Texas Department of Family and Protective Services v. James Wallace ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00373-CV
Texas Department of Family and Protective Services, Appellant
v.
James Wallace, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GN-11-003285, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
MEMORANDUM OPINION
James Wallace, the operator of a child-care center, filed a suit for judicial review of
a final order of the Texas Department of Family and Protective Services (“the Department”). The
Department had found that Wallace had neglected a child in his care, ordered that he cease operating
the center, and placed his name in its database of persons the Department has reason to believe had
a role in child neglect and abuse. The Department filed a plea to the jurisdiction asserting that
Wallace’s petition was untimely filed and that the trial court therefore lacked subject-matter
jurisdiction. See Tex. Gov’t Code Ann. § 2001.176 (West 2008) (person initiates judicial review by
filing petition not later than 30th day after date on which decision appealed is final); Jones v. State
Bd. of Educator Certification, 315 S.W.3d 237, 243 (Tex. App.—Austin 2010, pet. denied) (when
petition not filed within 30-day period, trial court had no jurisdiction over suit for judicial review).
The trial court denied the plea to the jurisdiction. We will vacate the trial court’s order and dismiss
the cause for lack of jurisdiction.
PROCEDURAL BACKGROUND
The Department investigated Wallace’s child-care center, concluded that Wallace had
neglected a child in his care, and directed him to cease operations. Wallace sought administrative
review of the Department’s findings, and they were upheld by the Department. Wallace then sought
review of the Department’s actions by an administrative law judge (ALJ). The ALJ affirmed the
Department’s findings. Wallace then timely filed a motion for rehearing, which was overruled by
operation of law on August 22, 2011. See Tex. Gov’t Code Ann. § 2001.146 (West 2008).
Consequently, the deadline for Wallace to file a suit for judicial review was September 21, 2011.
Id. § 2001.176. Wallace contends that his original petition was electronically transmitted to the
district clerk on September 15 but that the electronic filing was rejected, a fact his counsel apparently
did not discover until some time in October. Wallace’s counsel refiled the petition on October 26.
The Department disputed Wallace’s counsel’s version of the facts, contending that he did not file
an original petition until October 26. The Department filed a plea to the jurisdiction asserting that,
due to the late filing, the trial court lacked subject-matter jurisdiction over the case. The trial court
denied the plea, and the Department perfected this appeal.
DISCUSSION
In a single issue, the Department contends the trial court should have granted its plea
to the jurisdiction because the district court’s file stamp indicates that Wallace’s petition was filed
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on October 26, 2011, more than thirty days after the agency order became final, and therefore the
trial court lacked jurisdiction over this suit for judicial review. See Jones, 315 S.W.3d at 243.
Wallace’s counsel counters that he electronically filed the original petition on September 15, 2011,
but unbeknownst to him the clerk’s office rejected the filing. Wallace’s counsel states in the
appellee’s brief that he did not read an e-mail alert sent to him by “ProDoc eFiling,” the service he
used to electronically file the petition, and therefore did not realize that the filing had been rejected.
Wallace’s counsel asserts that as soon as he discovered that the filing had been rejected, he conferred
with the district clerk, who instructed him to refile the document, which he did on October 26, 2011.
Notwithstanding the district clerk’s October 26 file stamp, Wallace’s counsel maintains that
attempting to electronically file the petition on September 15 is the equivalent of giving it to the
clerk, and therefore it should be deemed filed on that date even though it was rejected. See Warner
v. Glass, 135 S.W.3d 681, 684 (Tex. 2004) (“Generally, ‘an instrument is deemed in law filed at the
time it is left with the clerk, regardless of whether or not a file mark is placed on the instrument and
regardless of whether the file mark gives some other date of filing.’” (quoting Standard Fire Ins. Co.
v. LaCoke, 585 S.W.2d 678, 680 (Tex. 1979))); Travis (Tex.) Civ. Dist. Ct. Loc. R. 15.4.3(b) (“Upon
sending an electronically-transmitted document to a filer’s [electronic filing service provider], the
filer is deemed to have delivered the document to the clerk and, subject to [Local Rule] 15.4.3(h),
the document is deemed to be filed.”).
Here, the original petition contained in the clerk’s record bears the file-stamped date
of October 26, 2011. A document’s file stamp is prima facie evidence of the date of filing, but the
presumption it raises may be rebutted. Dallas Cnty. v. Gonzales, 183 S.W.3d 94, 103 (Tex.
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App.—Dallas 2006, pet. denied) (citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp.,
787 S.W.2d 371, 371-72 (Tex. 1990) (per curiam)). Wallace did not file a response to the
Department’s plea to the jurisdiction. At the hearing, Wallace’s attorney did not testify but, in
argument, stated that he electronically filed the original petition on September 15, 2011, a date both
parties agree was within the 30-day window for filing a petition for review in this case. Wallace’s
counsel has attached to his brief his own affidavit stating that he filed Wallace’s original petition
electronically on September 15. But this affidavit, dated December 3, 2012, is not part of the
appellate record. Accordingly, we may not consider it. See Canton-Carter v. Baylor Coll. of Med.,
271 S.W.3d 928, 932 n.2 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (appellate court cannot
consider documents attached to briefs that were not before trial court and are not part of
appellate record).
At the hearing on the Department’s plea to the jurisdiction, Wallace’s counsel
introduced a one-page exhibit that purports to be an e-mail from ProDoc eFiling, a service used to
file documents electronically with Texas courts. The e-mail’s “sent date” appears to be
September 15, but the body of the e-mail includes the following: “Date of Status: Wednesday,
October 26, 2011 2:42 PM (GMT-06:00) Central Time (US & Canada).” The e-mail also includes
a section labeled “Comments,” which states, “The efiling was rejected per request of the filer.”
Wallace contends that this document rebuts the presumption created by the October 26 file-stamp
that the original petition was not filed until that date. The Department, on the other hand, challenges
the authenticity of the exhibit, pointing out that it is illogical for an e-mail sent on September 15 to
reference an event that happened 40 days later. We conclude that this exhibit, by itself, which is
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unclear and unexplained, does not create a fact issue regarding whether Wallace’s counsel
electronically filed or attempted to file an original petition on September 15. Because Wallace’s
counsel did not testify at the hearing, and there was no other evidence presented to the trial court,
Wallace failed to rebut the presumption created by the October 26 file-stamp date on the petition
contained in the record. Consequently, we must reverse the trial court’s denial of the Department’s
plea to the jurisdiction.
Having concluded that the trial court erred in denying the Department’s plea to the
jurisdiction we vacate the court’s order and render judgment that the Department’s plea to the
jurisdiction is granted. See Tex. R. App. P. 43.3. Because the trial court lacked jurisdiction over
Wallace’s suit for judicial review, we dismiss this cause for want of jurisdiction.
CONCLUSION
The trial court’s order denying the Department’s plea to the jurisdiction is vacated.
We render judgment granting the Department’s plea to the jurisdiction and dismiss this cause for
want of jurisdiction.
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Goodwin and Field
Dismissed for Want of Jurisdiction
Filed: January 31, 2013
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