Denied Rule Petitions In Texas Will Have No Day In Court

Law360, New York (July 31, 2014, 10:45 AM EDT) -- On July 23, 2014, the Austin Court of Appeals held that Texas trial courts lack subject-matter jurisdiction under the Texas Administrative Procedure Act to review orders by state agencies denying petitions for rulemaking. In Texas Commission on Environmental Quality v. Bonser-Lain, et al., No. 03-12-00555-CV (Tex. App. — Austin Jul. 23, 2014), the court of appeals addressed whether the APA waived the Texas Commission on Environmental Quality's ("TCEQ") immunity by permitting a district court to consider the appeal of TCEQ's denial of a petition for rulemaking. The court of appeals first considered whether TCEQ had standing to appeal, in light of the fact that TCEQ won on the merits at the district court, but its plea to the jurisdiction was denied. After noting concerns that collateral estoppel could preclude relitigation of the jurisdictional issue, the court of appeals determined that it had subject-matter jurisdiction to consider the appeal. The appellate court next considered whether the district court had jurisdiction to consider TCEQ's denial of the petition for rulemaking. Noting that the state and its agencies cannot be sued absent an express waiver under principles of sovereign immunity, the Austin Court of Appeals held that the district court did not have jurisdiction because the Texas Legislature's failure to include such an appeal in the APA, termed "deliberate silence," did not demonstrate its intent to allow judicial review of agency decisions denying petitions for rulemaking....

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