Kelvin E. Louis v. Office of Texas Attorney General Crime Victims' Services Division ( 2011 )

Opinion filed October 6, 2011
In The
Eleventh Court of Appeals
__________
No. 11-09-00315-CV
__________
KELVIN E. LOUIS, Appellant
V.
OFFICE OF TEXAS ATTORNEY GENERAL CRIME
VICTIMS’ SERVICES DIVISION, Appellee
On Appeal from the 39th District Court
Stonewall County, Texas
Trial Court Cause No. 4486
OPINION
The trial court found that Kelvin E. Louis’s petition for judicial review of the attorney
general’s decision to deny his claim as a crime victim was not timely filed. It therefore granted
the attorney general’s plea to the jurisdiction. We affirm.
After a known assailant shot him in the stomach with a shotgun, Louis filed a claim for
compensation as a crime victim pursuant to TEX. CODE CRIM. PROC. ANN. ch. 56, subch. B
(Vernon 2006 & Supp. 2010).
After a hearing, the attorney general denied Louis’s claim, and on November 24, 2008, it
issued its final decision. On December 22, 2008, Louis filed a “notice of dissatisfaction” as
provided for in Article 56.48(a). On December 29, 2008, Louis filed an amended “notice of
dissatisfaction.” On February 5, 2009, Louis filed his lawsuit seeking judicial review of the
hearing officer’s decision; he filed an amended petition for judicial review on April 15, 2009.
The attorney general filed a plea to the jurisdiction in which it alleged that Louis filed his
lawsuit forty-five days after he filed his first notice of dissatisfaction and that, under the
applicable statute, that was too late. Therefore, it argued that the trial court did not have
jurisdiction. The trial court agreed with the attorney general, granted the plea to the jurisdiction,
and dismissed Louis’s lawsuit.
In his appeal from that dismissal, Louis presents us with two issues. First, he argues that
we should not consider an affidavit that the attorney general offered in support of its plea to the
jurisdiction because it is conclusory. In his second issue, Louis maintains that the time limit for
filing a suit for judicial review under Article 56.48(a) should be computed from the time that he
filed his amended notice of dissatisfaction, not from the date that he filed his first one. Because
we believe that Louis’s second issue is dispositive of this appeal, we will discuss it first.
When the attorney general filed its plea to the jurisdiction, it challenged the trial court’s
subject-matter jurisdiction. Without subject-matter jurisdiction, a court has no authority to hear
and determine a case. Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
The burden is upon a plaintiff to allege facts that affirmatively establish the trial court’s subject-
matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
We review subject-matter jurisdiction issues de novo because they are questions of law. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Tarrant County v.
McQuary, 310 S.W.3d 170, 172 (Tex. App.—Fort Worth 2010, pet. denied).
If the attorney general denies a crime victim’s compensation claim, the claimant may
obtain judicial review of that decision. Article 56.48(a) provides in relevant part:
Not later than the 40th day after the attorney general renders a final
decision, a claimant or victim may file with the attorney general a notice of
dissatisfaction with the decision. Not later than the 40th day after the claimant or
victim gives notice, the claimant or victim shall bring suit in the district court
having jurisdiction.
The Texas Administrative Code contains similar language pertaining to these claims:
Not later than the 40th day after the victim or claimant gives the OAG
notice of dissatisfaction with the OAG’s final decision from the hearing, the
victim or claimant has a right to bring suit in a district court having jurisdiction
over the matter.
1 TEX. ADMIN. CODE § 61.904(b) (Office of the Att’y Gen., Crime Victims’ Compensation).
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The attorney general’s position is that the 40-day period within which the claimant is to
file his lawsuit starts to run when he files his first notice of dissatisfaction. Louis, on the other
hand, claims that a claimant may amend his notice of dissatisfaction as many times as he likes so
long as he files the amended notices within forty days after the attorney general enters a final
decision. Louis maintains that the 40-day period within which a claimant is to file his lawsuit
does not begin to run until the claimant files his last amended notice of dissatisfaction. If the
attorney general is correct, then Louis filed his petition for judicial review late. If Louis is
correct, then he timely filed his lawsuit for judicial review, and the trial court erred when it
granted the attorney general’s plea to the jurisdiction.
When we construe a statute, our primary goal is to ascertain and give effect to the intent
of the legislature. City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). Issues of
statutory construction begin with an analysis of the statute. Cail v. Service Motors, Inc., 660
S.W.2d 814, 815 (Tex. 1983). If the statute is clear and unambiguous, it is inappropriate to
employ extrinsic aids and rules of statutory construction. Ex parte Roloff, 510 S.W.2d 913, 915
(Tex. 1974). We are to give the statute its common, everyday meaning. Cail, 660 S.W.2d at 815
(citing Banks v. Chicago Grain Trimmers Assoc., 390 U.S. 459, 465 (1968)). We also are to
construe the statute based upon what it contains, not upon what it might have contained or upon
what we would have had it to contain. See City of San Antonio v. Hartman, 201 S.W.3d 667,
673 (Tex. 2006) (court must construe a statute based upon what it says “not according to what
we think it should have said”).
Louis argues that, by its use of the words “a notice of dissatisfaction,” the legislature did
not mean that a claimant may file only one notice of dissatisfaction. We agree with Louis that
Article 56.48(a) does not expressly prohibit the filing of multiple notices of dissatisfaction.
However, the statute, by its plain language, does require that a claimant file his lawsuit for
judicial review not later than forty days after he has given his notice of dissatisfaction. A
claimant gives that notice when he originally files his notice of dissatisfaction. Had the
legislature intended to provide that the time within which to file a suit for judicial review was to
be computed from the date of any amended notice of dissatisfaction, it could easily have done
that. See, e.g., Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (had the
legislature intended to place a certain restriction in the Deceptive Trade Practices Act, it could
easily have done so by drafting that provision into the Act).
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Louis relies upon Mainolfi v. Liberty Mutual Insurance Co., 624 S.W.2d 746 (Tex.
App.— Houston [1st Dist.] 1981, no writ), for the proposition that an amended notice extends
the time for filing suit. That case is distinguishable. Mainolfi dealt with matters involving
claims under a now-repealed workers’ compensation statute. Under that law, a claimant was
required to file a lawsuit to set aside a decision of the Industrial Accident Board within twenty
days after giving notice that he would not abide by a decision made by the Board. The claimant
in Mainolfi filed his lawsuit late. The court in Mainolfi referred to the appellee’s brief in that
case and, in dicta, agreed with assertions in the brief that there were several things that Mainolfi
could have done so that he would not have been late with his lawsuit, including filing a second
“notice of nonabidance.” Mainolfi, 624 S.W.2d at 749. For the reasons behind our decision in
this case, we decline to follow the dicta in that case.
We hold that, when a claimant files his initial notice of dissatisfaction, he has given
notice under the statute; the 40-day period within which he must file suit begins to run at that
time. Here, that would have been December 22, 2008. Louis filed his lawsuit for judicial review
on February 5, 2009. Because that is a date more than forty days after Louis had given the
attorney general his initial notice that he was dissatisfied with the decision, he did not timely file
his lawsuit for judicial review. The trial court did not err when it granted the attorney general’s
plea to the jurisdiction; it correctly dismissed Louis’s lawsuit. Louis’s second issue on appeal is
overruled. Because we have overruled Louis’s second issue on appeal, we do not need to
consider his first issue on appeal. See TEX. R. APP. P. 47.1.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
October 6, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1
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John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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