Jerry Keeter and Keeter Aerial Spraying, Inc. v. Texas Department of Agriculture--Appeal from 53rd District Court of Travis County

KEETER-final IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-074-CV
JERRY KEETER AND KEETER AERIAL SPRAYING, INC.,

APPELLANTS

 
vs.
TEXAS DEPARTMENT OF AGRICULTURE,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 91-10321, HONORABLE JON WISSER, JUDGE PRESIDING

Jerry Keeter and Keeter Aerial Spraying, Inc. (collectively "Keeter") unsuccessfully sought to enjoin enforcement of a final order of the Texas Department of Agriculture ("the Department") revoking Keeter's commercial pesticide applicator's license. We will affirm the judgment of the trial court.

 
BACKGROUND

This dispute originated as an administrative enforcement action by the Department for violations of the Texas Agriculture Code and the regulations promulgated thereunder. See Tex. Agric. Code Ann. 76.116(a)(1) (West 1982); 4 Tex. Admin. Code 7.22(a) (1991). The Department found that Keeter had made pesticide applications in a manner inconsistent with the labeling of the pesticide and revoked Keeter's commercial applicator's license. Keeter filed a motion for rehearing with the Department, but did not timely file suit for judicial review in the district court under section 19 of the Administrative Procedure and Texas Register Act ("APTRA"). (1) Instead, Keeter brought an action in the district court seeking injunctive and declaratory relief pursuant to section 12 of APTRA. (2) Keeter sought an injunction of the revocation of his license and a declaration that the Department's enforcement actions were beyond its statutory authority and, therefore, void. Keeter argued that the Department failed to publish a penalty schedule in the Texas Register and because publication of the schedule was a prerequisite to any enforcement action by the Department, the order of revocation was void. See Tex. Agric. Code Ann. 76.1555 (West Supp. 1992). The district court denied the requested injunctive relief and declared that the revocation order was valid. Keeter appeals from the judgment of the district court.

 
DISCUSSION AND HOLDING

As a preliminary matter, we consider whether Keeter could properly bring the underlying action under section 12 of APTRA. As noted, after the Department issued its final order, Keeter filed a motion for rehearing but did not meet its deadline for review under section 19 of APTRA and instead sought declaratory and injunctive relief under section 12.

The Department argues that Keeter failed to exhaust his administrative remedies and that this cause is an impermissible collateral attack on the agency order. Keeter contends that section 12 actions do not require an exhaustion of administrative remedies and that the Department order is a void judgment, which may be attacked collaterally.

A person seeking judicial review pursuant to section 19 of APTRA must have "exhausted all administrative remedies." Tex. Rev. Civ. Stat. Ann. art. 6252-13a, 19(a) (West Supp. 1992). However, section 12 contains no similar requirement. Relief under section 12 is available "whether the plaintiff has requested the agency pass on the validity or application of the rule in question," but may not "be used to delay or stay a hearing after notice of hearing has been given if a suspension, revocation, or cancellation of a license . . . is at issue before the agency." Tex. Rev. Civ. Stat. Ann. art. 6252-13a, 12 (West Supp. 1992). This provision suggests that other types of agency action may be stayed by a section 12 action before a final order or an exhaustion of remedies. We conclude that a section 12 action may be maintained without first exhausting administrative remedies. See City of Sherman v. Public Util. Comm'n, 643 S.W.2d 681, 683 (Tex. 1983); Texas Dep't of Human Servs. v. ARA Living Ctrs. of Tex., Inc., 833 S.W.2d 689, 692 (Tex. App.--Austin 1992, writ requested); Southwestern Bell Telephone Co. v. Public Util. Comm'n, 735 S.W.2d 663, 669-70 n.3 (Tex. App.--Austin 1987, no writ).

The validity of a section 12 suit attacking a final order in a contested case is an area of debate between the commentators. See Brian D. Shannon, Declaratory Judgments Under Texas Administrative Procedure and Texas Register Act: An Under-Utilized Weapon, 41 Baylor L. Rev. 600, 625 (1989); Steven Baron, Judicial Review of Administrative Agency Rules: A Question of Timing, 43 Baylor L. Rev. 139, 165-66 (1991). However, we need not resolve this debate to dispose of this appeal.

In his first point of error, Keeter argues the district court erred in finding the Department's revocation order was valid because the Department failed to satisfy a prerequisite to its enforcement authority--the publication of a penalty schedule for violations of chapters 75 and 76 of the Agriculture Code. Keeter relies upon section 76.1555(a) and (b) to support its contention. Tex. Agric. Code Ann. 76.1555(a), (b) (West Supp. 1992). This section was added by amendment effective September 1, 1989. Keeter argues that because the Department did not publish a schedule and penalties required by this section until November 20, 1990, it could not revoke his license for violations occurring in June of 1990.

The Department replies that the publication requirements relied upon by Keeter do not apply to license revocations. We agree. Section 76.1555 and related provisions granted a new enforcement mechanism to the Department--the authority to impose administrative fines. Before these amendments, the Department's enforcement authority included the suspension, modification, or revocation of licenses under section 76.116 of the Agriculture Code. Tex. Agric. Code Ann. 76.116 (West 1982). Keeter's argument requires the conclusion that between the effective date of section 76.1555, September 1, 1989, and the publication of the schedule by the Department on November 20, 1990, the Department had no enforcement authority, whether by administrative fine or by any of the preexisting mechanisms. We disagree.

The schedule that was required by section 76.1555 was a schedule of administrative fines. By its terms, section 76.1555 required only that the Department "establish a schedule stating the types of violations possible under Chapters 75 and 76 of this code and the maximum fine applicable to each type of violation." Tex. Agric. Code Ann. 76.1555(b) (West Supp. 1992) (emphasis added). A "fine" is defined as "[a] pecuniary punishment or penalty . . . ." Black's Law Dictionary 632 (6th ed. 1991). The fact that the Department subsequently went further than section 76.1555 required in publishing a comprehensive penalty matrix, that included license suspensions and revocations in addition to administrative fines, does not compel the conclusion Keeter suggests. The Department had the authority to revoke Keeter's license pursuant to section 76.116 even if it had not complied with section 76.1555(b) at the time of the violations. Accordingly, we overrule Keeter's first point of error.

In his second point of error, Keeter contends that the revocation order was invalid because of the Department's violation of APTRA. Keeter argues that the Department, in failing to publish the penalty schedule, violated section 4(b) of APTRA, which requires that agency rules, orders, and decisions be indexed and made available for public inspection before the agency action is valid or effective. Tex. Rev. Civ. Stat. Ann. art. 6252-13a, 4(b) (West Supp. 1992).

As we have stated above, the Department's order revoking Keeter's license was pursuant to enforcement authority that preexisted the 1989 amendments to the Agriculture Code. We have concluded that section 76.155 required only a schedule of administrative fines and did not affect the preexisting enforcement authority. Therefore, there was no violation of section 4(b) of APTRA. We overrule Keeter's second point of error.

 
CONCLUSION

Having overruled both of Keeter's points of error, we affirm the judgment of the district court.

 

Jimmy Carroll, Chief Justice

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed: December 23, 1992

[Publish]

1. 1 Tex. Rev. Civ. Stat. Ann. art. 6252-13a, 19 (West Supp. 1992).

2. 2 Tex. Rev. Civ. Stat. Ann. art. 6252-13a, 12 (West Supp. 1992).