Ellis H. Gilleland v. Guy A. Sheppard, Secretary of the Texas State Board of Veterinary Medical Examiners--Appeal from 250th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00452-CV
Ellis H. Gilleland, Appellant
v.
Guy A. Sheppard, Secretary of the Texas State Board of
Veterinary Medical Examiners, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 91-12246, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

 

Appellant Ellis H. Gilleland challenges an adverse judgment on his petition for writ of mandamus against appellee Guy A. Sheppard, in his capacity as Secretary of the Texas State Board of Veterinary Medical Examiners (Board). Gilleland seeks to compel Sheppard to initiate a contested case proceeding against two veterinarians, claiming that 22 Texas Administrative Code section 575.9 created a ministerial duty that Sheppard must perform.

Gilleland originally filed his petition for writ of mandamus on August 28, 1991. A hearing on the petition was held on October 24, 1991. Without reaching the merits, the trial court dismissed the petition with prejudice after it found that Gilleland had filed frivolous and groundless motions. This Court reversed the dismissal because we concluded that the dismissal did not meet the standards set by the Texas Supreme Court for death-penalty sanctions since the trial court had not first considered the imposition of lesser sanctions. Gilleland v. Sheppard, No. 03-92-00183-CV (Tex. App.--Austin Nov. 3, 1993, no writ) (not designated for publication); see TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991). On remand, Sheppard filed a "Suggestion of Mootness" which was heard on May 3, 1994. The trial court dismissed the mandamus action as moot because an amendment to section 575.9 clearly made the act Gilleland seeks to compel discretionary. We will affirm the trial court's judgment.

 

I. Hearing on the "Suggestion of Mootness"

In points of error one, three, and twenty-three, Gilleland complains that the trial court erred in conducting the May 3, 1994 hearing because the case was "under submission" to the Honorable Joseph Hart. Gilleland's complaint is that Judge Hart, the judge who heard the merits of the original case, should also have heard the "Suggestion of Mootness." Gilleland cites Texas Rules of Civil Procedure 1 and 301, Canon 3(B)(9) of the Code of Judicial Conduct, and the due process clauses of the U.S. and Texas constitutions as authority. See U.S. Const. amend. V, XIV; Tex. Const. art. I, 19. None of the authorities cited guarantee that a specific judge in Travis County will hear a motion filed in a pending case. The trial court specifically considered whether it was appropriate under the local rules (1) to hear the case and decided that it was. Gilleland does not present us with any authority that indicates the decision was an abuse of discretion. We overrule points of error one, three, and twenty-three.

Point of error two complains that the dismissal hearing did not comply with the mandate of this Court, which had reversed the earlier dismissal and remanded the case to the trial court. We held only that the trial court had erred because it had not considered lesser sanctions before striking Gilleland's motions and dismissing his case with prejudice. A general remand does not guarantee a hearing on the merits if one is not warranted. Stein v. Highland Park Indep. Sch. Dist., 574 S.W.2d 807, 808 (Tex. Civ. App.--Texarkana 1978, writ dism'd) (trial court had discretion to dismiss case remanded for trial when plaintiff did not comply with its subsequent order to replead). Point of error two is overruled.

 

II. Res Judicata

In point of error four, Gilleland complains that res judicata precluded the trial court's consideration of the mootness issue because this Court had already addressed the issue on a motion for rehearing. We disagree. Sheppard filed a motion for rehearing when we reversed the first dismissal in this case, protesting that he should not be assessed all costs of the appeal. The basis for his argument was two-fold: first, that Gilleland had filed unneeded portions of the record and had failed to file needed portions, and alternatively, that Gilleland should bear the costs of appeal since the case had become moot while on appeal. This Court simply overruled the motion; our ruling did not address the merits of the mootness argument. We overrule point of error four.

 

III. Findings of Fact

In points of error six through ten, Gilleland complains of various findings of fact on the basis that they are not properly findings of fact or that they misstate facts. His arguments are without merit. We overrule points of error six through ten.

 

IV. No Hearing on Motion

In point of error twenty, Gilleland complains that the trial court abused its discretion by not setting and hearing his "Objection to Kangaroo Court Order." He cites Texas Rule of Civil Procedure 1; Code of Judicial Conduct, Canons 3(A) and (B)(2),(5),(6),(8) and (9); and the due process clauses of the United States and Texas Constitution. See U.S. Const. amend. V, XIV; Tex. Const. art. I, 19. None of the authority cited is pertinent. The trial court's decision to hold a hearing on a motion for a new trial (2) is discretionary if the objection involves only legal issues. University of Tex. v. Morris, 352 S.W.2d 947, 949 (Tex. 1962)("Whether the court will hear the movant on his motion is a matter within the discretion of the trial court when it presents solely a question of law"). We overrule point of error twenty.

 

V. Description of Case

Point of error twenty-one, which takes issue with the statement in the judgment that Gilleland "demands the Veterinary Board docket a case against two veterinarians," is without merit. We overrule point of error twenty-one.

 

VI. Retroactive Application of an Amendment to section 575.9

In points of error five, eleven through nineteen, and twenty-two, Gilleland complains that the trial court erred by holding that 22 Texas Administrative Code section 575.9, as revised effective July 27, 1992, mooted his petition for writ of mandamus because he filed his complaint with the Board on March 26, 1990 and his petition for writ of mandamus on August 28, 1991. We disagree.

Analysis of the retroactivity of a regulation requires consideration of two issues: first, whether the agency intended that the regulation be retroactively applied, and second, whether retroactive application would violate constitutional provisions.

 

A. Whether the 1992 amendments to section 575.9 were intended to apply retroactively

 

We first consider whether the Board intended the 1992 amendments to section 575.9 to apply retroactively. Section 575.9 has been amended twice. After the second amendment, effective July 27, 1992, the section now reads:

 

Upon receipt of a complaint in which sufficient evidence exists to have a good cause to believe that violations of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, and/or rules of professional conduct [sic], (3) the board secretary shall cause the complaint to be docketed as a pending proceeding and shall cause notice to be served thereon by certified or registered mail.

 

22 Tex. Admin. Code 575.9 (West 1995).

Generally, courts presume that a regulation operates prospectively rather than retroactively. Ex Parte Abell, 613 S.W.2d 255, 258 (Tex. 1981). A regulation will not be applied retroactively unless it appears that the agency intended to apply it to both past and future transactions. Id. In this case, the agency expressed its intent regarding the 1992 amendments in the preamble to the proposed amendments:

 

The Texas Board of Veterinary Medical Examiners proposes an amendment to 575.9 concerning docketing and numbering of causes, and service in order to clarify the original intent of the rule. The rule as presently written could be misinterpreted to imply that the secretary dockets all complaints received for board action, when in fact the original intent was that the board secretary, rather than the executive director, dockets complaints for board action when the board secretary feels that action is warranted.

 

17 Tex. Reg. 2176 (March 24, 1992) (emphasis added).

Clearly, the agency saw the amendment of the regulation as a clarification of an existing rule rather than a change. The amendment of the rule may, as Gilleland protested below, be self-serving. However, absent constitutional prohibitions, the Board could have promulgated a new regulation and provided that it apply to all pending cases. See Texas Dep't of Health v. Long, 659 S.W.2d 158, 160 (Tex. App.--Austin 1986, no writ); see also Texas Water Comm'n v. Wright, 464 S.W.2d 642, 648-49 (Tex. 1971). Since the Board intends for the amendments to section 575.9 to apply to all pending cases, the presumption that the rule should be applied prospectively is rebutted. Further, the agency's intent prevails unless constitutional prohibitions prescribe retroactive application.

 

B. Whether retroactive application of section 575.9 would violate constitutional prohibitions

We now consider whether retroactive application of the amendments to section 575.9 would violate constitutional prohibitions. Article I, section 16 of the Texas Constitution prohibits laws that impair vested rights. (4) Gilleland claims that he had the vested right to require the Secretary to docket a case before the regulation was changed. We hold that Gilleland did not have a vested right to have the case docketed because (1) section 575.9, before the 1992 amendment, did not require the Secretary to docket every complaint received, and (2) even if section 575.9 had required the Secretary to docket every complaint, the docketing of the complaint is procedural and remedial and therefore did not create a vested right that precludes retroactive application of the subsequent rule change.

 

1. Whether section 575.9, before the 1992 amendment, created a mandatory duty to docket a case

 

After the first amendment, effective March 22, 1988, section 575.9 provided:

 

Upon receipt of a complaint or other pleading, which is intended to institute a contested proceeding before the board and complies with these sections as to form and content, the board secretary shall cause to be docketed the same as a pending proceeding and shall cause notice to be served thereon by personal service or registered mail.

 

12 Tex. Reg. 3815 (October 16, 1987) (proposed) (deletions omitted); 13 Tex. Reg. 1189 (March 8, 1988) (adopted).

This version, in effect when Gilleland filed his complaint, was ambiguous because it does not provide who must intend the complaint to institute a contested proceeding. However, the agency stated its interpretation in its comments when it adopted the amendments:

 

The amendment requires the board secretary, who is a DVM, to docket cases being brought before the board.

 

The amendment requires that a licensed practitioner (board secretary) determine which complaints will be brought before the board for disciplinary action and allows for service of such hearing to be made by registered mail.

 

13 Tex. Reg. 1189 (March 8, 1988) (emphasis added).

An agency's interpretation of its rules is entitled to deference by the courts. Public Util. Comm'n v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex. 1991); North Alamo Water Supply Corp. v. Texas Dep't of Health, 839 S.W.2d 448, 455 (Tex. App.--Austin 1992, writ denied). "Our review is limited to determining whether the administrative interpretation 'is plainly erroneous or inconsistent with the regulation.'" Gulf States Utils. Co., 809 S.W.2d at 207 (quoting United States v. Larionoff, 431 U.S. 864, 872 (1977)). In this case, the agency's interpretation comports with the statutes regulating the Board, which clearly anticipate that some complaints will be dismissed. See Tex. Rev. Civ. Stat. Ann. art. 8890, 18B(a)(3) (West Supp. 1995) (Board shall keep record of explanation of the legal basis and reason for a complaint that is dismissed). Also, the agency's interpretation comports with general ideas of administrative efficiency, which recognize that prosecutorial entities must exercise discretion in choosing which cases to pursue. See, e.g. Lewright v. Bell, 63 S.W.2d 623, 624 (Tex. 1901) (mandamus inappropriate because, in spite of mandatory language of statute, attorney general exercises discretion in deciding which cases to bring because he must find that there is reasonable ground to believe that statute has been violated and that evidence necessary to successful prosecution of suit can be procured). We conclude that the agency's interpretation that section 575.9 allowed the Secretary discretion in initiating contested case hearings is not plainly erroneous or inconsistent with the regulation.

 

2. Whether section 575.9 created a "vested right"

Further, even if the agency's interpretation of the 1988 version of section 575.9 is erroneous, the 1992 amendment applies retroactively unless the earlier version created a vested right in Gilleland to have his complaint docketed. Laws may not operate retroactively to eliminate or impair vested substantive rights acquired under existing laws, nor may they create new obligations, impose new duties, or adopt new disabilities in respect to past transactions or considerations. Abell, 613 S.W.2d at 260. A "vested right" must be more than a mere expectation that the present laws will continue; it must be an entitlement to the present or future enjoyment of a demand or a legal exemption from the demand made by another. Id. at 261. Further, no litigant has a vested right in statutes or rules which affect a remedy or are procedural in nature. Id.

Gilleland's claim that section 575.9 created a right to have his complaint brought before the board may best be analogized to a claim based on a statutory cause of action, although the "right" Gilleland claims is not as strong as the right to a cause of action since the state, not Gilleland, is the real party in interest in a disciplinary proceeding. See Tex. Rev. Civ. Stat. Ann. art. 8890(7)a and 8(a) (Board effectuates Veterinary Licensing Act and sets rules of professional conduct); 14B(a) (Board imposes administrative penalties). Generally, if a cause of action is based on a statute, the repeal or amendment of that statute is given immediate effect. Knight v. International Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex. 1982); Dickson v. Navarro County Levee Improvement Dist. No. 3, 139 S.W.2d 257, 259 (Tex. 1940); Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 285-86 (Tex. Civ. App.--Corpus Christi 1975, no writ). Since a cause of action expires upon amendment of the statute that created it, any right to have the case docketed expired upon amendment of the regulation that purportedly created such a right. (5)

Gilleland relies on Texas Department of Public Safety v. Seifcik, 751 S.W.2d 239 (Tex. App.--San Antonio 1988, no writ), to support his argument that the changes to section 575.9 cannot be applied retroactively. The statute at issue in Seifcik eliminated a trial judge's discretion to grant probation when the suspect in a driving while intoxicated case refused to take a breath test. The court held that retroactive application of the amended law would be unconstitutional because it would deprive the accused of substantial protection. Id. at 240. Seifcik is distinguishable because it involved the imposition of a new disability rather than the elimination of a vested right. Further, the underlying rationale was that it would be unfair for an accused to have chosen a particular course in reliance on existing law, only to have that law change. Id. (denying probation would impose new disability "unforeseen at the time he elected to refuse the breath test offered by the police"); see also Wright, 464 S.W.2d at 649 (changing position in reliance on law may create a vested right). Gilleland did not change his position in reliance on the prior regulation.

Gilleland's claim is a claim to a particular remedy. No person has a vested right to a particular remedy according to law. Aetna Ins., 528 S.W.2d at 284. Gilleland still had the right to file a complaint and to have the complaint investigated. He simply did not, as he expected to, have the entire Board hear his complaint. To the extent it existed, such a right was remedial and procedural and did not create a vested right.

 

3. Conclusion regarding constitutional prohibitions to retroactive application of section 575.9

We conclude that the docketing of a complaint is remedial and procedural rather than substantive. Therefore, even if the prior rule had required the Secretary to docket all complaints, that rule did not create a vested right that precludes application of the 1992 amendment.

 

C. Whether the Petition is Moot

Points of error seventeen and eighteen additionally challenge the trial court's conclusion that the petition for writ of mandamus is moot. A matter becomes moot when it does not rest on an existing right. State v. Gibson Products Co., Inc., 699 S.W.2d 640, 641 (Tex. App.--Waco 1985, no writ); James v. City of Round Rock, 630 S.W.2d 466, 467 (Tex. App.--Austin 1982, no writ). A case may become moot when new legislation or acts are passed which supersede existing legislation. Gibson, 699 S.W.2d at 641 (State's suit to enjoin violations of Blue Laws moot when Blue Laws repealed); Long, 659 S.W.2d at 161 (suit to enjoin department from violating its own rule moot when rule eliminated); James, 630 S.W.2d at 467-68 (suit challenging zoning ordinance moot when ordinance repealed). A matter becomes moot when the sought-for relief cannot be granted. James, 630 S.W.2d at 469.

Gilleland argues that his petition for writ of mandamus is not moot because either version of section 575.9 allows the remedy he seeks. The current version of section 575.9 certainly allows the Secretary to docket the cases he deems appropriate. However, a writ of mandamus will not issue to compel the performance of discretionary acts. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). Therefore, Gilleland has no right to a mandamus under the current rule.

Gilleland further argues that his cause is not moot because the changes to section 575.9 do not apply retroactively. We have already concluded that the amendments to section 575.9 do apply retroactively. Since the petition for writ of mandamus was based on the prior regulation, and the prior regulation does not determine the outcome, a valid controversy no longer exists. Accordingly, we hold that the petition for writ of mandamus is moot. We overrule points of error five, eleven through nineteen, and twenty-two.

 

VII. Conclusion

Finding no merit in the points of error, we affirm the trial court's judgment.

 

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: May 3, 1995

Do Not Publish

1. Travis County has a centralized docket system whereby any of the district judges in the county can hear and decide any case set for submission on the central docket.

2. The character of a motion is judged by its substance rather than by its form or caption. U.S. Fire Ins. Co. v. State, 843 S.W.2d 283, 284 (Tex. App.--Austin 1992, writ denied). Since Gilleland's "Objection to Kangaroo Court Order" complained of the judgment and asked that it be vacated, it is in effect a motion for a new trial.

3. It appears that the regulation should read "upon receipt of a complaint in which sufficient evidence exists to have a good cause to believe that violations of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, and/or rules of professional conduct have occurred. . . ." We read the words "have occurred" into the regulation since courts add words or phrases when necessary to effectuate the intent of the regulation. See Sweeny Hosp. Dist. v. Carr, 378 S.W.2d 40, 47 (Tex. 1964).

4. Article I, Section 16 provides:

No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

5. Other cases finding that changes in law could be retroactively applied even though they affected pending cases include Abell, 613 S.W.2d at 262 (promulgation of statute creating evidentiary privilege); Exxon Corp. v. Brecheen, 526 S.W.2d 519, 525 (Tex. 1975)(change in statute concerning admissible evidence); Regal Properties v. Donovitz, 479 S.W.2d 748, 751 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.)(change in jurisdiction of court in which litigation was pending).