Nueces County Bail Bond Board v. Warren Alkek D/B/A a & a Bail Bonds

                             NUMBER 13-04-00395-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

NUECES COUNTY BAIL BOND BOARD,                                        Appellant,

                                                             v.

WARREN ALKEK D/B/A A&A BAIL BONDS,                                   Appellee.

    On appeal from the 347th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

This is an appeal from the trial court=s order granting a bail bond license to appellee, Warren Alkek, d/b/a A&A Bail Bonds.  In eight points of error, appellant, the Nueces County Bail Bond Board, contends the trial court erred by (1) denying its plea to the jurisdiction, (2) granting appellee=s bail bond license renewal, and (3) not granting a directed verdict.^[1]  We reverse and render.

                                                             A.  Background

Appellee=s bail bond license was set to expire on November 21, 2003.  In September 2003, appellee submitted a license renewal application, which the Board conditionally granted at its regular monthly meeting on October 28, 2003.  However, at a specially called meeting held on January 6, 2004, the Board denied the license renewal.  Appellee sued the Board, Nueces County Attorney Laura Garza Jimenez, and Nueces County Sheriff Larry Olivarez for (1) injunctive relief, attorney=s fees and damages, and (2) a temporary injunction until the completion of the litigation.  On January 12, 2004, the trial court granted a temporary restraining order against the Board.  The trial court subsequently granted a motion for summary judgment filed by Jimenez and Olivarez.  After a hearing held on June 30, 2004, the trial court (1) denied the Board=s plea to the jurisdiction, (2) granted appellee=s request for a permanent injunction, and (3) granted appellee=s bail bond license renewal, effective November 21, 2003.  This appeal ensued.

                                                 B.  Plea to the Jurisdiction

In its first point of error, the Board contends the trial court erred in refusing to grant its plea to the jurisdiction because appellee failed to plead any cause of action for which sovereign immunity has been waived.

A plea to the jurisdiction challenges the trial court=s authority to determine the subject matter of a pleaded cause of action.  City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex. App.BEl Paso 2000, pet. dism=d w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.BCorpus Christi 1989, writ denied).  Because subject matter jurisdiction is a question of law, we review a trial court=s ruling on a plea to the jurisdiction de novo.  State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2003).  In determining whether jurisdiction exists, we do not look at the merits of the claim; rather, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader.  See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).  We consider the facts alleged in the petition, and to the extent it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court.  Tex. Natural Res. Conservation Comm=n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).  It is the plaintiff=s burden to allege facts affirmatively demonstrating the trial court=s jurisdiction.  Tex. Ass=n of Bus., 852 S.W.2d at 446; Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.BCorpus Christi 2001, no pet.).

The right to appeal the decision of an administrative agency is a statutory right. See Bouldin v. Bexar County Sheriff=s Civ. Serv. Comm=n, 12 S.W.3d 527, 529 (Tex. App.BSan Antonio 1999, no pet.).  Where the Legislature has created a right to appeal from an administrative decision, Athe applicable statutory provisions are mandatory and exclusive and must be complied with fully for the action to be maintainable.@  Id. (citing United Indep. School Dist. v. Gonzalez, 911 S.W.2d 118, 122 (Tex. App.BSan Antonio 1995, writ denied).  To seek appellate review of the Board=s decision, appellee was required to comply with the applicable provisions of the Texas Occupations Code.

Under section 1704.255 of the Texas Occupations Code, an Aapplicant or a license holder may appeal an order of a board denying an application for a license or renewal of a license, or suspending or revoking a license, by filing a petition in a district court in the county not later than the 30th day after the date the person receives notice of the denial, suspension, or revocation.@  Tex. Occ. Code Ann. ' 1704.255(a) (Vernon 2004).  The record shows that the Board denied the renewal of appellee=s license on January 6, 2004, and appellee filed his petition in the district court on January 12, 2004. 

The Board acknowledges that the district court had jurisdiction under section 1704.255 to review the Board=s decision to deny appellee=s license renewal.  However, the Board asserts that because appellee=s pleadings also sought damages and injunctive relief, appellee must have intended to plead its cause of action under some other unknown law and not section 1704.255.  We reject the Board=s assertion.

The factual allegations contained in appellee=s pleadings conclusively demonstrate the district court=s jurisdiction under section 1704.255, and the Board does not refer us to any authority indicating that if a pleading under this section contains requests for damages and injunctive relief, jurisdiction is negated.  On the contrary, this Court has previously determined that a district court has jurisdiction over causes of action for damages and suits for injunction against bail bond boards.  See Garcia-Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 373-75 (Tex. App.BCorpus Christi 1999, no pet.).  Accordingly, we conclude the trial court properly denied the Board=s plea to the jurisdiction.  Appellant=s first point of error is overruled.

                                      C.  Renewal of the Bail Bond License

In its fifth point of error, the Board contends the trial court erred in granting a bail bond license to appellee because appellee=s application contained an improperly sworn financial statement. 

When the Board refused to renew the bail bond license, appellee=s appeal to the district court was Aby trial de novo in the same manner as an appeal from a justice court to a county court.@  Tex. Occ. Code. Ann. ' 1704.256 (Vernon 2004).   In a de novo proceeding, the trial court must pass on the application without regard to the prior decision of the Board.  Harris County Bail Bond Bd. v. Blackwood, 41 S.W.3d 123, 127 (Tex. 2001); see Harris County Bail Bond Bd. v. Burns, 881 S.W.2d 61, 62 (Tex. App.BHouston [14th Dist.] 1994, writ denied) (A[T]he proceedings in the district court consist of both sides presenting evidence as if for the first time for the trial court to make its own determination based on the evidence before it.@). Because the application requirements of the Bail Bond Act are mandatory, it is necessary that the application in the record fully comply with all of the statutory requirements.  Blackwood, 41 S.W.3d at 126-27; see also Tex. Occ. Code. Ann. ' 1704.162(c) (Vernon 2004) (AAn application for renewal must comply with the requirements for an original license application under Section 1704.154.@). 

Under section 1704.154 of the occupations code, and the Local Rules of the Board, an application must be accompanied by a sworn financial statement.  See Tex. Occ. Code. Ann. ' 1704.154(b)(4)(A) (Vernon 2004).  The financial statement contained in the record, and submitted by Alkek in conjunction with appellee=s renewal application, states: AI Warren Alkek swear these financial statements are true to the best of my knowledge.@  We conclude this statement is not sufficient to comply with the requirements of the Act.

Because the Texas Occupations Code does not expressly authorize an oath to be made to the best of one=s knowledge or belief, such an oath is insufficient.  See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (AUnless authorized by statute, an affidavit is insufficient unless the allegations contained therein are direct and unequivocal and perjury can be assigned upon it.@).  A statement that facts Aare true to the best of my knowledge@ does not contain the necessary factual specificity; it does not Apositively and unqualifiedly represent the >facts= as disclosed in the affidavit to be true and within his personal knowledge.@  Brownlee, 665 S.W.2d at 112.

Because the financial statement contained in the record does not contain a properly sworn financial statement, we hold that the application before the trial court did not fully comply with all of the statutory requirements for an original license. See Tex. Occ. Code. Ann. ' 1704.162(c) (Vernon 2004); Blackwood, 41 S.W.3d at 126-27.  Therefore, the trial court erred in granting a license renewal to appellee.^[2]

Appellant=s fifth point of error is sustained.  Because this point is dispositive, we need not address appellant=s remaining points of error.  See Tex. R. App. P. 47.1.

We reverse the judgment of the trial court and render judgment in favor of the Nueces County Bail Bond Board.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed

this the 6th day of July, 2006.

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^[1]  In its second and third points of error, the Board also contends the trial court erred in denying its motions for summary judgment.  However, the denial of a motion for summary judgment generally constitutes an interlocutory order and not a final judgment from which a party may appeal.  Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980).  The denial of such a motion is appealable only where both parties file motions for summary judgment and one is granted.  Id.  (citing Tobin v. Garcia, 316 S.W.2d 396, 400‑01 (Tex. 1958)).  Because that is not the case here, we consider these points of error to be without merit.

In its fourth point of error, the Board contends the trial court erred by failing to make findings of fact and conclusions of law. On August 22, 2005, this Court issued an order of abatement directing the trial judge to correct that error and issue findings of fact and conclusions of law.  See Tex. R. App. P. 44.4(a); see also Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989). Findings of fact and conclusions of law were filed with this Court on October 4, 2005.  Therefore, we proceed with the remainder of this appeal.  See Tex. R. App. P. 44.4(b).

^[2] Although the court-ordered license expired on November 21, 2005, the Texas Supreme Court has held that Athe expiration of a license will not moot the controversy if the appeal arises from the renewal or refusal to renew a license under a statutory scheme that contemplates a continuous cycle of license renewals.@  See Harris County Bail Bond Bd. v. Blackwood, 41 S.W.3d 123, 126 n.2 (Tex. 2001).