Lewie Byers v. David Dewhurst, Commissioner of General Land Office and Texaco Exploration & Production, Inc.--Appeal from 114th District Court of Smith County

MARY'S OPINION HEADING NOS. 12-02-00343-CV
12-02-00344-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

LEWIE BYERS,

 
APPEAL FROM THE 114TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

DAVID DEWHURST, COMMISSIONER OF

GENERAL LAND OFFICE AND TEXACO

EXPLORATION AND PRODUCTION, INC.,

APPELLEES

 
SMITH COUNTY, TEXASMEMORANDUM OPINION

These two cases deal with appeals to the 114th Judicial District Court of Smith County from two final determinations of "no vacancy" by the Land Commissioner (the "Commissioner") relating to the same vacancy claim brought by Appellant Lewie Byers ("Byers"). Byers' same vacancy claim was also the subject of another later appeal from a purported "rejection" of Byers' application for a vacancy. The trial court found it had no jurisdiction to consider the third appeal and dismissed the prior two cases as moot. We reversed (1) the trial court's order dismissing the third appeal and remanded the cause to the district court for a trial de novo of Byers' vacancy claim. Matters raised in the first two appeals, however, remain moot, and we affirm the trial court's orders of dismissal.

Byers filed three appeals related to one vacancy application filed with the General Land Office to purchase or lease vacant land in Smith County. The Land Office accepted the application on October 14, 1996, and required Byers to pay $30,000 as a deposit to cover the cost of a survey and other expenses. The agency appointed Jerry Goodson to make the survey.

On July 30, 1999, without hearing, the Commissioner entered a final order denying Byers' vacancy claim based on Goodson's survey that showed no vacancy existed. Byers filed suit in the district court of Smith County appealing the agency's determination and moved the court to remand the matter to the Commissioner for the consideration of more evidence. The trial court granted Byers' motion and remanded the matter of Byers' vacancy application to the Commissioner for further consideration. The appeal remained pending in the district court.

The Commissioner reconsidered the application in light of other evidence filed by Byers. The Commissioner signed a second final order also finding that no vacancy existed. Byers again appealed filing a new lawsuit under a different number. On March 22, 2000, the trial court granted Byers' motion for an administrative hearing and the presentation of additional evidence and remanded the cause to the agency for that purpose. The remand left the second appeal pending along with the first.

In May 2001, the law relating to vacancy applications was changed to provide, inter alia, that hearings under the pertinent subchapter were no longer to be contested case hearings, that the Administrative Procedure Act, Tex. Gov't Code Ann. ch. 2001 (Vernon 2000), would no longer govern vacancy application proceedings, and that on appeal, the district court shall conduct a de novo review of the Commissioner's final determination that a vacancy does or does not exist.

The Commissioner set the case for a contested case hearing on September 17, 2001, although effective September 1, 2001, hearings before the Commissioner were no longer to be contested case hearings. Byers objected, the hearing was abated, and on Byers' motion, the judge, on December 4, 2001, modified her order to specify that the application was remanded to the agency for "further processing" pursuant to the recent amendments to the Natural Resources Code.

Instead of proceeding with or without hearing to a final determination of Byers' vacancy application which it had accepted in 1996, the agency, without notice to Byers, considered the application to have been newly filed as of the date of the district court's December 4, 2001 order, and assigned the application a new file number. Four months later, on March 5, 2002, the agency notified Byers that his now newly-numbered application had been "rejected" and the matter closed.

Byers appealed the "rejection" in a third cause of action filed in the same district court where the two previous appeals filed under the old law but pertaining to the same vacancy claim remained unresolved. Byers contended that the purported "rejection" of his application was in fact a final determination by the Commissioner that no vacancy existed. The Commissioner and Texaco filed pleas to the jurisdiction alleging that a rejection is a notice of a defective application, rather than a denial on the merits, and therefore not appealable. The district court granted the pleas to the jurisdiction and dismissed the third cause of action. Byers appealed the dismissal to this court (No. 12-02-00207-CV). The trial court then dismissed as moot the two earlier cases involving Byers' application brought before the amendment of the statute. It is these two cases that are the subject of the instant appeal.

In our consideration of Byers' third appeal, we agreed with Byers that, despite the label given it, the purported rejection of his application was, by its character and function, a final determination that no vacancy existed. Byers, 2003 WL 21771789, at *6. We reversed the order of dismissal and remanded the cause to the district court for trial de novo. Id. Byers' third appeal, and our review thereof, was based on the pertinent statute as amended September 1, 2001. Byers received the relief requested, a trial de novo in the district court. The two earlier challenges that are the subject of the instant appeal were brought under the old statute and are moot.

The judgments of the trial court are affirmed.

 

BILL BASS

Justice

 

Opinion delivered February 27, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

 
(PUBLISH)

1. Byers v. Dewhurst, 12-02-00207-CV, 2003 WL 21771789, at *6 (Tex. App.-Tyler 2003, pet. denied).