Texas Department of Public Safety v. Danish Mahmood Shaikh, Licensee

Opinion issued January 31, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00441-CV
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TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
DANISH MAHMOOD SHAIKH, Appellee
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Case No. 10-CCV-043005
OPINION
After the Texas Department of Public Safety (“the Department”) sent Danish
Mahmood Shaikh a notice revoking his concealed handgun license (“CHL”) and
Shaikh requested a hearing on the revocation before the justice court, the court
denied the Department’s petition to revoke. Upon the Department’s appeal, the
county court at law ruled that the Department failed to comply with the statutory
timelines for holding the initial revocation hearing before the justice court, and it
dismissed the case for want of jurisdiction. In one issue, the Department argues
that failure to meet the timelines of Government Code section 411.180(b) does not
divest the justice court or the county court at law of subject matter jurisdiction to
hear the revocation petition.
We reverse and remand.
Background
The Department issued a CHL to Shaikh. On March 30, 2010, Shaikh was
convicted of the Class A misdemeanor offense of Possession of Gambling
Device/Equipment/Paraphernalia in Harris County. In response, the Department
notified Shaikh of its intent to revoke his CHL.
On June 10, 2010, shortly after Shaikh received notice of the Department’s
intent to revoke his CHL, he requested a hearing on the revocation before a justice
of the peace. On July 22, 2010, forty-two days after the Department received
Shaikh’s request for a hearing, the Department petitioned the justice court to
schedule the hearing. The justice court held the revocation hearing on August 19,
2010, seventy days after the Department received Shaikh’s request for a hearing.
The justice court ruled on the merits of the Department’s petition and found that
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the Department’s revocation was not supported by a preponderance of the
evidence.
The Department subsequently filed a timely petition for a trial de novo in the
county court at law. The Department argued that its request for revocation was
supported by a preponderance of the evidence because Shaikh’s misdemeanor
conviction rendered him ineligible to maintain his CHL pursuant to Government
Code section 411.186(a)(3). See TEX. GOV’T CODE ANN. § 411.186(a) (Vernon
2012) (listing grounds for revoking concealed handgun license).
In his original answer, Shaikh denied that the Department could revoke his
CHL. Shaikh also argued that neither the justice court, which held the initial
revocation hearing, nor the county court at law, in which the Department filed its
petition for trial de novo, had subject matter jurisdiction to consider the
Department’s petition. Shaikh argued that the Department failed to meet two
statutory deadlines—(1) the deadline requiring the Department to schedule a
hearing before the justice court within thirty days of its receipt of Shaikh’s request
for a hearing and (2) the deadline requiring the justice court to hold the revocation
hearing within sixty days of the date Shaikh requested the hearing—which
ultimately deprived both courts of jurisdiction to decide the merits of the
revocation petition. See id. § 411.180(b) (Vernon 2012).
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The Department replied and argued that both the justice court and the county
court at law had subject matter jurisdiction to determine the revocation petition on
its merits. Specifically, the Department argued that the timelines of section
411.180(b) were “considered directory as opposed to mandatory.” The
Department argued that Shaikh, who became statutorily ineligible for a CHL when
he was convicted of a Class A misdemeanor, could not maintain his license merely
because the justice court failed to hold a hearing on the Department’s revocation
petition within sixty days of Shaikh’s request for a hearing. The Department urged
the county court at law to find that it had jurisdiction over the revocation petition.
After a hearing on February 15, 2011, the county court at law signed an
order finding that it did not have jurisdiction and dismissing the case. At the
Department’s request, the court made the following findings of fact:
1. The Department notified DANISH MAHMOOD SHAIKH
(Licensee) of its intent to revoke Licensee’s license to carry a
concealed handgun.
2. Licensee requested [a] hearing on June 8, 2010 which was
received by the Department on June 10, 2010.
3. The Department scheduled a hearing on July 23, 2010 for
August 19, 2010.
4. The Department failed to schedule a hearing with the Justice
Court within thirty days of its receipt of Licensee’s request for
hearing as required by § 411.180(b) of the Texas Government
Code.
5. The hearing in the Justice Court was held on August 19, 2010.
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6. The Justice Court denied the revocation sought by the
Department.
7. The Department appealed the Justice Court’s ruling to this
Court.
8. The hearing in the Justice Court was not held within sixty (60)
days of Licensee[’s] request for the hearing as required by
§ 411.180(b) of the Texas Government Code.
The court also made the following conclusion of law: “The Court did not have
subject matter jurisdiction over the above entitled and numbered cause.”
Construction of Government Code Section 411.180(b)
In its sole issue, the Department contends that the county court at law
erroneously determined that the statutory timelines in Government Code section
411.180(b) for requesting and holding a hearing on a revocation petition before the
justice court are mandatory and that failure to comply with the timelines deprives
both the justice court and the county court at law of subject matter jurisdiction.
Resolution of this issue is a matter of statutory construction, which is a
question of law that we review de novo. See City of Garland v. Dallas Morning
News, 22 S.W.3d 351, 357 (Tex. 2000); City of Webster v. Myers, 360 S.W.3d 51,
56 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (observing that we review
questions concerning both subject matter jurisdiction and statutory construction
under de novo standard). The primary purpose of construing a statute is to
determine and give effect to the Legislature’s intent. City of San Antonio v. City of
Boerne, 111 S.W.3d 22, 25 (Tex. 2003); Fitzgerald v. Advanced Spine Fixation
5
Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). When determining this intent, we
look first to the plain language of the statute, for “it is a fair assumption that the
Legislature tries to say what it means, and therefore the words it chooses should be
the surest guide to legislative intent.” Fitzgerald, 996 S.W.2d at 866; see also City
of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008) (“[W]e construe the
statute’s words according to their plain and common meaning, unless a contrary
intention is apparent from the context, or unless such a construction leads to absurd
results.”) (citations omitted). We read every word, phrase, and expression in a
statute as if it was deliberately chosen, and we likewise presume that words
excluded from the statute are done so purposefully. Town Hall Estates-Arlington,
Inc. v. Cannon, 331 S.W.3d 793, 795 (Tex. App.—Fort Worth 2010, no pet.).
When determining legislative intent, we do not examine a term or provision in
isolation, but we instead read the particular statute as a whole. State ex rel. State
Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).
Government Code Chapter 411 contains provisions concerning licenses to
carry a concealed handgun. Section 411.180 specifically addresses the
Department’s obligation to notify a licensee of the denial, revocation, or
suspension of a CHL, as well as judicial review of such a determination. See
generally TEX. GOV’T CODE ANN. § 411.180. Section 411.180(a) provides:
The department shall give written notice to each applicant for a
handgun license of any denial, revocation, or suspension of that
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license. Not later than the 30th day after the notice is received by the
applicant, according to the records of the department, the applicant or
license holder may request a hearing on the denial, revocation, or
suspension. . . . On receipt of a request for hearing from a license
holder or applicant, the department shall promptly schedule a hearing
in the appropriate justice court in the county of residence of the
applicant or license holder. The justice court shall conduct a hearing
to review the denial, revocation, or suspension of the license. In a
proceeding under this section, a justice of the peace shall act as an
administrative hearing officer. . . .
Id. § 411.180(a) (emphasis added). Subsection 411.180(b) describes specific
actions that the Department must take upon receiving the licensee’s request for a
hearing:
The department, on receipt of a request for hearing, shall file the
appropriate petition in the justice court selected for the hearing and
send a copy of that petition to the applicant or license holder at the
address contained in departmental records. A hearing under this
section must be scheduled within 30 days of receipt of the request for
a hearing. The hearing shall be held expeditiously but in no event
more than 60 days after the date that the applicant or license holder
requested the hearing. The date of the hearing may be reset on the
motion of either party, by agreement of the parties, or by the court as
necessary to accommodate the court’s docket.
Id. § 411.180(b) (emphasis added). The justice court shall then determine if the
revocation is supported by a preponderance of the evidence. Id. § 411.180(c). A
party adversely affected by a hearing before the justice court “may appeal the
ruling by filing within 30 days after the ruling a petition in a county court at law in
the county in which the applicant or license holder resides . . . .” Id. § 411.180(e).
“The trial on appeal shall be a trial de novo without a jury.” Id.
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When used in statutes, the terms “must” and “shall” are “generally
recognized as mandatory, creating a duty or obligation.” Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (construing Agricultural Code section
64.006(a)). We generally give the word “must” a mandatory meaning when it is
followed in the statutory language by a noncompliance penalty. Id. (quoting
Harris Cnty. Appraisal Dist. v. Consol. Capital Props. IV, 795 S.W.2d 39, 41 (Tex.
App.—Amarillo 1990, writ denied)). Courts have, however, held that language
that appears to impose a mandatory duty is only directory “when this interpretation
is most consistent with the Legislature’s intent.” Id. When determining whether
the Legislature intended for a statutory provision to be mandatory or directory, “we
consider the plain meaning of the words used, as well as the entire act, its nature
and object, and the consequences that would follow from each construction.” Id. at
494 (citing Albertson’s Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) and
Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956)). Even if we
determine that a statutory requirement is mandatory, however, this determination
does not necessarily mean that compliance with the requirement is also
jurisdictional. Id. at 494. “When a statute is silent about the consequences of
noncompliance, we look to the statute’s purpose to determine the proper
consequences.” Id.
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To determine whether a particular statutory timing provision is mandatory,
we first look to whether the statute contains a noncompliance penalty. Id. at 495.
“If a provision requires that an act be performed within a certain time without any
words restraining the act’s performance after that time, the timing provision is
usually directory.” Id.
Here, section 411.180(b) contains two timing provisions. The first is that if
a licensee requests a hearing before the justice court in response to the
Department’s notification of revocation, the hearing “must be scheduled within 30
days of [the Department’s] receipt of the request for a hearing.” TEX. GOV’T CODE
ANN. § 411.180(b). The second timing provision states, “The hearing shall be held
expeditiously but in no event more than 60 days after the date that the applicant or
license holder requested the hearing.” Id. The first and second timing provisions
are then followed by the provision that “[t]he date of the hearing may be reset on
the motion of either party, by agreement of the parties, or by the court as necessary
to accommodate the court’s docket.” Id.
The Department cites the Tyler Court of Appeals’ decision in Texas
Department of Public Safety v. Forsgard, 108 S.W.3d 344 (Tex. App.—Tyler
2003, no pet.), which addressed whether section 411.180(b)’s first timing provision
was mandatory or directory in the context of an initial application for a CHL. In
Forsgard, the court instructed, “In determining whether the Legislature intended a
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provision to be mandatory or merely directory, consideration should be given to
the entire act, its nature and object, and the consequences that would follow from
each construction.” Id. at 346 (quoting Tex. Dep’t of Pub. Safety v. Sweeny, 97
S.W.3d 597, 600 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (construing
Transportation Code sections 524.021(a) and 724.041(b), governing hearing on
driver’s license suspension) and Chisholm, 287 S.W.2d at 945). “Provisions which
are not of the essence of the thing to be done, but which are included [in the
statute] for the purpose of promoting the proper, orderly, and prompt conduct of
business, are generally not regarded as mandatory.” Id. (citing Sweeny, 97 S.W.3d
at 600).
The Tyler court observed in Forsgard that, although section 411.180(b)
states that the Department must schedule a hearing within thirty days of receiving
the applicant’s request, “the statute provides no consequences for [the
Department’s] failure to so act.” Id. at 347. The Tyler court ultimately concluded,
in light of “the fact that the Legislature has not expressly envisioned any
consequences for [the Department’s] failure to comply with the aforementioned
scheduling provisions,” that the Legislature intended for the thirty-day timing
provision to be directory and included it in the statute “for the purpose of
promoting the proper, orderly, and prompt conduct of business.” Id.
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Section 411.180(b)’s second timing provision, which was not at issue in
Forsgard, but is at issue here, requires that the hearing on the revocation petition
be held within sixty days of the licensee’s request, and this provision includes
statutory language “restraining the act’s performance after that time.” See Wilkins,
47 S.W.3d at 495. This provision requires the hearing to be held “expeditiously”
and then clarifies that the hearing is to be held “in no event more than 60 days”
after the date of the licensee’s request. See TEX. GOV’T CODE ANN. § 411.180(b).
The statute then, however, provides that the date of the hearing may be reset “on
the motion of either party, by agreement of the parties, or by the court as necessary
to accommodate the court’s docket.” Id.
Although section 411.180(b) contains language stating that the hearing shall
not be held more than sixty days after the date of the request, the statute does not
contain any explicit language indicating that failure to comply with the timing
requirement deprives either the justice court or the county court at law of subject
matter jurisdiction. See City of DeSoto v. White, 288 S.W.3d 389, 395 (Tex. 2009)
(discussing explicit jurisdictional language with respect to Local Government Code
section 143.057(a)); see also Tex. Dep’t of Pub. Safety v. Guerra, 970 S.W.2d 645,
648–50 (Tex. App.—Austin 1998, pet. denied) (holding, where there was no
jurisdictional language, that Transportation Code section 524.032, providing that
hearing on suspension of driver’s license “shall be held” within forty days of driver
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receiving notice of suspension, is directory and failure to hold hearing within forty
days does not preclude Department from suspending license). No statutory
language addresses the consequences of the failure of the justice court to hold a
hearing within sixty days after the date of the licensee’s request. See Guerra, 970
S.W.2d at 649 (“[T]he Legislature’s failure to attach a consequence to a situation
where a hearing is held outside the 40 days of the notice of suspension persuades
us to hold section 524.032(a) directory. . . . If the Legislature had intended for
section 524.032(a) to be mandatory, it could have easily provided consequences for
noncompliance.”); see also City of DeSoto, 288 S.W.3d at 396 (“We have also
looked for ‘the presence or absence of specific consequences for noncompliance’
in determining whether a provision is jurisdictional.”); Wilkins, 47 S.W.3d at 495
(considering “the consequences that result from each possible interpretation” as
factor in deciding whether provision is jurisdictional).
Although section 411.180(b) provides that a hearing before the justice court
on the Department’s revocation petition “shall be held expeditiously but in no
event more than 60 days after” the date the license holder requested the hearing,
the statute provides no guidance on what must happen if that deadline is not met.
See TEX. GOV’T CODE ANN. § 411.180(b); Guerra, 970 S.W.2d at 649. Section
411.180 does not, for example, explicitly provide that if no hearing is held within
sixty days despite the licensee’s request for such a hearing, the Department’s
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revocation decision is vacated and the licensee’s CHL is automatically reinstated,
nor does it provide that the county court at law loses subject matter jurisdiction to
hear the case if the deadline is not met. Cf. In re E.D.L., 105 S.W.3d 679, 687
(Tex. App.—Fort Worth 2003, pet. denied) (“Despite language stating that the
hearing ‘shall be held not later than the 14th day after the date the child was taken
into possession,’ the statute has no corresponding provision dictating dismissal for
noncompliance.”) (quoting TEX. FAM. CODE ANN. § 262.201(a)); see also City of
Laredo v. Almazan, 179 S.W.3d 132, 125 (Tex. App.—San Antonio 2005, no pet.)
(concluding Local Government Code section 143.052(d) is not jurisdictional in
part because “the legislature clearly indicated its ability to dictate a noncompliance
penalty by providing in subsection (f) that the failure to comply with subsection (e)
would result in reinstatement” but subsection (d) contained no such provision).
Additionally, the purpose of the hearing before the justice court is to provide
an opportunity for the licensee to challenge the revocation and to require the
Department to justify its action by demonstrating that a preponderance of evidence
supports the revocation. See TEX. GOV’T CODE ANN. § 411.180(c) (“The justice
court shall determine if the denial, revocation, or suspension is supported by a
preponderance of the evidence. Both the applicant or license holder and the
department may present evidence.”); see also Tex. Dep’t of Pub. Safety v. Manwell,
236 S.W.3d 905, 907 (Tex. App.—Corpus Christi 2007, no pet.) (“Section 411.180
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places the burden of proof at the hearing on the Department to support the
suspension of the license.”). If the justice court determines that the revocation is
not supported by a preponderance of the evidence, then the court shall order the
Department to immediately return the CHL to the license holder. TEX. GOV’T
CODE ANN. § 411.180(c).
Although it was specifically addressing the thirty-day timing provision, the
Tyler court in Forsgard noted the consequence of construing section 411.180(b) as
directory instead of mandatory: the Department “might not act with the diligence
anticipated by the statute” and, as a result, a licensee who has been notified that the
Department has denied or revoked his license “would be subject to undue delay in
appealing such a decision” to the county court at law. Forsgard, 108 S.W.3d at
347. If, however, a timely hearing is mandatory and no hearing before the justice
court can be held more than sixty days after the licensee’s request, then, if the
hearing fails to occur within this sixty-day window, the last action concerning the
license is the Department’s notice of revocation and no review of the Department’s
action is possible.
If we construe section 411.180(b) to prohibit a hearing before the justice
court more than sixty days after an applicant requests such a hearing, the
Department, which is the party that controls filing the petition to support denial or
revocation of a license and scheduling the hearing before the justice court, could
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simply schedule the hearing for more than sixty days after the request for the
hearing, and this action would completely deprive an applicant of his right to have
the justice court review a denial. In the context of a review of the denial of a CHL
application, this interpretation could result in the Department’s decision escaping
review despite the licensee’s request for a hearing. Such a result would subvert the
Legislature’s purpose for providing an opportunity for judicial review.
Finally, section 411.180(b) states, “The date of the hearing may be reset on
the motion of either party, by agreement of the parties, or by the court as necessary
to accommodate the court’s docket.” TEX. GOV’T CODE ANN. § 411.180(b). Texas
courts have held that a statutory provision is not jurisdictional “if it allows the
tribunal and a party to agree to postpone or extend the time within which a tribunal
is ordinarily required to resolve a dispute” because the tribunal’s subject matter
jurisdiction “exists not by agreement but by virtue of the constitution and statutes
as a matter of law.” Nash v. Civil Serv. Comm’n, Palestine, 864 S.W.2d 163, 166
(Tex. App.—Tyler 1993, no writ). Although section 411.180(b) states that a
hearing before the justice court shall be held no later than sixty days after the date
the license holder requested the hearing, it also allows the parties or the justice
court to reset the hearing beyond the sixty-day window. Thus, the date the hearing
is scheduled is not wholly within the control of the Department. It is also possible
that, because of the justice court’s schedule, and despite the Department’s
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diligence in attempting to set the hearing, a hearing could not be held within the
sixty-day time period. See Guerra, 970 S.W.2d at 649. “If such a scheduling
problem were to arise, it would be unreasonable to punish the Department for acts
that are not within its control.” Id. The text and structure of Chapter 411 do not
require such results.
We conclude that section 411.180(b)’s sixty-day timing provision is
directory and not jurisdictional. See Wilkins, 47 S.W.3d at 495 (“When deciding
whether the Legislature intended a particular provision to be jurisdictional, we
must also consider the consequences that result from each possible construction.”);
see also City of Rockwall, 246 S.W.3d at 625–26 (holding that we generally
construe statutory words according to their plain and common meaning unless such
construction leads to an absurd result).
We therefore hold that the county court at law erroneously determined that
the sixty-day timing provision of Government Code section 411.180(b) was
mandatory and jurisdictional and that, because the justice court did not hold a
hearing on the Department’s revocation petition within sixty days of Shaikh’s
request for a hearing, it lacked subject matter jurisdiction over the case.
We sustain the Department’s sole issue.
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Conclusion
We reverse the judgment of the county court at law and remand the case for
a trial de novo on the Department’s revocation petition pursuant to Government
Code section 411.180(e).
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
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