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At a Glance:
Title:
453-04-1387-e1
Date:
May 26, 2004

453-04-1387-e1

May 26, 2004

DECISION AND ORDER

On January 21, 2004, the Texas Workers' Compensation Commission (Commission) filed a motion to dismiss a Housing Authority of the City of Houston (HACH) request for hearing (appeal) concerning the Commission's designation of HACH as a "hazardous employer." The Commission argued that the appeal should be dismissed because it was not timely filed in accordance with Commission rules. This order will grant the motion. Pre-hearing conferences were held to consider the motion on February 11, 2004, and April 8, 2004, before the undersigned Administrative Law Judge (ALJ). Evidence was received at both pre-hearings. HACH was represented by its counsel, Miles T. Bradshaw. The Commission was represented by its counsel, Yvonne M. Williams. The evidentiary record closed on April 8, 2004. The parties filed briefs on January 21, 2004, January 26, 2004, March 2, 2004, and May 10, 2004.

I. DISCUSSION

Background

The legal basis of the Commission's motion is 28 Tex. Admin. Code §148.3, which provides:

§148.3. Requesting a Hearing

  1. (1)The person requesting a hearing must file a written request with the Chief Clerk of Proceedings, Hearings Division of the commission not later than 20 days after receipt of official notice of adverse action from the commission, receipt of the decision from the medical review division on a review of medical service or a medical fee under the Act, §413.031, or receipt of a notice of the intent of the commission to determine the legal rights, duties, or privileges of a party within the scope of §148.1 of this title (relating to Scope and Applicability).
  2. (1)The commission shall deliver the request for a hearing to SOAH within five working days of receipt.
  3. (3) If the notice of adverse action is a notice of alleged violation, the person
  4. charged must file an answer not later than the 20th day after the date of receipt of the notice. The answer must either consent to the proposed sanction, and remit the amount of the penalty, if any, or request a hearing.
  5. (4) Notwithstanding the provisions of subsection (a) of this section, the commission may request a hearing as permitted by the Act and the implementing rules of the Act, including, but not limited to the Act,
    1. (1) § 407.046(b) and § 411.0415(c).

The factual basis of the Commission's motion is as follows:

  1. In a letter dated October 4, 2002, the Commission notified HACH that it had been designated as a hazardous employer.[1]
  2. The October 4 letter informed HACH that it could request an administrative review of the Commission's decision, the request must be submitted in writing within 10 days of HACH's receipt of the letter, and the request should include documentation to show that its records indicate different facts than the ones used for the hazardous-employer identification.[2]
  3. The October 4 letter informed HACH that it could request an appeal. It said if HACH appealed, its request must be filed with the Commission not later than 20 days after its receipt of the results of the administrative review or, if it did not request an administrative review, not later than 20 days after receipt of the October 4 letter.[3]
  4. HACH received the October 4 letter on October 8, 2002.[4]
  5. HACH did not request an administrative review within 10 days of its receipt of the October 4 letter.[5]
  6. HACH did not appeal until submitting a letter dated November 5, 2004.[6]

Based on HACH's receipt of the October 4 letter on October 8, the Commission asserted that §148.3(a) required HACH to file an appeal by October 28, seven days before November 5, 2002.

The Commission cited the decision in SOAH Docket No. 453-01-3180.M5 (November 20, 2001, ALJ Rusch) for authority that the time limitation in § 148.3(a) is considered jurisdictional.

  1. Discussion and Analysis of HACH's Contentions
  2. Whether the Commission Waived its Right to Challenge Jurisdiction By Not Meeting the Five-day Deadline
  3. Party Contentions

HACH pointed out that the Commission failed to comply with § 148.3(b) by delivering HACH's request for hearing within five working days of receipt.[7] HACH asserted this failure caused the Commission to waive its right to challenge jurisdiction. Because the jurisdictional issue can only be decided by SOAH after the Commission files a request for hearing with SOAH, HACH argued that both timelines (the 20-day deadline for appealing and the Commission’s five-day deadline for delivering an appeal to SOAH) are relevant in determining SOAH's jurisdiction. It contended that by failing to meet the five-day deadline, the Commission “waived its right to challenge jurisdiction” and, in addition, lost authority to designate HACH as a hazardous employer.

HACH argued that the word “shall” in §148.3(b) should be construed as mandatory, in accordance with its ordinary meaning. In support of its argument that the five-day deadline is jurisdictional, it cited Balios v. Texas Department of Public Safety, 733 S.W. 2d 308, 310 (Tex. App.-- Amarillo 1987, writ ref'd.), which held that a failure by the Texas Department of Public Safety (DPS) to ask for a court hearing within a 10-day statutory deadline after receiving a hearing request precluded suspension of a person's driver's license for failure to submit to an intoxilyser test. The court cited public policy reasons for having a quick resolution of driving-while-intoxicated cases. HACH stated reasons for having a quick resolution in hazardous-employer-designation cases.

In response to HACH, the Commission maintained its late delivery of HACH's appeal was irrelevant because the late filing of the appeal had already deprived SOAH of jurisdiction. It also cited a number of cases saying the word “shall” in §148.3(b) is directory rather than mandatory, and thus, the Commission's failure to timely deliver the appeal was not jurisdictional.

b. Analysis

The ALJ concludes that HACH's failure to meet the deadline for requesting a hearing resulted in a loss of jurisdiction by SOAH over this case, after October 28, 2002 (by which time an appeal had not been filed), regardless of what happened after that date. The only authority SOAH had over the case after October 28 was to determine its own jurisdiction.[8] This conclusion is supported by rulings saying late-filed appeals deprive appellate tribunals of jurisdiction. As indicated above, SOAH has concluded that it loses jurisdiction when an appeal is not filed in 20 days. The following are other rulings stating this principle:

  1. In Glidden Company v. Aetna Casualty and Surety Company, 291 S.W.2d 315, 318 (Tex. 1956), the court determined the appellate court lost jurisdiction to hear an appeal when the appellant did not file an appeal bond by a 30-day deadline even though the appellant was prevented from doing so by the close of the clerk's office earlier than usual on the 30th day. The court said that compliance with the rule could not be waived or excused. The courts in In re Estate of Figueroa-Gomez, 76 S.W. 3d 533, 535 (Tex. App.BCorpus Christi 2002, no writ) and Gonzales v. Doctors Hospital - East Loop, 814 S.W. 2d 536, 537 (Tex. App.BHouston /1st/ 1981, mandamus motion overruled) also ruled that courts do not have authority to entertain an appeal that is not timely perfected.
  2. In Texas Alcoholic Beverage Commission v. Sfair, 786 S.W. 2d 26, 27-28 (Tex. Civ. App.BSan Antonio 1990, writ den.), the court held that district courts did not have jurisdiction to hear a licensee's appeal of a Texas Alcoholic Beverage Commission (Commission) order that was not filed within 30 days of the Commission's overruling the appellant's motion for rehearing. The court acknowledged that the appellant was “undoubtedly” prevented from filing a timely appeal by its reliance on the Commission's actions in sua sponte granting the rehearing (after it overruled it) and setting a new trial date, but said the statutory requirement of an appeal within 30 days of overruling of the motion for rehearing was “mandatory and jurisdictional.”

These cases show the issue is not whether the Commission “waived its right to challenge jurisdiction,” as argued by HACH, but whether SOAH losses authority to consider the case at all (except to rule on its own jurisdiction) after an untimely appeal. The cases show the absence of jurisdiction cannot be waived and that an opposing party's actions or omissions cannot revive jurisdiction. In each cited case, the failure to timely appeal effectively ended the appellate tribunal's authority over the case.

Whether the Commission Extended the Appeal Deadline by Requesting a Hearing

HACH argued that the Commission extended the deadline for appealing because its notice of hearing letter dated December 8, 2003,[9] effectively granted a hearing.HACH cited §148.3(d) as permitting the Commission itself to request a hearing at any time. HACH also argued that the Commission's act of forwarding the appeal to SOAH precluded the Commission from subsequently challenging its timeliness.

Arguing that it did not request a hearing under § 148.3(d), the Commission maintained that it simply forwarded HACH's appeal to SOAH as required by § 148.3(b). It cited certain “extraordinary” circumstances in which the Commission might request a hearing under §148.3(d).

HACH's argument was not persuasive. The SOAH “Request to Docket Case” form[10] shows the matter the Commission referred to SOAH was HACH's appeal. The Commission's December 8, 2003, letter is a hearing notice stating the date, time, subject, and applicable legal citations for the hearing on HACH's appeal. Neither document was a separate hearing request by the Commission.[11]

  1. Whether the Appeal Deadline was Tolled While the Parties Attempted to Resolve the Matter Administratively and Whether the Commission Misled HACH Into Believing the 20-Day Appeal Deadline Would Be Tolled During Its Attempts to Resolve the Matter
  2. Party Contentions

HACH cited Commission Rule 164.2(b)(5), which says an employer has a right to contest hazardous employer status by requesting a hearing “within 20 days of notification of identification or a failure to resolve the matter administratively.” (Emphasis added.) HACH maintained it was trying to resolve the matter administratively virtually up to the day it appealed by communicating with Commission representatives and contacting the Texas Workforce Commission (TWC) to try to change its SIC code. In support of this assertion, HACH cited a sentence in the Commission's October 4 notice of hazardous employer designation that said, “As we informed you via voicemail, to change your SIC Code, you must contact TWC and furnish us with their decision.” HACH maintained the October 4 letter and telephone conversations it had with the Commission misled it into believing the 20-day deadline would not begin until it furnished the Commission with a response from TWC. It said the Commission's direction to contact TWC was a clear attempt to resolve the matter administratively.

The Commission contended that HACH's assertions are untenable. It cited language in the October 4 letter at Part B.1,[12] which says a request for administrative review “must be submitted within 10 days of your receipt of this letter, be in writing, and should include documentation to show that your records indicate different facts than those used in the identification.” (Emphasis in original.) It pointed to the first page of the October 4 letter, which informed HACH that it had been identified as a hazardous employer. It maintained the October 4 letter clearly showed there was no ongoing administrative review and gave HACH an opportunity to file either of two responses: a request for an administrative review within 10 days or request for a hearing within 20 days. HACH did neither. It contended it followed all of the requirements in Rule 164.2 in giving notice of the hazardous employer designation.

The Commission cited testimony from HACH Director of Human Resources ___, saying she had been through the hazardous-employer-designation process before[13] and that she did not read all

of the October 4 letter.[14] The Commission maintained this testimony showed that any assertion that the process was misleading is untenable.

Analysis

The ALJ finds HACH's assertions unpersuasive. As argued by the Commission, the October 4 letter clearly said HACH could request an administrative review within 10 days or appeal within 20 days. The evidence shows it did neither. Evidence produced at the April 8, 2004, hearing failed to show that the Commission misled HACH into believing the administrative process was ongoing or that the appeal deadline had been postponed or waived.

II.FINDINGS OF FACT

  1. In a letter dated October 4, 2002, the Texas Workers' Compensation Commission (Commission) notified the Housing Authority of the City of Houston (HACH) that it had been designated as a hazardous employer.
  2. The October 4 letter informed HACH that it could request an administrative review of the Commission's decision, that the request for an administrative review must be submitted in writing within 10 days of HACH's receipt of the letter, and that the request should include documentation to show that its records indicate different facts than the ones used for the hazardous-employer identification.
  3. The October 4 letter informed HACH that it could request an appeal. It said if HACH appealed, its request must be filed with the Commission not later than 20 days after its receipt of the results of the administrative review or, if it did not request an administrative review, not later than 20 days after receipt of the October 4 letter.
  4. HACH received the October 4 letter on October 8, 2002.
  5. HACH did not request an administrative review within 10 days of its receipt of the October 4 letter.
  6. HACH did not appeal until submitting a letter dated November 5, 2004.
  7. The Commission did not request a hearing in this matter.
  8. The Commission did not mislead HACH into believing the administrative process was ongoing or that the appeal deadline was postponed or waived.

III. CONCLUSIONS OF LAW

  1. The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann.§413.031(k) and Tex. Gov't Code Ann.ch. 2003.
  2. SOAH has jurisdiction to determine whether it has jurisdiction. However, once it determines it has no jurisdiction, SOAH must declare it lacks jurisdiction and dismiss. It cannot consider other matters in a jurisdictional vacuum. Lipshy Motorcars, Inc. v. Sovereign Associates, Inc., 944 S.W. 2d 68, 71-72 (Tex. App.BDallas 1997, mandamus motion overruled).
  3. SOAH lacks jurisdiction to consider the December 4, 2002, request by HACH for a hearing concerning the Commission's designation of it as a hazardous employer.
  4. The request by HACH for a hearing concerning the Commission's designation of it as a hazardous employer should be dismissed.

ORDER

IT IS THEREFORE ORDERED that the request by the Housing Authority of the City of Houston for a hearing concerning the Texas Workers' Compensation Commission's designation of it as a hazardous employer be, and the same is hereby, dismissed.

Signed May 26, 2004.

JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 1 Ex. 2.
  2. 2 Ex. 2 at 3-4.
  3. 3 Ex. 2 at 4.
  4. 3 Ex. 12.
  5. 5 HACH acknowledged in its November 4, 2002, appeal letter that it did not ask for an administrative review. Commission hazardous-employer-program director Robert Giacomazza testified that the Commission never got an administrative review request in writing from HACH. Tr. at 34.
  6. 6 Ex. 3.
  7. 7 HACH maintained the Commission did not deliver HACH’s appeal to SOAH until December 8, 2003, more than a year after the request. However, SOAH’s date stamp showed receipt of the request on December 4, 2003. Ex. 4. In either case, the Commission exceeded the five-day deadline by more than a year.
  8. 8 Courts always have jurisdiction to determine whether they have jurisdiction. Once a court determines it has no jurisdiction, all it can do is declare its lack of jurisdiction and dismiss. It cannot consider other matters in a “jurisdictional vacuum.” Lipshy Motorcars, Inc. v. Sovereign Associates, Inc., 944 S.W. 2d 68, 71-72 (Tex. App.-Dallas 1997, mandamus motion overruled).
  9. 8 Ex. 1.
  10. 10 Ex. 4.
  11. 11 HACH also cited the fact that §148.3(a) says the recipient of the request for hearing is the chief clerk of proceedings and there is no evidence of when the chief clerk received the request for hearing. The ALJ does not find this assertion persuasive because HACH’s appeal date of November 5, 2002, shows it was late regardless of when the chief clerk of proceedings received it.
  12. 12 Ex. 2 at 3-4.
  13. 13 April 8, 2004, Transcript (Tr.) at 85-86.
  14. 14 Tr. at 90.
End of Document
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