ADMINISTRATIVE LAW
SPRING
2020
SIGNIFICANT DECISION
Hyundai Motor America v. New World Car Nissan,
581 S.W.3d 831
(Tex. App—Austin 2019)
Agency Changes to SOAH Judge’s PFD
Pursuant to Section 2001.058(e): The Austin Court
of Appeals finally issued an opinion detailing the parameters of an agency’s
power to modify a PFD under the APA. Held: An agency must explain with
particularity its specific reason and legal basis for each change made. To meet
this requirement, the agency must articulate a rational connection between an
underlying agency policy and the altered finding of fact or conclusion of law.
Basic or Adjudicative Facts: When
an agency changes basic facts, they are reviewed under a stricter standard than
ultimate fact findings. Basic facts answer the questions of who, did what,
when, how, why with what motive or intent and are roughly the kind of facts
that go to a jury in a jury case. The resolution of adjudicative facts often
requires making credibility determinations which a SOAH Judge is better suited
to do than an agency or board reviewing the PFD. A SOAH Judge is a
“disinterested hearings officer” to whom the Legislature has delegated the
basic fact-finding. An agency cannot frustrate the delegation of the
fact-finding role by ignoring the SOAH Judge’s findings which is disagrees with
and substitute its own findings. Section 2001.058(e) does not provide for an
agency to find basic facts in addition to those found by the SOAH Judge. If
the agency substitutes findings of basic fact under this section, the agency
exceeds its authority by doing so.
Ultimate Fact Findings: These
are findings that usually do not concern the immediate parties but are general
facts that help the tribunal decide questions of law and policy and discretion.
Such a finding usually involves a conclusion of law or at least a determination
of a mixed question of law and fact. When reviewing an agency’s findings of
ultimate fact, a reviewing court is limited to the inquiry of whether the
agency’s findings of basic fact reasonably support its findings of ultimate
fact. The agency must identify which applicable law the SOAH Judge
misinterpreted or misapplied, WHY that interpretation or application was
incorrect or how the agency reached the opposite conclusion on the same basic
facts.
A HORRIBLY WRONG DECISION
Dyer v. T.C.E.Q,
W.L. 5090568;
Lexis 9023 (Tex. App.—Austin 2019, pet. filed)
Agency Changes to a SOAH Judge’s
PFD Pursuant to Section 2003.047(m)-(n): Justice
Goodwin in a 2-1 decision totally ignores the statutory authority governing the
TCEQ as to the judicial review of its changes to a PFD. The governing law
requires that the TCEQ give “an explanation” of its changes, Section
2003.047(m). However, the section goes on to provide that the TCEQ is subject
to the APA unless its provisions are contradictory, Section 2003.047(n).
Section 2001.058(e), that was just discussed in the Hyundai Motor decision
supro, requires that when a change is made to the
PFD, the agency must provide “a specific reason and legal basis,” Section
2001.058(e) (last sentence). Justice Goodwin refused to determine if these
two statutory provisions were in conflict or not and simply held “an
explanation” was the controlling factor and that did NOT require a detailed
explanation of a change as mandated under Section 2001.058(e) (last
sentence). The explanation merely had
to be “sufficient.”
Note: This holding is absolutely incorrect and butchers the accepted canons of
construction utilized by the Supreme Court when determining the applicability
of two different statutory provision to a legal issue. The decision also wholly
fails to apply the arbitrary and capricious standard of review of agency action
but adds a new standard of “sufficiency” which the Court did not define. This case is on petition to the Texas Supreme
Court and let us hope they accept it and reverse it.
ANOTHER HORRIBLE DECISION
GS Texas Ventures, LLC v. PUC of
Tex., W.L. 217179; Lexis 320 (Tex. App.—Austin 2020)
Agency Changes to SOAH Judge’s PFD
Pursuant to Section 2003.049(g)-(h): Chief Justice
Rose held: “We have not found authority for the proposition that the
Commission must provide line-by-line explanations in changing or deleting an
ALJ’s findings.” That holding is absolutely wrong.
This Court is bound by its own precedent as set forth in the Hyundai decision,
supra. Very recently, the Texas Supreme Court held that when words and
phrases are set forth in one statute and then used again in another, if it is
in the same context, the words will be understood in the same sense, Colorado
County v. Staff, 510 S.W.3d 435, 452 (Tex. 2017). Both Sections 2001.058(e)
(last sentence) and 2003.049(h) require that when an agency modifies the PFD,
it must set forth “the specific reason and legal basis “ for
the change or determination. Both are specifically dealing with PFD changes so they are utilized in the exact same context with
the exact same standard. There is no question that the PUC must specifically
justify each and every change of the PFD pursuant to Hyundai,
supra.
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