TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00403-CV
Donald Little, Appellant
v.
Texas Board of Law Examiners, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-10-000014, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
OPINION
Donald Little, appearing pro se, appeals from the trial court’s order granting a plea
to the jurisdiction filed by appellee Texas Board of Law Examiners (TBLE). Little argues that the
trial court erred in granting the plea to the jurisdiction based on his failure to file suit for judicial
review of a TBLE decision within the time required by the Rules Governing Admission to the Bar
of Texas. See Tex. R. Govern. Bar Adm’n XV(k)(1) (suits for review of TBLE decisions must be
filed within 60 days after written decision is mailed to applicant).1 We affirm the trial court’s order.
BACKGROUND
Little, an attorney licensed to practice in Utah and Louisiana, applied for admission
to the practice of law in Texas. On December 5, 2008, the TBLE held a hearing on the issue of
1
The Rules Governing Admission to the Bar of Texas are promulgated by the Texas
Supreme Court as authorized by statute. See Tex. Gov’t Code Ann. § 82.022 (West 2005).
whether Little possessed the good moral character required for admission. Based on concerns
regarding Little’s issues with the Internal Revenue Service and his failure to sufficiently disclose that
information in his application for admission, TBLE issued a decision concluding that Little lacked
the requisite moral character for admission to the Bar. The written decision included a list of
curative measures that would assist Little in becoming qualified to practice law in Texas, but stated
that Little could not petition for redetermination before December 5, 2010. The decision was signed
on January 23, 2009.
Rule XV(k)(1) of the Rules Governing Admission to the Bar of Texas provides that
an applicant may seek judicial review of a TBLE decision by “institut[ing], in the district courts of
Travis County, Texas proceedings for review of such decision within sixty (60) days after the date
the written decision is mailed to the Applicant.” Id. On March 16, 2009, within the 60-day period
for seeking judicial review, Little filed a document titled “notice of administrative appeal” in the
county court at law of Travis County.2 However, because Rule XV(k)(1) requires that suits for
judicial review of TBLE decisions be filed “in the district courts of Travis County,” TBLE filed a
plea to the jurisdiction, arguing that the county court lacked jurisdiction over Little’s suit. See id.
The county court agreed and issued an order granting the plea, but also included language ordering
that the case be transferred to Travis County district court. TBLE then filed a notice of interlocutory
appeal to this Court, arguing that because the county court lacked subject-matter jurisdiction over
2
The record does not reflect the date the decision was mailed to Little. However, because
Little filed his initial suit within 60 days of the date the decision was signed by TBLE, the exact date
of mailing is immaterial.
2
Little’s suit, it did not have authority to transfer the case to district court. See Texas Bd. of Law
Exam’rs v. Little, No. 03-09-00342-CV, 2009 Tex. App. LEXIS 9857, at *1 (Tex. App.—Austin
Dec. 31, 2009, no pet.) (mem. op.). After concluding that the county court lacked authority to
transfer the case, this Court vacated the portion of the order transferring the case and dismissed the
suit for want of jurisdiction. Id.
On January 4, 2010, Little filed the suit giving rise to this appeal in Travis County
district court. In the “notice of administrative appeal” filed in district court, Little represented that
his suit was timely under TBLE’s “Rule of Procedure for appealing an order within 60 days of
mailing . . . and the tolling period extended by appellate proceedings in the Third District Court of
Appeals.” TBLE then filed a plea to the jurisdiction on the grounds that Little had failed to comply
with the 60-day deadline imposed by Rule XV(k)(1), a statutory prerequisite to suit.3 The trial court
granted the plea to the jurisdiction and dismissed the suit with prejudice. This appeal followed.
STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of
subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). We review
a trial court’s ruling on a plea to the jurisdiction de novo. Westbrook v. Penley, 231 S.W.3d 389, 394
(Tex. 2007). Statutory prerequisites to suit are jurisdictional requirements in all suits against a
3
The Rules Governing Admission to the Bar have the same force and effect as statutes. See
Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 310 (Tex. 1976) (administrative rules
promulgated pursuant to statutory authority have force and effect of statutes); see also Tex. Gov’t
Code Ann. § 82.022 (statutory authority for supreme court to adopt rules governing bar admission
and licensing process).
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governmental entity. Tex. Gov’t Code Ann. § 311.034 (West Supp. 2010). Failure to comply with
a jurisdictional requirement deprives the trial court of the power to act, other than to determine that
it lacks jurisdiction. City of Desoto v. White, 288 S.W.3d 389, 393 (Tex. 2009).
DISCUSSION
In two issues on appeal, Little argues that the trial court erred in granting TBLE’s plea
to the jurisdiction because (1) rules of procedure should be liberally applied to preserve his right to
appeal TBLE’s decision and (2) the 60-day deadline for appealing a TBLE decision under Rule
XV(k)(1) was tolled by the filing of his first suit in county court.
In support of his first issue, Little relies on the supreme court’s policy of applying
“rules of procedure liberally to reach the merits of the appeal whenever possible.” Warwick Towers
Council of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) (per curiam).
According to Little, this policy should have precluded the trial court from “summarily dismiss[ing]”
his suit “for procedural mistakes.” The policy in question, however, refers to the rules of appellate
procedure applicable to perfecting an appeal from a trial court’s final or otherwise appealable order.
See id. (holding that appellant must be afforded opportunity to amend defective notice of appeal
where it made bona fide attempt to invoke appellate jurisdiction). Because the supreme court’s
policy of liberal construction has not been extended to bona fide attempts to seek judicial review of
an administrative agency decision, Little’s first issue is overruled.
Little’s second issue appears to be based on the tolling provision found in civil
practice and remedies code section 16.064, which provides that the “period between the date of filing
an action in a trial court and the date of a second filing of the same action in a different court
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suspends the running of the applicable statute of limitations for the period” if the first action is
dismissed for want of jurisdiction and the second action is commenced within 60 days of the date
that dismissal becomes final. Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (West 2008). While
Little does not cite section 16.064 in his brief on appeal, the tolling provision of section 16.064 is
presumably the basis for his contention that the trial court should have found that “the tolling of the
statute of limitations applied to governmental entities.” Little relied on section 16.064 in his
argument to the trial court during the hearing on TBLE’s plea to the jurisdiction, asserting that the
tolling provision applies to the 60-day deadline for appealing a TBLE decision under Rule XV(k)(1),
and therefore that his district court action, filed within 60 days of this Court’s opinion dismissing
his county court action, was timely filed.
TBLE argues, on the other hand, that section 16.064 does not apply to jurisdictional
statutory prerequisites to suits for judicial review of administrative decisions. We agree. This Court
has previously addressed the applicability of section 16.064 to suits for judicial review of
administrative decisions, ultimately concluding that the tolling provision of section 16.064 does not
apply to “a jurisdictional statutory prerequisite to . . . maintaining a suit for judicial review.” Heart
Hosp. IV, L.P. v. King, 116 S.W.3d 831, 835-36 (Tex. App.—Austin 2003, pet. denied). Noting that
a jurisdictional statutory prerequisite is “not a statute of limitations,” the Court went on to hold that
the “tolling provision of section 16.064 is not applicable when the legislature has made the choice
that review of a decision” by an administrative agency must be filed by a certain date. Id.
Little takes the position that the supreme court’s opinion in In re United Services
Automobile Ass’n (USAA) requires application of “the tolling of the statute of limitations” in this
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case. 307 S.W.3d 299 (Tex. 2010). In USAA, the supreme court held that the statutory filing
deadline imposed by the Texas Commission on Human Rights Act was not jurisdictional, and
therefore would not necessarily preclude application of section 16.064. Id. at 310. In reaching this
conclusion, however, the court reiterated the rule that statutory prerequisites to suits against
governmental entities are jurisdictional. Id. at 308 (“While the Legislature could make the Labor
Code filing deadlines jurisdictional, as it has in cases involving statutory requirements relating to
governmental entities . . . it has not done so here.” (citing Tex. Gov’t Code Ann. § 311.034)). The
60-day deadline imposed by Rule XV(k)(1), unlike the filing deadline at issue in USAA, is a statutory
prerequisite to suit against TBLE, a governmental entity, and is therefore jurisdictional.4 As a result,
we again hold that the tolling provision of 16.064 is inapplicable to a jurisdictional statutory
prerequisite to suit against a governmental entity. See Heart Hosp., 116 S.W.3d at 836. Little’s
second issue on appeal is overruled.
Little does not dispute that he failed to file suit within 60 days of the date the TBLE
decision was mailed to him. Because the 60-day deadline is jurisdictional and the tolling provision
found in section 16.064 of the civil practice and remedies code is inapplicable, Little’s failure to
comply deprived the trial court of subject-matter jurisdiction.
4
We addressed TBLE’s status as a governmental entity in our previous opinion dismissing
Little’s county court action for want of jurisdiction. See Texas Bd. of Law Exam’rs v. Little, No. 03-
09-00342-CV, 2009 Tex. App. LEXIS 9857, at *4 (Tex. App.—Austin Dec. 31, 2009, no pet.)
(mem. op.).
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CONCLUSION
We affirm the trial court’s order granting the plea to the jurisdiction.
__________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
Affirmed
Filed: March 9, 2011
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