May 31, 1997, 75th Leg., R.S., ch. 1022, 1997 Tex. Gen. Laws 3733, 3749.
The TDPRS argues that "[h]ere, the Legislature has expressly manifested its intent to foreclose judicial review of the Department's actions" and, more specifically, that "[t]he fact that the Legislature did not repeal the provision allowing for judicial review of a child-care administrator's license but did repeal the provision allowing for judicial review of a child-care facility's license strongly indicates its intent to eliminate the right to judicial review for the latter category." In response, the TLCCA contends that "[t]he changes made to section 42.072, as a part of a broader set of changes from the 1997 PRS
In the 1997 enactment, the Legislature could have expressly prohibited judicial review of contested-case decisions made under section 42.072 of the Human Resources Code. For example, chapter 2260 of the Government Code establishes an administrative procedure to resolve breach-of-contract claims against the state, and section 2260.104(f) provides: "Subchapter G, Chapter 2001 [sections 2001.171-178 of the APA], does not apply to a [contested-case] hearing under this section." TEX. GOV'T CODE § 2260.104(f); see also Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex.2001) ("[T]he Legislature has expressly precluded judicial review of the administrative judge's rulings under Chapter 2260.").
In this context, certain jurisdictions, including some states that have incorporated the first sentence of section 15(a) of the 1961 model act in their administrative procedure acts, have employed special rules of statutory construction. See, e.g., Holding's Little Am. v. Bd. of County Comm'rs, 670 P.2d 699, 702-03 (Wyo.1983) ("The right of judicial review of an administrative decision is statutory.... And, to preclude judicial review, the statute, if not specific in withholding that review, must give clear and convincing evidence of an intent to restrict."). We disagree with this approach. Therefore, we will ascertain and effectuate the legislative intent in this context without applying a special rule of statutory construction.
Deleting the language that authorized judicial review, established a de novo scope of review, and provided for local venue from section 42.072 of the Human Resources Code, while retaining the language that authorizes judicial review, establishes a de novo scope of review, and provides for exclusive local venue contained in section 43.011, is some evidence of a legislative intent to prohibit judicial review of contested-case decisions made under section 42.072. However, the TDPRS has provided no legislative history regarding the 1997 enactment that reflects an intent to prohibit judicial review of those decisions, and our own research has discovered none. In fact, the limited legislative history that is available indicates an intent to maintain rather than prohibit judicial review.
In the absence of express statutory language prohibiting judicial review, a legislative intent to prohibit judicial review must be established by specific legislative history or other reliable evidence of intent. Given the inconclusive evidence regarding legislative intent in this case, we conclude that, in enacting the TDPRS's 1997 sunset review legislation, the Legislature did not intend to prohibit judicial review of contested-case decisions made under section 42.072 of the Human Resources Code.
Based on the foregoing, we conclude that Mega Child Care is entitled to judicial review of the administrative decision to revoke its child-care facility license. Accordingly, we affirm the court of appeals's judgment.
Justice OWEN filed a concurring opinion.
Justice SCHNEIDER did not participate in the decision.
Justice OWEN, concurring.
I join the Court's judgment and most of what it has written. I write separately
The Department of Protective and Regulatory Services revoked Mega's license in 1998. A hearing was held before an Administrative Law Judge in the State Office of Administrative Hearings, and an ALJ sustained the Department's ruling. Mega sought review in a Harris County District Court. The trial court dismissed the case for want of jurisdiction. The court of appeals reversed and remanded, concluding that section 2001.171 of the Texas Administrative Procedure Act
Mega is a child-care facility, and the licensing of such facilities is governed by Chapter 42 of the Human Resources Code.
The 1997 amendments to section 42.072 deleted the sentence in subsection (e) regarding de novo review in district court, but other language was added regarding an appeal and the Administrative Procedure Act. Section 42.072, as amended, provided:
Accordingly, pending an appeal, a child-care facility may seek an injunction from a district court in the county where it is located or in Travis County to maintain the status quo.
Section 2001.176 states that unless otherwise provided by statute, a petition for judicial review must be filed in Travis County.
Additionally, section 2001.174 provides that if the law does not define the scope of judicial review, the substantial evidence rule governs.
The State argues that the references to an "appeal" in section 42.072 are only to an "appeal" to the State Office of Administrative Hearings, and that a "final agency action" within the meaning of section 42.072(e) is the Department's revocation or denial of a license, not a determination by a hearing officer in a contested case. Such a cramped construction of section 42.072 is an unreasonable one.
The State additionally argues that there is clear legislative intent that there is no judicial review available to child-care facilities in these circumstances because the Legislature deleted the sentence that was formerly in subsection (e) regarding de novo judicial review, but left similar language intact in Chapter 43, which governs the licensing of child-care administrators. Section 43.011 provides:
This disparate treatment of child-care facilities and child-care administrators is not a basis for ignoring the language in section 42.072 that refers to a right to an appeal and also specifically refers to the Administrative Procedure Act. The reasons the Legislature chose review by trial de novo and venue in counties in addition to Travis County for child-care administrators but not for child-care facilities may not be readily apparent. But we cannot draw from this disparate treatment an intent to deny judicial review to child-care facilities.
With regard to any guidance we may obtain from the United States Supreme Court in its construction of the federal Administrative Procedure Act, I note that subsequent to that court's decision in Abbott Laboratories v. Gardner,
However, as discussed above, section 42.072 is not silent about judicial review
One other matter is whether to remand this case to the Harris County District Court from which it came. As discussed, section 2001.176 directs that a petition for judicial review is to be filed in Travis County.
I accordingly concur in the judgment rendered by the Court.
FootNotes
Section 4B. ADJUDICATION OF CLAIMS. (a) The executive director of the Employees Retirement System of Texas has exclusive authority to decide all questions relating to enrollment in or payment of claims arising from programs or coverages provided under authority of this Act, other than questions relating to payment of claims by a health maintenance organization.
(b) A decision by the executive director under this section may be appealed only to the trustee. An appeal to the trustee is a contested case under the Administrative Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
(c) On appeal of a decision made by the trustee under this section, the standard of review is by substantial evidence.
Id. at 686 (emphasis in original).
Sec. 42.072. LICENSE OR REGISTRATION DENIAL, SUSPENSION, OR REVOCATION. (a) The department [division] may suspend, deny, [or] revoke, or refuse to renew the license, registration, or certification of approval of a facility or family home that does not comply with the requirements of this chapter, the standards and rules of the department, or the specific terms of the license, registration, or certification. The department may revoke the probation of a person whose license or registration is suspended if the person violates a term of the conditions of probation.
(b) If the department proposes to take an action under Subsection (a), the person is entitled to a hearing conducted by the State Office of Administrative Hearings. Proceedings for a disciplinary action are governed by the administrative procedure law, Chapter 2001, Government Code. Rules of practice adopted by the board under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings. [The division shall notify the person operating or proposing to operate a facility of the reasons for the denial or revocation and of the person's right to appeal the decision within 30 days after receiving the notice.]
(c) [A person who wishes to appeal a license denial or revocation shall notify the director by certified mail within 30 days after receiving the notice required in Subsection (b) of this section. The person shall send a copy of the notice of appeal to the assigned division representative.
[(d) The denial or revocation of a license or certification and the appeal from that action are governed by the procedure for a contested case hearing under Chapter 2001, Government Code.
[(e) A person whose license has been denied or revoked may challenge the decision by filing a suit in a district court of Travis County or the county in which the person's facility is located within 30 days after receiving the decision. The trial shall be de novo.
[(f) Records of the hearing shall be kept for two years after a decision is rendered. On request, and at the person's own expense, the division shall supply a copy of the verbatim transcript of the hearing to a person appealing a license denial or revocation in district court.
[(g) A person may continue to operate a facility during an appeal of a license denial or revocation unless the division has obtained injunctive relief under Section 42.074 or civil penalties under Section 42.075 or the facility has been closed under Section 42.073.
[(h)] A person whose license, registration, or certification is revoked may not apply for any license, registration, or certification under this chapter before the second anniversary of the date on which the revocation takes effect by department or court order.
(d) The department by rule may provide for denial of an application or renewal for a licensed facility, for certification of approval of a facility, or for registering a family home or may revoke a facility's license or certification or a family home's registration based on findings of criminal history as a result of a background or criminal history check.
Id. (emphasis and strikeout in original).
SECTION 30. Amends Section 42.072(a)-(d).
(a) Includes suspension and refusal to renew the license or certification of approval of a facility as penalties for a facility that does not comply with the rules of DPRS or specific terms of the license or certification. Extends to DPRS the authority to revoke the probation of a license holder whose license is suspended if a term of the conditions of probation is violated.
(b) Adds standard language developed by the Sunset Commission. Entitles licensees to a hearing conducted by the State Office of Administrative Hearings before any sanction may be taken against their license.
(c) Reletters subsections and deletes language relating to a hearings and appeals process. Relocates this language to Section 42.078. Specifies that a person whose license, registration, or certification is revoked may not apply for any license, registration, or certification under this chapter until two years after the date on which the revocation occurred.
(d) Authorizes DPRS, by rule, to provide for denial of an application or renewal for a licensed facility or for registering a family home or may revoke a facility's license or a family home's registration based on findings of criminal history as a result of a background or criminal history check.
Id. (emphasis added).
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