concurring.
I agree with the result reached and, by and large, with the holdings in Justice Gammage’s opinion. I disagree, however, that the validity of the Commission’s agreed order is the controlling issue. Rather, I believe the central issue is the right of the Commission to grant a rehearing, and the reviewability of that action. Within the appropriate time for such action, the decision to grant a rehearing is committed to the sound discretion of the Commission. See Texas State Bd. of Dental Examiners v. Silagi, 766 S.W.2d 280, 285 (Tex.App.1989, writ denied); cf. City of San Antonio v. Texas Dep’t of Health, 738 S.W.2d 52 (Tex.App.1987, writ denied). The exercise of that right, much like the granting of a new trial by a district court, should be reversible only on a showing of a manifest abuse of discretion. See Allied Rent-All, Inc. v. International Rental Ins., 764 S.W.2d 11, 13 (Tex.App.1988, no writ). No such showing was made in the present case.
The exception to the doctrine of exhaustion of administrative remedies on which Silver Eagle relied in the district court was that the Commission, by granting a rehearing, was exceeding its statutory authority and therefore acting without jurisdiction. The basis for my disagreement with this exceeding-statutory-authority argument is concisely stated in the brief of Tebbs/Coors: “A settlement agreement entered into by an administrative agency is no more immune from reconsideration pursuant to a timely motion [or, I would add, on the agency’s own initiative] than is any other administrative order.” Moreover, the authority to conduct such timely reconsideration cannot logically depend on the invalidity of the action being reconsidered. Accordingly, the validity of the Commission’s agreed order is immaterial to the outcome of this appeal, and I take no position on that question. I concur, however, that Silver Eagle was not excused from exhausting its administrative remedies, and therefore the trial court acquired no jurisdiction.