Kurtzemann v. TDPS (Tex.App.- Houston [1st Dist.] Aug. 6, 2009)(Radack)
(attempted appeal of driver's license suspension by judicial review suit, failure to comply with
Because appellant did not exhaust his administrative remedies by first obtaining
an adverse ruling by an ALJ [Administrative Law Judge], the trial court never
acquired subject-matter jurisdiction over the case.
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Taft and Sharp
01-08-00543-CV David Kurtzemann v. Texas Department of Public Safety
Appeal from County Civil Ct at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle
Trial Court Cause No. 912761
This is an appeal from the trial court's judgment dismissing appellant's suit for judicial review
relating to the suspension of appellant's driver's license after he refused to submit a breath
specimen. See Tex. Transp. Code Ann. § 724.015(2) (Vernon Supp. 2008). The Texas
Department of Public Safety ("DPS") contends the trial court had no subject-matter jurisdiction
to consider the case because appellant never obtained a ruling by an administrative law judge
("ALJ"); therefore, the trial court properly dismissed the case. We agree. Accordingly, we
The following timeline is relevant to the disposition of this case:
April 25, 2006 Appellant was arrested for driving while intoxicated. After he refused to provide
a breath specimen, his driver's license was suspended.
April 18, 2007 Appellant wrote a letter to DPS inquiring about the status of his driver's license.
July 9, 2007 The Department responded on July 9, 2007, stating that appellant's license was
suspended and that appellant was served notice of the suspension on the night of his arrest.
August 31, 2007 Appellant, by letter, requested an administrative hearing with the Department
to contest the suspension.
October 11, 2007 A supervising attorney at the Department responded by letter dated October
11, 2007 that the Department had no jurisdiction to grant him a hearing because he did not
request a hearing within 15 days of receiving notice of the suspension. See Tex. Transp. Code
Ann. §§ 724.041, 724.044 (Vernon 1999, Supp. 2008).
February 4, 2008 Appellant filed a pro se suit in the trial court on February 4, 2008, to appeal
the suspension of his driver license
DPS contends that the trial court properly dismissed appellant's suit for judicial review because
there was no ruling by an ALJ from which to appeal. Although DPS did not raise this before the
trial court, subject matter jurisdiction challenges cannot be waived and may be raised for the
first time on appeal. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000); Tex.
Assoc. of Business v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).
Regarding the procedure required to receive an administrative hearing challenging a driver
license, section 724.044 of the Transportation Code states: "A person waives the right to a
hearing under this subchapter and the department's suspension or denial is final and may not
be appealed if the person . . . fails to request a hearing under Section 724.041." Tex. Transp.
Code Ann. § 724.044 (Vernon 2007). Section 724.041 states that a person must request a
hearing not later than the 15th day after the date on which the person received notice of
suspension. See Tex. Transp. Code Ann. § 724.041 (Vernon 2007). Further, a person desiring
to appeal a driver's license suspension to a county court must appeal from a hearing that
resulted in an administrative law judge's decision. See Tex. Transp. Code Ann. § 524.041
Appellant contends and filed an affidavit to the effect that he did not receive notice of the
suspension until July 9, 2007, the date of the Department's reply letter. However, regardless of
whether appellant received notice of the suspension on April 25, 2006, when he was arrested,
or July 9, 2007, when DPS responded to an inquiry about the status of appellant's driver's
license, the fact remains that appellant did not request a hearing until August 31, 2007, which is
not within the 15 days required by Section 724.041. Because appellant did not timely request a
hearing after receiving notice that his license had been suspended, there is no final
administrative law judge's decision or even an administrative hearing to appeal from as
required by Section 524.041. Therefore, appellant waived his right to a hearing and his right to
appeal the suspension of his driver's license. See Tex. Transp. Code Ann. §§ 724.041,
724.044. Because appellant did not exhaust his administrative remedies by first obtaining an
adverse ruling by an ALJ, the trial court never acquired subject-matter jurisdiction over the
case. See City of Houston v. Williams, 99 S.W.3d 709, 714 (Tex. App.--Houston [14th Dist.]
2003, no pet.). As such, the trial court did not err by dismissing (1) the case.
We affirm the judgment of the trial court. We also overrule all pending motions.
Panel consists of Chief Justice Radack and Justices Sharp and Taft. (2)
1. We note that the judgment indicates that the trial court dismissed the case for want of prosecution,
not want of jurisdiction. Error, if any, in providing the wrong grounds for dismissal, is harmless. See Tex.
R. App. P. 44.1(a)(1) (stating that no judgment in civil case should be reversed unless error complained
of "probably caused the rendition of an improper judgment.").
2. Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by
assignment for the disposition of this case, which was submitted on June 30, 2009.