Supreme Court of Texas.
Randy ESSENBURG, John Mallios, Leona Stone, H. Averill Sweitzer and Walter Kowalski, Petitioners,
DALLAS COUNTY and Dallas County District Clerk, Respondents.
Sept. 24, 1998.
Attorneys & Firms
*188 Timothy E. Kelley, Dallas, for Petitioners.
John C. Vance, Dallas, for Respondents.
The issue in this case is whether Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445–56 (Tex.1993). If it is merely a notice requirement, lack of compliance cannot be raised for the first time on appeal. The court of appeals held that the provision is jurisdictional and dismissed this case for lack of subject matter jurisdiction. We reverse and remand to the court of appeals for consideration of the merits.
LOC. GOV’T CODE ANN. § 81.041(a). In this case, Randy Essenburg and several other family law attorneys sued Dallas County for wrongfully collecting certain filing fees. The trial court awarded the unlawfully collected filing fees plus attorneys’ fees to the plaintiffs. Dallas County appealed.
On appeal, Dallas County argued for the first time that the plaintiffs’ claims are barred for lack of presentment in compliance with Bowles.
In 925 S.W.2d 652 (Tex.1996) (Dental Practice Act and Administrative Procedure Act)). The presentment requirement, however, is not analogous to the exhaustion of administrative remedies requirement.
It is true that a plaintiff’s failure to exhaust administrative remedies may deprive courts of subject matter jurisdiction in the dispute. This is so because the Legislature in conferring jurisdiction upon an agency expresses its will to have the agency resolve disputed issues of fact and policy. See, e.g., Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (1933).
Accordingly, without hearing oral argument, see TEX.R.APP. P. 59.1, we grant the petition for review and hold that section 81.041 is not jurisdictional and thus may not be raised for the first time on appeal. We remand to the court of appeals for a determination of the merits of the case.
BAKER and HANKINSON, JJ., did not participate in the decision.