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TEXAS COURT OF APPEALS, THIRD
DISTRICT, AT AUSTIN

NO. 03-07-00576-CV

Marble Falls Independent School
District, Appellant

v.

Robert
Scott, Commissioner of Education of The State of Texas
(1); Thornton Keel;

Donna
Keel; Michael Hellrung; Donna Hellrung; William Paschall; David Womack;

Natalie
Kloss; Darryl Hubbell; and Amy Hubbell, Appellees

FROM THE
DISTRICT COURT OF TRAVIS COUNTY, 200TH
JUDICIAL DISTRICT

NO. D-1-GV-07-000916, HONORABLE JOHN K. DIETZ, JUDGE
PRESIDING

O P I N I O
N

The Commissioner of
Education issued a decision granting a petition filed under education code
section 13.053 by the individual appellees, a group of parents of
school-age children ("the Keels"), who sought to detach their land from
appellant Marble Falls Independent School District ("Marble Falls") and
annex it to Lake Travis Independent School District instead.
Marble Falls filed suit in district court, seeking a declaratory
judgment, trial de novo, and injunctive relief against the Commissioner's
decision. Appellees filed pleas to the jurisdiction asserting that because
Marble Falls filed its petition in district court before the Commissioner
made a final ruling on Marble Falls's motion for rehearing in the
administrative proceeding, Marble Falls had not exhausted its
administrative remedies. The trial court agreed and granted the pleas,
dismissing Marble Falls's suit for want of jurisdiction. We affirm the
trial court's order.

Background

In December 2005, the Keels
filed a petition with Lake Travis pursuant to education code section
13.051, seeking to detach the Paleface Ranch territory from Marble Falls
and have it annexed to Lake Travis ISD. See Tex. Educ. Code Ann.
§ 13.051 (West 2006). In January 2006, the Keels filed the same petition
with Marble Falls. Marble Falls held a hearing in late February 2006
and disapproved the petition on March 27, 2006. In early March 2006, Lake
Travis held a hearing on the petition the Keels filed there, and on April
3, 2006, Lake Travis approved the petition. The Keels filed an appeal from
Marble Falls's decision, seeking a de novo hearing pursuant to section
13.051. Marble Falls filed a plea to the jurisdiction and answer,
asserting that the two school districts were not contiguous and
therefore that the petition was not proper under the education code. A
hearing was held in Travis County before an administrative law judge on
November 8, 2006, and the ALJ declared that Marble Falls's boundaries go
to the center of the Pedernales River and that the two districts were
contiguous. On April 19, 2007, the Commissioner issued a decision granting
the Keels's petition. Marble Falls filed a motion for rehearing on
May 11, 2007.

On May 15, 2007, before the
Commissioner ruled on Marble Falls's motion for rehearing, Marble Falls
filed the subject suit in district court seeking a trial de novo of the
Keels's petition and a declaration that the Commissioner's findings of the
districts' borders were invalid and that the Commissioner lacked
jurisdiction over the petition because the districts are not contiguous.
Marble Falls also complained that the hearing procedures were improper and
that the hearing should have been held inside Marble Falls's boundaries or
at its Regional Educational Service Center. The Commissioner and the Keels
both filed pleas to the jurisdiction arguing that Marble Falls's suit
should be dismissed for want of jurisdiction because the district filed
its petition before the Commissioner ruled on Marble Falls's motion for
rehearing
(2) and, therefore, Marble Falls had not exhausted its
administrative remedies before filing its petition. Marble Falls responded
that the hearing on the Keels's petition was not subject to the
Administrative Procedure Act (APA), see Tex. Gov't Code Ann.
§§ 2001.001-.902 (West 2008), and that its motion for rehearing was
thus not a prerequisite for obtaining judicial review. Marble Falls
further argued that its suit involved matters of pure statutory
construction that did not require exhaustion of remedies and that, even if
exhaustion were required, once the Commissioner ruled on Marble Falls's
motion for rehearing two days after the district filed its petition in
district court, the cause ripened and was then properly before the trial
court. Following a hearing on the appellees' pleas, the trial court signed
an order granting the pleas and dismissing Marble Falls's suit for lack of
jurisdiction.

Discussion

In five issues, Marble Falls
contends that its petition for judicial review was timely filed; the
administrative proceeding on the Keels's petition was not subject to the
APA; Marble Falls's suit involved matters of statutory construction
that did not require an exhaustion of remedies; jurisdiction in the trial
court became proper once the Commissioner overruled Marble Falls's
motion for rehearing; and the trial court should have abated or stayed the
cause pending the Commissioner's decision on the motion for rehearing
rather than dismissing the suit. Following oral argument, Marble Falls
filed a supplemental brief arguing that case law provides that a cause may
ripen after filing and that the trial court should have given Marble Falls
the opportunity to amend its pleadings. We will first discuss whether the
APA applies to this suit.

1. Does the APA
apply?

In its first and second
issues, Marble Falls argues that its suit was timely filed because under
the education code, the Commissioner's review of the detachment/annexation
petition was not governed by the APA.

The establishment,
consolidation, abolition, detachment, or annexation of a school district
is governed by a comprehensive scheme set out in chapter 13 of the
education code. See Tex. Educ. Code Ann. §§ 13.001-.285
(West 2006). Because the Commissioner of Education is given sole authority
to make an initial decision in a disputed petition to detach from one
district and annex to another, see id. § 13.051(j), the
Commissioner has exclusive jurisdiction over the dispute. See Thomas
v. Long, 207 S.W.3d 334, 340 (Tex. 2006). The supreme court has held
that when an agency has exclusive jurisdiction over such matters, a party
seeking judicial review of the agency's decision must exhaust all
available administrative remedies. See id. at 340. To
determine the procedures by which a party petitions for
detachment/annexation and, if necessary, seeks judicial review, we look to
the scheme set out in the education code. See id. at 340, 341-42
("administrative bodies only have the powers conferred on them by clear
and express statutory language or implied powers that are necessary to
carry out the Legislature's intent," and when rights are conferred only by
statute, to "enforce those rights, [parties] must follow the procedures
enumerated in the [agency's] rules as authorized by statute").

Section 13.051 provides that
territory may be detached from one school district and annexed to another
"district that is contiguous to the detached territory" if a majority of
either (1) the registered voters in the territory, if the territory
has residents, or (2) the owners of property in the territory, if the
territory does not have residents, present a petition to the boards of
both districts for their approval. Tex. Educ. Code Ann. § 13.051(a), (b).
If one board approves the petition but the other disapproves it, an
aggrieved party may appeal either district's decision to the Commissioner
for de novo review under section 7.057. Id. § 13.051(j). Section
7.057, the education code's general appeal statute, provides that in
certain cases, a person may appeal a school board's decision to the
Commissioner, who generally shall hold a hearing and make a decision.
Id. § 7.057(a), (b) (West 2006). "In conducting a hearing
under this subsection, the commissioner has the same authority relating to
discovery and conduct of a hearing as a hearing examiner has under
Subchapter F, Chapter 21." Id. § 7.057(b). Further, in a
detachment/annexation appeal, the Commissioner must consider "the
educational interests of the students . . . and the social, economic, and
education effects of the proposed boundary change." Id. §
13.051(j). A party who is aggrieved of the Commissioner's decision may
appeal to the district court in Travis County. Id. § 7.057(d).

Chapter 21 governs teacher
employment in general, including certification, employment contracts, and
hearings related to employment disputes. See id. §§ 21.001-.707
(West 2006 & Supp. 2008). Under chapter 21, subchapter F, titled,
"Hearings Before Hearing Examiners," a teacher may request a hearing to
dispute a school district's decision to suspend him without pay or
terminate his continuing contract at any time or his probationary or term
contract during the contract term. Id. § 21.251 (West 2006). In
such a hearing, section 21.255 provides that the hearing examiner may
issue subpoenas, administer oaths, rule on motions and the admission of
evidence, and allow depositions or other discovery. Id. § 21.255
(West 2006). A subchapter F hearing must be held within the school
district's geographical boundaries or at the district's regional education
service center. Id. § 21.255(a). Section 21.256 provides
that a subchapter F hearing must be private unless the teacher
requests that it be public and allows the examiner to close
an open hearing if necessary to maintain decorum or to protect a
child witness. Id. § 21.256(a), (f) (West 2006). It
further provides that the APA does not apply to a subchapter F hearing.
Id. § 21.256(b).

Marble Falls argues that
section 21.256(b) applies to all appeals under section 7.057. At the
hearing on appellees' pleas to the jurisdiction, the trial court
considered Marble Falls's argument and appellees' responses and observed:

That statute [section
7.057(b)] says that the Commissioner has the procedural abilities just as
an administrative judge does under Chapter 21, but Chapter 21 is dealing
more with personnel. And so it's as if the legislature was saying, as an
analog to what the Commissioner is able to do, the Commissioner has the
procedural abilities that a hearing examiner would have, for instance,
under Chapter 21, and that 21 is not governing the Commissioner's ability,
is one reading of it. Why is that reading incorrect?

Marble Falls responded that
"if the legislature wanted to say that, they could have." On appeal, it
insists that section 21.256(b) applies to detachment/annexation
proceedings and that to hold otherwise would write section 21.256(b) "out
of existence."
(3) We disagree.

Unless otherwise provided,
the APA's contested-case and judicial-review procedures apply to
agency-governed proceedings. See Nueces Canyon Consol. Indep. Sch.
Dist. v. Central Educ. Agency, 917 S.W.2d 773, 776 (Tex. 1996)
(appeal from detachment/annexation decision under APA); see also
Tex. Gov't Code Ann. §§ 2001.001 (APA provides minimum standards of
uniform practice and procedures for state agencies), .051-.178 (governing
conduct and judicial review of contested cases); Hartford Ins. Co. v.
Crain, 246 S.W.3d 374, 378 (Tex. App.--Austin 2008, no pet.)
("The APA sets forth general procedures for administrative contested
cases."). Section 7.057 explains that in an appeal from a school
district's decision to the Commissioner, the Commissioner's consideration
of the appeal is to be conducted under the APA's substantial-evidence
standard of review. Tex. Educ. Code Ann. § 7.057(c). It further grants the
Commissioner "the same authority relating to discovery and conduct of a
hearing as a hearing examiner has under Subchapter F, Chapter 21."
Id. § 7.057(b). Those powers include the ability to
permit depositions and discovery, determine the admissibility of evidence,
swear in witnesses, issue subpoenas, or take certain actions to protect
child witnesses or maintain decorum. See id. §§ 21.255, .256.

Section 7.057 does not,
however, limit the Commissioner's authority to that of a hearing examiner,
nor does it provide that all appeals from school board decisions are
subject to the provisions governing subchapter F hearings. If every
provision in subchapter F applied to the Commissioner's hearing of a
detachment/annexation dispute, we would have to apply provisions that
specifically mention a teacher's rights in a disciplinary hearing, require
"written agreement by the teacher," put the burden of proof on the school
district, or require the Commissioner to make recommendations for a school
board's consideration. See id. §§ 21.255, .256, .257 (West 2006).

We believe appellees and the
trial court correctly characterize the interplay of section 7.057's
provisions governing an appeal to the Commissioner from a district
decision, subchapter F's provisions governing the hearing of a teacher's
employment dispute, and the APA. Under section 13.051, an appeal from a
split decision on a petition for detachment/annexation is made to the
Commissioner pursuant to the provisions of section 7.057, and in
conducting the hearing, the Commissioner has the authority, if he wishes,
to issue subpoenas, rule on evidence, and administer oaths. The
Commissioner is not, however, bound by every provision in subchapter F,
many of which make no sense if applied to a detachment/annexation
petition. Thus, the Commissioner has the power necessary to conduct
hearings and make evidentiary decisions, but the overall hearing procedure
is governed by the APA, which requires the exhaustion of administrative
remedies before seeking judicial review in the courts. See, e.g.,
Nueces Canyon CISD, 917 S.W.2d at 776 (applying APA to review of
detachment proceeding); Amaral-Whittenberg v. Alanis,
123 S.W.3d 714, 719, 721 (Tex. App.--Austin 2003, no pet.) (applying
APA provisions to appeal under section 7.057 from Commissioner's decision
on teacher's grievance); San Benito Consol. Indep. Sch. Dist. v.
McGinnis, Lochridge & Kilgore, L.L.P., No. 03-96-00643-CV, 1997
Tex. App. LEXIS 4284, at *7 (Tex. App.--Austin Aug. 14, 1997, no pet.)
(not designated for publication) (when law firm did not timely seek
judicial review of detachment decision, district sued for malpractice; in
considering district's likelihood of success, court stated, "A proceeding
of this nature before the Commissioner of Education is a 'contested case.'
A suit for judicial review of the Commissioner's decision is therefore
governed by the Administrative Procedure Act." (citations omitted));
see also Texas Educ. Agency v. Cypress-Fairbanks I.S.D., 830
S.W.2d 88, 90 (Tex. 1992) (discussing predecessors to education code and
APA and holding that "Education Code must be read in conjunction with the
Administrative Procedure and Texas Register Act"); Grounds v. Tolar
Indep. Sch. Dist., 707 S.W.2d 889, 892 (Tex. 1986) ("aggrieved
parties who wish to appeal the Commissioner's decision must do so in
compliance with the [Term Contract Nonrenewal Act], which must be read in
conjunction with APTRA § 19(b)," which provided that "[a] person who has
exhausted all administrative remedies available within the agency and who
is aggrieved by a final decision in a contested case is entitled to
judicial review").

We hold that the APA applies
to detachment/annexation proceedings and we overrule Marble Falls's first
and second issues.

2. Failure to exhaust
administrative remedies

In its third issue, Marble
Falls contends that the trial court should not have granted appellees'
pleas to the jurisdiction because Marble Falls's suit raised pure
questions of law that did not require exhaustion of remedies. Its petition
in the trial court asked for declarations about whether the school
districts are contiguous, that the Commissioner's decision related to the
districts' boundaries was made without authority and that only a
commissioner's court would have had the authority to make the
determination made by the Commissioner, that Marble Falls's survey and
field notes were unambiguous, and that the hearing before the Commissioner
should have been held within Marble Falls's boundaries or at its regional
service center. On appeal, Marble Falls argues that these requests for
declarations under the Uniform Declaratory Judgments Act (UDJA) were pure
legal questions that did not require the exhaustion of remedies. We
disagree.

It is true that questions of
statutory construction are pure questions of law. See Lopez v.
Texas Workers' Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.--2000,
pet. denied). This is not such a case, however. Section 13.051 of the
education code provides that the Commissioner's review of a
detachment/annexation petition is de novo, and in her review, the
Commissioner is to consider the students' educational interests as well as
social, economic, and educational effects of the proposed change. Tex.
Educ. Code Ann. § 13.051(j). The parties, who did not agree or stipulate
to facts, asked the Commissioner to decide the dispute based on the facts
presented by the detachment/annexation petition and the parties, and
Marble Falls sought review of the Commissioner's application of the law to
the evidence presented to her. There is no question about what the
statute's plain language means. Instead, the questions asked of the trial
court related to whether the Commissioner was correct in her
determinations of the facts presented by the parties and how they fit
within the plain statutory language. Further, because we have already held
that the APA applies to detachment/annexation proceedings, the provision
in subchapter 21 stating that a teacher's employment hearing must be held
in the school district's boundaries or at its regional service center,
see id. § 21.255(a), does not apply. Indeed, in the context of
detachment and annexation, which necessarily involves two school
districts, applying that provision of section 21.255(a) makes little sense
and would require a factual determination of which district or service
center should be used. We overrule Marble Falls's third issue on
appeal.

We now turn to Marble
Falls's fourth and fifth issues, which contend that because the
Commissioner denied Marble Falls's motion for rehearing while the case was
pending, the cause ripened during its pendency, and that the proper remedy
would have been abatement to cure the problem. These issues require us to
decide if and when a jurisdictional defect created by a failure to exhaust
administrative remedies may "ripen" and whether such jurisdictional
defects would require abatement rather than dismissal.

Marble Falls argues that
even if the APA does apply, case law provides that if there is a way for
the dispute to ripen or for the defect to be cured, abatement or an
opportunity to re-plead would be the appropriate remedies, citing to
American Motorists Insurance Co. v. Fodge, 63 S.W.3d 801 (Tex.
2001), among others. In Fodge, the supreme court held:

If a claim is not within a
court's jurisdiction, and the impediment to jurisdiction cannot be
removed, then it must be dismissed; but if the impediment to jurisdiction
could be removed, then the court may abate proceedings to allow a
reasonable opportunity for the jurisdictional problem to be
cured.

Id. at 805.

Appellees argue instead that
Marble Falls's failure to wait for a decision on its motion for rehearing
is fatal to its suit. As the supreme court said in Thomas,

If an administrative body
has exclusive jurisdiction, a party must exhaust all administrative
remedies before seeking judicial review of the decision. Until the party
has satisfied this exhaustion requirement, the trial court lacks subject
matter jurisdiction and must dismiss those claims without prejudice to
refiling.

207 S.W.3d at 340 (citations
omitted). Under the APA, a timely motion for rehearing generally is a
jurisdictional prerequisite to an appeal in a contested case. Tex. Gov't
Code Ann. § 2001.145. A decision in a contested case is final: when the
time to file a motion for rehearing expires without a motion being filed;
on the date an order overruling a timely motion for rehearing is rendered;
on the date a timely motion for rehearing is overruled by operation of
law; when a state agency finds that a decision must have immediate effect
to avoid imminent public peril; or on a date agreed upon by the parties.
Id. § 2001.144(a). To seek judicial review, the party must be
"aggrieved by a final decision" and must have "exhausted all
administrative remedies available." Id. § 2001.171; see
id. § 2001.0145(b) (decision that becomes final upon expiration of
time for rehearing when no motion for rehearing filed is not appealable).

Several cases have followed
Fodge, holding that abatement to allow an opportunity to cure
should be afforded to parties seeking judicial review of an agency's
administrative determination. See, e.g., Subaru of Am., Inc.
v. David McDavid Nissan, Inc., 84 S.W.3d 212, 227-28 (Tex. 2002) (op.
on reh'g); DeSoto Wildwood Dev., Inc. v. City of Lewisville, 184
S.W.3d 814, 827 (Tex. App.--Fort Worth 2006, no pet.); In re Texas
Mut. Ins. Co., 157 S.W.3d 75, 82-83 (Tex. App.--Austin 2004,
orig. proceeding). However, in those cases, the appealing parties were
attempting to bring common-law claims in addition to seeking judicial
review of an administrative decision. Subaru of Am., 84 S.W.3d at
217 (dealer sued for motor vehicle code violations, violations of
Deceptive Trade Practices Act, and breach of contract and duty of good
faith and fair dealing); Fodge, 63 S.W.3d at 802-03 (insured
sought workers' compensation benefits and sued for insurance code and DTPA
violations, breach of duty of good faith and fair dealing, negligence, and
fraud); DeSoto Wildwood Dev., 184 S.W.3d at 819 (developer sued
city for return of fees, breach of contract, and takings); In re Texas
Mut. Ins., 157 S.W.3d at 77 (insured sued for breach of contract and
negligence in relation to attempts to obtain workers' compensation
policy).

In this case, Marble Falls's
arguments really only attacked the Commissioner's determination of the
Keels's petition and her related findings of fact and conclusions of law,
and Marble Falls did not bring any common-law claims against the
Commissioner or the parents. Unlike common-law claims, over which a trial
court has jurisdiction by way of its general statutory and constitutional
powers, a trial court may hear an administrative matter only if allowed by
statute. Thomas, 207 S.W.3d at 340. There was no common-law claim
alleged over which the trial court could exercise partial
jurisdiction and await Marble Falls's exhaustion of its
administrative claims. Because the relevant statutes in this purely
administrative case required as jurisdictional prerequisites
to seeking judicial review that Marble Falls both file a motion for
rehearing and wait for a final decision on the motion, the trial court
never had jurisdiction over the case and could not therefore abate the
case to allow time to cure.
(4)

Nor do the cases to which
Marble Falls cites for its argument that its case ripened while it was
pending involve judicial review of administrative decisions under the APA.
Perry v. Del Rio involved a challenge to congressional
redistricting and held that a cause of action may ripen while the case is
pending. 66 S.W.3d 239, 249-52 (Tex. 2001). Although it discussed the
interplay of jurisdiction and ripeness, it did not answer whether in an
administrative case, a statutorily mandated jurisdictional prerequisite to
filing a suit for judicial review, the right to which is granted only by
the legislature, may ripen after suit is filed. Wallace v. Texas
Department of Health did not involve the APA and instead considered
labor code provisions governing the timing of filing an employment
discrimination suit. No. 03-06-00703-CV, 2007 Tex. App. LEXIS 7253, at
*8-10 (Tex. App.--Austin Aug. 28, 2007, no pet.) (mem. op.). The premature
filing of suit, especially a suit governed by multiple agency-specific
statutes that must be read carefully and in conjunction to determine the
exact date on which to file suit, is different than Marble Falls's failure
to satisfy a statutory jurisdictional prerequisite to filing suit for
judicial review. Further, as we noted in Scott v. Presidio
I.S.D., in 2005, after our opinion in Wallace, the
legislature amended section 311.034 of the code construction act,
concerning waiver of sovereign immunity, to instruct courts that
"'[s]tatutory prerequisites to a suit, including the provision of notice,
are jurisdictional requirements in all suits against a governmental
entity.' A 'statutory prerequisite to a suit . . . against a governmental
entity' refers to a step or condition that must be satisfied before the
suit against the state can be filed."
(5) No. 03-07-00319-CV, 2008 Tex. App. LEXIS 7484, at *8-9 (Tex.
App.--Austin Aug. 28, 2008, no pet. h.) (quoting Tex. Gov't Code Ann. §
311.034 (West Supp. 2008)).

Instead, this case is most
similar to Lindsay v. Sterling, in which a party sought judicial
review of an administrative decision under the APA's predecessor but filed
for review while her motion for rehearing was pending before the agency.
690 S.W.2d 560, 563 (Tex. 1985). In that case, the supreme court held that
because the agency's decision was not final until the motion for rehearing
had been overruled expressly or by operation of law, the prematurely filed
petition for judicial review did not invoke the trial court's
jurisdiction. Id. at 563-64. The court held that awaiting a final
decision was "a jurisdictional prerequisite to judicial review by the
district court and cannot be waived." Id. at 563. We follow
Lindsay and overrule Marble Falls's fourth and fifth issues on
appeal.
(6)

Conclusion

In this suit for judicial
review, review that is granted only by statute and only when a party has
satisfied the APA's administrative process, see Cypress-Fairbanks
I.S.D., 830 S.W.2d at 90; Austin Indep. Sch. Dist. v.
Lowery, 212 S.W.3d 827, 831 (Tex. App.--Austin 2006,
pet. denied), we hold that Marble Falls's failure to satisfy the
jurisdictional prerequisite of awaiting a final decision before filing
suit resulted in a lack of jurisdiction in the trial court that could not
be cured. The trial court, therefore, properly granted appellees' pleas to
the jurisdiction. We affirm the trial court's order of
dismissal.

__________________________________________

David Puryear,
Justice

Before Chief Justice Law,
Justices Puryear and Pemberton

Affirmed

Filed: November 14, 2008

1. When this appeal was filed, Dr. Shirley Neeley was
the Commissioner of Education. That offices is now held by Robert Scott.
See Tex. R. App. P. 7.2(a) (if public officer is party in
official capacity and if officeholder changes, successor is automatically
substituted as party).

2. The Commissioner overruled Marble Falls's motion
for rehearing on May 17, 2007, two days after Marble Falls filed its
petition in this suit.

3. Marble Falls asserts that its argument is bolstered
by the fact that the Commissioner's decision was signed more than sixty
days after the hearing, in violation of section 2001.143 of the APA, which
states that a "decision or order that may become final . . . in a
contested case must be rendered not later than the 60th day after the date
on which the hearing is closed," Tex. Gov't Code Ann. § 2001.143(a) (West
2008), contending that appellees should not be allowed to argue that the
APA's time provisions apply only to Marble Falls and not equally to the
Commissioner. However, the sixty-day provision is "directory" and does not
impose a mandatory time limit on agency action. See Suburban Util.
Corp. v. Public Util. Comm'n, 652 S.W.2d 358, 362 (Tex. 1983)
(construing predecessor to APA § 2001.143).

4. The fact that the Commissioner ruled on the motion
for rehearing mere days after Marble Falls filed its petition in the
trial court cannot influence our decision in this case. For instance, had
Marble Falls filed its petition in the trial court on the same day it
filed its motion for rehearing, had the Commissioner taken much longer to
decide the motion for rehearing, or had Marble Falls filed its petition
shortly before filing its motion for rehearing, the situation would be
less troubling. When considering provisions governing statutorily granted
judicial review of administrative decisions, we must adhere strictly to
the rules as set by the legislature and cannot bend them to soften their
effect in one particular case while taking a hard line in other cases
presenting less sympathetic facts.

5. Marble Falls also argues that a premature petition
for judicial review is allowable when there are conflicting statutes
governing the time to file and when the appealing party risks losing the
right to appeal. See Simmons v. Texas St. Bd. of Dental Exam'rs,
925 S.W.2d 652, 653-54 (Tex. 1996); Heat Energy Advanced Tech.,
Inc. v. West Dallas Coal. for Envtl. Justice, 962 S.W.2d 288, 290-91
(Tex. App.--Austin 1998, pet. denied). However, in this case, there is no
statutory conflict that would lead Marble Falls to worry that it might
lose its right to appeal. Section 7.057 does not provide a deadline for
seeking judicial review, and section 21.307, which governs judicial review
of a teacher's employment dispute, provides that the deadline to seek
review is thirty days after the later of the dates the party receives
notice of the Commissioner's decision or a timely motion for rehearing is
overruled by order or operation of law. Tex. Educ. Code Ann. §§ 7.057,
21.307 (West 2006); see also Tex. Gov't Code Ann. § 2001.176
(West 2008) (deadline to seek judicial review runs thirty days after
decision is final and appealable). Thus, the deadline for seeking judicial
review could not run before Marble Falls's motion for rehearing was
overruled.

6. See also O'Neal v. Ector County Indep. Sch.
Dist., 221 S.W.2d 286, 290 (Tex. App.--Eastland 2006),
aff'd, 251 S.W.3d 50 (Tex. 2008) (discussing American
Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001), and affirming
trial court's dismissal of prematurely filed petition for judicial review,
stating, "The supreme court has not elaborated on the circumstances which
justify an abatement, but nothing in the court's opinion indicates those
circumstances are present in this
case.").