Opinion
No. 05-04-01061-CV
Opinion issued September 20, 2004.
Original Proceeding from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-00505-M.
Writ of Mandamus Granted.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
Rodney Polk sued the Texas Board of Chiropractic Examiners (Board) for wrongful revocation of his chiropractic license in a contested case hearing to an administrative law judge. The trial court granted Polk's request for remand to the Board for the taking of additional evidence, including deposition or live testimony from Polk. The facts are known to the parties so we do not recite them here. Further, because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to rule 52.8(d) of the Texas Rules of Appellate Procedure. Tex.R.App.P. 52.8(d).
In this original proceeding, the Board claims the trial court abused its discretion in granting Polk's request because Polk had not made a formal request for continuance or objected to the first hearing before the Board, chose not to testify at the hearing, and the evidence was in existence at the time of the first hearing so it is not newly discovered evidence. Also, the Board asserts Polk's request for remand was too late because it was made on the eve of trial, more than thirty-three months after the Board's decision.
The trial court's review of an administrative decision by the Board is limited to a substantial evidence review of the record presented at the administrative hearing, except in limited circumstances. Tex. Gov't Code Ann. § 2001. 174 (Vernon 2000). A party may apply for remand to present additional evidence to the administrative judge if movant establishes the evidence is material and "there were good reasons" for failing to offer the evidence at the agency hearing. Tex. Gov't Code Ann. § 2001.175(c) (Vernon 2000). To show entitlement to a remand, the movant must show he did not have an opportunity to present the evidence or the evidence is newly discovered. San Diego Indep. Sch. Dist. v. Cent. Educ. Agency, 704 S.W.2d 912, 914 (Tex.App.-Austin 1996, writ ref'd n.r.e.) (real party in interest did not establish as a matter of law that it could not have discovered evidence before agency hearing so remand improper); Texas Oil Gas Corp v. R.R. Comm'n, 575 S.W.2d 348, 351-52 (Tex.Civ.App.-Austin 1978, no writ) (errors in judgment are not good reason for remand for additional evidence); Indep. Sav. Loan Assoc. v. Gonzales County Sav. Loan Assoc., 568 S.W.2d 463, 465 (Tex Civ. App.-Austin 1978, writ ref'd n.r.e.) (remand proper to take and consider evidence not in existence at time of administrative hearing).
In the present case, Polk was represented by more than one attorney, engaged in pre-hearing discovery, did not request a continuance of the hearing on the record, appeared at the hearing, but did not testify, was given an opportunity to reopen evidence after the hearing, but did not do so, and filed post-trial motions with the agency. Even assuming, as Polk asserts, he had not received information requested from other agencies at the time of the administrative hearing and he could not present it at the hearing, this evidence is not newly discovered evidence for purposes of remand Polk knew of the evidence or the agencies that were likely to have evidence applicable to his case at the time of the first hearing. Thus, Polk failed to show "that there were good reasons" for his failure to present the evidence at the first hearing such that he is entitled to a remand to present additional evidence. We conclude the trial judge abused his discretion in granting the motion to remand
Accordingly, we conditionally grant the writ of mandamus. We order the trial judge to vacate his order of May 25, 2004 remanding this case to the agency for further proceedings. We order the trial judge to file a certified copy of his order in compliance with this order with this Court within thirty days of the date of this order. Should the trial court fail to comply the writ will issue.