Court of Appeals of Texas, Houston (1st Dist.).

Elmer F. WILLIAMS, II, Appellant

v.

HOUSTON FIREMEN’S RELIEF AND RETIREMENT FUND,¹ Appellee

No. 01-98-00681-CV.

|

Feb. 11, 1999.

OPINION ON REHEARING

COHEN, J.

*1 We deny Williams’ rehearing motion, but we withdraw our opinion dated January 21, 1999 and substitute this opinion in its place.

Williams takes this interlocutory appeal from the granting of the partial motion to dismiss for lack of jurisdiction over appellee, the Fund. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(8) (Vernon Supp.1999). We affirm.

I. Background

We construe Williams’s pleadings in his favor and take those allegations as true. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

Williams joined the Houston Fire Department (HFD) and the Fund in 1990, after six years and five months of service with two other cities’ fire departments, neither of which had statutory firefighters’ retirement funds like Houston’s. In 1995, Williams sought credit for these six and one half previous years service toward his retirement with HFD. While his request was pending, the Fund adopted a new interpretation of the retirement credit transfer statute,² i.e., that years worked outside Houston could be credited to the Fund only if the former city also had a statutory firefighter’s fund. Applying the new statutory interpretation, the Fund denied Williams’s retirement credit request in January 1997.

That same year, Williams sued in district court, asserting the following claims:

Constitutional claims

1. Tex.Rev.Civ. Stat. Ann. article 6243e.2(1) is an unconstitutional delegation of governmental authority;

2. The Fund’s rulemaking and decision are unlawful and unconstitutional retroactive applications of the law;

3. The Fund’s rulemaking is an unconstitutional local law; and

4. The Fund’s construction and application of the statute denied equal protection under the state and federal constitutions, which denial also constituted a 42 U.S.C. section 1983 violation.

Claims Relating to Statutory Authority

1. The Fund misconstrued former Tex.Rev.Civ. Stat. Ann. article 6243e.2, section 30; and

2. The Fund adopted and applied rules inconsistent with and in violation of that former statute.

Challenges on the Merits

1. No or insufficient evidence supported the Fund’s decision;

2. The Fund’s decision was not supported by substantial evidence;

3. The Fund’s decision was unreasonable, arbitrary, capricious, or an abuse of discretion; and

4. The Fund’s ruling was barred by res judicata, claim preclusion, issue preclusion, waiver, estoppel, and collateral estoppel.

The Fund moved to dismiss certain of Williams’s claims for lack of subject matter jurisdiction. The trial judge dismissed all Williams’s claims without prejudice except (1) his four constitutional claims and (2) his claim that the Fund’s ruling was barred by res judicata, claim preclusion, issue preclusion, waiver, estoppel, and collateral estoppel.

In two issues, Williams contends the trial judge erred in dismissing his claims because (a) the trial court had appellate jurisdiction to review the Fund’s ruling and (b) the trial court had original jurisdiction to construe article 6243e.2(1) and to determine if the Fund acted outside its statutory powers.

II. Appellate Jurisdiction

*2 Under issue two, Williams argues the trial court had appellate jurisdiction because the following provide for review of the Fund’s decision without further delay: (1) article 6243e.2(1); (2) the Federal Constitution’s equal protection clause; and (3) the Texas Constitution’s article V, section 8. Williams’s “appellate jurisdiction” challenge applies to all his dismissed claims.

A. Article 6243e.2(1)

When, as here, a cause of action and remedy for its enforcement are derived from statute, the statutory provisions for review are mandatory and exclusive. E.g., Texas Catastrophe Prop. Ins. Ass’n v. Council of Co-Owners of Saida II Towers Condominium Ass’n, 706 S.W.2d 644, 645-46 (Tex.1986). An aggrieved party must comply with the statutory provisions in all respects, or the trial court has no jurisdiction over his action. Id. Therefore, no right of judicial review from a State administrative agency’s action exists unless a statute provides for review or the action violates constitutional due process. Firemen’s & Policemen’s Civil Serv. Comm’n of Fort Worth v. Blanchard, 582 S.W.2d 778, 778-79 (Tex.1979).

Article 6243e.2(1) provides as follows:

Each decision of the [Fund’s] board in a matter under the board’s jurisdiction is final and binding as to each affected firefighter, member, and beneficiary, subject only to the rights of appeal specified by this article.

Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 2(j) (Vernon Supp.1999) (emphasis added). Section 12,³ the sole section mentioning judicial appeal, provides as follows:

(a) A member who is eligible for retirement for length of service or disability or who has a claim for temporary disability, or any of the member’s beneficiaries, who is aggrieved by a decision or order of the [Fund’s] board, whether on the basis of rejection of a claim or of the amount allowed, may appeal from the decision or order of the board to a district court in the county in which the board is located by giving written notice of the intention to appeal….

Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 12(a) (Vernon Supp.1999) (emphasis supplied).

Williams reads section 2(j) to allow an appeal of any board decision, presumably because the decision is “final,” concluding section 12(a) merely specifies appellate procedures for two non-exclusive classes of appellants (those eligible for retirement or with temporary disability). Williams also argues that section 12(c)-which allows the court to consider evidence not in the administrative record-implies a right of immediate appeal, because evidence could be lost in the years between the denial of a firefighter’s service credit request and his retirement. See Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 12(c) (Vernon Supp.1999). The Fund reads section 12(a) as the only provision providing for appellate review. Accordingly, the Fund argues Williams may not challenge its credit decision until at least 2003, the earliest possible date he would be “eligible for retirement,” as described in section 12(a).⁴

*3 While section 2(j) makes the board’s decisions final, it expressly makes those decisions “subject only to the rights of appeal specified by this article.” Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 2(j). Section 2(j) does not expressly authorize appeals. Additionally, not every final administrative decision is appealable. See, e.g., Harris v. Civil Serv. Comm’n for Mun. Employees of the City of Houston, 803 S.W.2d 729, 730 (Tex.App.-Houston [14th Dist.] 1990, no writ); Pruitt v. City of Houston, 548 S.W.2d 90, 93 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ). We agree with the Fund that the only section allowing a right of appeal is section 12(a), which limits appeals to (1) aggrieved “members”⁵ who (2) are “eligible for retirement” for length of service or disability or (3) who have a claim for temporary disability and (4) any of these members’ beneficiaries. Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 12(a). If a statute is silent concerning appeal from an administrative body’s action, then no appeal lies, but courts will recognize an inherent right to appeal if the administrative action violates a constitutional provision or fits other limited exceptions not applicable here. E.g., Firemen’s & Policemen’s Civil Serv. Comm’n of Fort Worth v. Kennedy, 514 S.W.2d 237, 240 (Tex.1974); City of Amarillo v. Hancock, 239 S.W.2d 788, 790 (Tex.1951). Williams’s constitutional challenges are not before us, and article 6243e.2(1) on its face does not allow for judicial review of the fund’s credit determination until Williams meets section 12(a)’s requirements. Moreover, we find no implied right of appeal in section 12(c). The fact that evidence might be lost does not change the text of the statutes.

Accordingly, we overrule this challenge to the dismissal order.

B. Equal Protection Clause

Williams argues that the dismissal order violates the Fourteenth Amendment’s equal protection clause, because only an immediate right of appeal treats all firefighters equally. We conclude that this argument falls under Williams’s equal protection claim below: “The Fund’s construction and application of the statute denied Mr. Williams equal protection of the law under the Texas Constitution and the United States Constitution.” This claim was not dismissed and is not before us.

C. Texas Constitution Article V, § 8

Williams next argues that 1985 amendments to Texas Constitution article V, section 8 allow for immediate review of the Fund’s service credit determination.

Before 1985, article V, section 8 read in pertinent part as follows:

The district court shall have … general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this constitution, and such other jurisdiction, original and appellate, as may be provided by law.

Tex. Const. art. V, § 8 (amended 1891, 1973). In 1985, the article was amended to read in pertinent part as follows:

*4 District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body….

Tex. Const. art. V, § 8.

Williams relies on Farmers Texas County Mutual Insurance Company v. Griffin, in which the Supreme Court stated the 1985 amendment significantly broadened district court jurisdiction. 955 S .W.2d 81, 84 (Tex.1997). However, Griffin is distinguishable, because it was not an appeal of administrative agency action, which requires statutory authorization.

When no statute allows for review of an administrative action, amended article V, section 8 allows review only if the action violates a constitutional right, an issue that is still before the trial court; adversely affects a vested property right, an issue not presented in this appeal; exceeds the agency’s jurisdiction, which we discuss below; or fits a like exception, which Williams does not allege. Yamaha Motor Corp., U.S.A. v. Motor Vehicle Div., Texas Dept. of Transp., 860 S.W.2d 223, 230 (Tex.App.-Austin 1993, writ denied) (action exceeding agency’s jurisdiction); Texas Water Comm’n v. Lindsey, 850 S.W.2d 183, 188 (Tex.App.-Beaumont 1992, no writ) (constitutionality of statute); Sells v. Roose, 769 S.W .2d 641, 643 (Tex.App.-Austin 1989, no writ) (vested property right affected). Accordingly, we overrule this challenge to the dismissal order.

We overrule Williams’s issue two in its entirety.

III. Original Jurisdiction

Under issue one, Williams argues the trial court had original jurisdiction to (1) consider whether the Fund exceeded its statutory authority and (2) construe article 6243e.2(1). Williams’s “original jurisdiction” challenges apply only to his claims that the Fund “misconstrued” and “adopted rules inconsistent with and in violation of” former section 30.

A. Exceeding Statutory Authority

Courts generally do not interfere in an administrative agency’s duties and functions, but will intervene and give declaratory relief when the agency exercises authority beyond its statutorily conferred powers. Nuchia v. Woodruff, 956 S.W.2d 612, 616 (Tex.App.-Houston [14th Dist.] 1997, pet. denied); see City of Sherman v. Public Utility Comm’n of Texas, 643 S.W.2d 681, 683 (Tex.1983). Williams alleged the Fund “misconstrued” and “adopted rules inconsistent with and in violation of” former Tex.Rev.Civ. Stat. Ann. article 6243e.2, section 30.

Williams complains that the Fund improperly construed former section 30 to mean that, in order to receive retirement credit, the cities from which he transferred had to have statutory firemen’s retirement funds. Article 6243e.2(1) clearly gives the Fund the power to interpret and construe the article and determine members’ legal eligibility for participation, service, and benefits. Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 2(p)(1), (2), (5) (Vernon Supp.1999). In this interlocutory appeal, Williams does not challenge the fact that the Fund has this statutory authority or the statute’s validity (the latter remains before the trial judge). Rather, we interpret Williams’s complaint to be that the Fund wrongly construed the statute, which is not a complaint that the Fund acted outside its statutory authority.⁶ Texas Comm’n of Licensing & Regulation v. Model Search Am., Inc., 953 S.W.2d 289, 292 (Tex.App.-Austin 1997, no writ);⁷ North Alamo Water Supply Corp. v. Texas Dept. of Health, 839 S.W.2d 455, 459 (Tex.App.-Austin 1992, writ denied); see Texas Educ. Agency v. Cypress-Fairbanks Ind. Sch. Dist., 830 S.W.2d 88, 90-91 (Tex.1992).

*5 Williams relies on City of Sherman v. Public Utility Commission of Texas⁸ and Nuchia v. Woodruff,⁹ which we find distinguishable. In the case before us, the statute expressly allows the Fund to interpret and construe the article and determine members’ legal eligibility for participation, service, and benefits. Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 2(p)(1), (2), (5). This was not the situation in City of Sherman and Woodruff. The City of Sherman court held the statute did not give the PUC jurisdiction to regulate operations of municipally-owned utilities, contrary to the PUC commissioner’s determination, and the Woodruff parties disputed whether the statute gave a hearing examiner jurisdiction to take the action he had taken. Woodruff, 956 S.W.2d at 616; City of Sherman, 643 S.W.2d at 684-85.

Accordingly, we overrule this challenge to the dismissal order.

B. Construction of Article 6243.2(1)

Williams first contends that the Texas Trust Act section 115.001 grants the trial court original and exclusive jurisdiction to construe article 6243e.2, section 30. Tex. Prop.Code Ann. § 115 .001(a) (Vernon 1995). We decline to decide that issue because Williams did not make that argument in the district court. He did not mention the Texas Trust Act until his fifth amended petition, which was filed in the trial court only five days before oral argument in our Court. This issue was not raised here until oral argument. Consequently, there is no trial court ruling for us to review.

Williams next argues the construction of former Tex.Rev.Civ. Stat. Ann. article 6243e.2, section 30 is a pure question of law over which the trial court has original jurisdiction.

It is undisputed that the fire departments in which Williams had previously worked were in cities without statutory firement’s retirement funds. The sole reason the Fund denied Williams’s service credit request is that his prior years of service were in such cities, contrary to the Fund’s interpretation of former section 30. We, therefore, agree with Williams that the interpretation of former section 30 is a purely legal issue. See Public Util. Bd. of City of Brownsville v. Central Power & Light Co., 587 S.W.2d 782, 788 (Tex.Civ.App.-Corpus Christi 1979, writ ref’d n.r.e.) (holding construction of statute is inherently judicial determination).

Williams first relies on the line of cases holding that a court may review purely legal questions without the plaintiff’s exhausting administrative remedies unless a statute authorizes the agency to decide the question.¹⁰ However, this case is not about exhausting administrative remedies, because all agree that Williams did so. Moreover, article 6243e.2(1) empowers the Fund to construe the article and determine members’ eligibility for participation, service, and benefits. Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 2(p)(1), (2), (5).

Williams next relies on the line of cases holding that if a court stays an action pending an agency’s resolution of part of the case (“primary jurisdiction” doctrine), the court may still consider inherently judicial questions unless a statute grants the agency exclusive jurisdiction.¹¹ However, this case is not about primary jurisdiction; the Fund has concluded its determination.

*6 Article 6243e.2(1) does not expressly state the Fund has exclusive jurisdiction to construe the statute. We have already held the statute does not provide for appeal of the Fund’s service credit determinations until the member is eligible for retirement or temporary disability. See Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 12(a). The question becomes the following: if we hold the district court has original jurisdiction to construe former section 30 now-simply because article 6243e.2(1) does not expressly state the Fund has “exclusive” power to interpret the article-are we in fact allowing an appeal disallowed at this time by section 12(a) of the same article?

We believe the answer is “yes.” Article 6243e.2(1) contemplates a member’s appellate challenge after he becomes eligible for retirement or disability. Were we to recognize an inherent right of review of statutory interpretation before then, section 12(a)’s appeal rule would mean nothing. The exhaustion-o f-administrative-remedies cases Williams cites are not dispositive, because the enabling statutes considered in them allowed for present appeal once administrative remedies were exhausted. See Grounds, 707 S.W.2d at 892; Birdville Indep. Sch. Dist. v. First Baptist Church of Haltom City, 788 S.W.2d 26, 28-29 (Tex.App.-Fort Worth 1988, writ denied); see also Johnson Controls, 813 S.W.2d at 566 .¹² Here, in contrast, we have held article 6243e.2(1) does not allow a present right of appeal.

A claimant may exhaust all administrative remedies and still have no present right of judicial review. Williams has none under the statute.

We overrule this challenge to the dismissal order.

We overrule Williams’s issue one in its entirety.

IV. Conclusion

We affirm the trial judge’s order granting the Fund’s jurisdictional plea.

	Footnotes
1		The Fund is now known as the Houston Firefighter’s Relief and Retirement Fund.
2		The former retirement credit transfer provision provided in pertinent part as follows: A firefighter who transfers from the fire department of one city to that of a city covered by this Act and desires to participate in the fund of that city shall … [meet three requirements].” Former Tex.Rev.Civ. Stat. Ann. art. 6243e.2, § 30(a) (repealed effective Nov. 1, 1997). The current retirement credit transfer provision provides as follows: A person who becomes a firefighter in a municipality to which this article applies may receive service credit for prior employment with the fully paid fire department of another municipality in this state with a similar fund benefitting only firefighters of that municipality to which the firefighter contributed if … [the firefighter meets five requirements].” Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 16(a) (Vernon Supp.1999) (effective Nov. 1, 1997) (emphasis added). The Fund construed the first sentence of former section 30(a) to mean what the italicized portion of current section 16(a) now expressly says. The correctness of the Fund’s interpretation of former section 30 is not before us. Nor is the applicability of former section 30, in light of recent amendments. Because the parties assume that former section 30 applies, and because the sections differ materially, we will refer to former section 30 in this opinion, without deciding its application. Otherwise, for simplicity’s sake, we will refer to other provisions of the current version of the statute (article 6243e.2(1)) throughout this opinion.
3		The parties rely on former Tex.Rev.Civ. Stat. Ann. article 6243e.2, section 17, which was repealed effective November 1, 1997. The current provision governing such appeals is Tex.Rev.Civ. Stat. Ann. article 6243e.2(1), section 12 (Vernon Supp.1999). The current provision has no applicable savings clause and, thus, now applies to this suit. See Firemen’s Pension Comm’n v. Jones, 939 S.W.2d 730, 733 (Tex.App.-Austin 1997, no writ); Crawford v. City of Houston, 600 S.W.2d 891, 893 (Tex.App.-Houston [1st Dist.] 1980, writ ref’d n.r.e.). We note, however, that the former and current provisions do not differ in any way affecting the parties.
4		If Williams’s interpretation of former section 30 is correct, he will be eligible to retire in 2003. See Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 4(a) (Vernon Supp.1999). If the Fund’s interpretation is correct, Williams will not be eligible to retire until 2010. See id.
5		A “member” is a firefighter or former firefighter who has satisfied the eligibility requirements under article 6243e.2(1) section 13 and who has not yet received a distribution of the entire benefit to which he is entitled. Tex.Rev.Civ. Stat. Ann. art. 6243e.2(1), § 1(13) (Vernon Supp.1999).
6		Williams’s petition alleged that “the Fund misconstrued … [and] … adopted and applied rules inconsistent with and in violation of [the article],” and the crux of his arguments here and below was that the Fund misconstrued the article.
7		“The foregoing impediments to declaratory relief are not avoided by a claim that the opinion given by the Commission’s general counsel and director of enforcement is ultra vires. They had the undoubted authority to interpret the Act’s provisions and to make a decision in that regard. That they ‘might decide ‘wrongly’ … does not vitiate’ their authority to make a decision.” Id. at 292 (quoting North Alamo Water Supply Corp. v. Texas Dept. of Health, 839 S.W.2d 455, 459 (Tex.App.-Austin 1992, writ denied)).
8		643 S.W.2d 681, 684-85 (Tex.1983).
9		956 S.W.2d 612, 616 (Tex.App.-Houston [14th Dist.] 1997, pet. denied).
10		See International Union of United Auto. Aerospace & Agric. Implement Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 566 (Tex.App.-Dallas 1991, writ denied); see also Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 892 (Tex.1986); Blount v. Metropolitan Life Ins. Co., 677 S.W.2d 565, 569 n. 1 (Tex.App.-Austin 1984), rev’d on other grounds, 709 S.W.2d 646 (Tex.1986).
11		Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411, 415 (Tex.1961); see also Harris County Mun. Utility Dist. No. 48 v. Mitchell, 915 S.W.2d 859, 864-65 (Tex.App.-Houston [1st Dist.] 1995, writ denied).
12		In Johnson Controls, the class representative alleged his employer had violated the Texas Workers’ Compensation Act (WCA) by requiring him to see a particular physician. Id. at 562, 564. He sought an injunction to prevent WCA violations. The employer argued that the plaintiff had to exhaust administrative remedies with the Industrial Accident Board (IAB) before filing suit. Id. at 565-66. The Johnson Controls court disagreed, holding that the court had original jurisdiction to consider the purely legal question of whether the WCA gave the plaintiff the rights he contended were violated. Id. at 566. The IAB had no authority to enjoin the employer, and no adjudicatory responsibility over employers. Id. Here, in contrast, the Fund has legislative authority to do what it did.