Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, October 20, 2011

Denial of Crime Victim's Compensation Claim by the AG - Judicial Review Suit

   
CRIME VICTIM'S COMPENSATION CLAIM
Tex. Code Crim. Proc. Ann. ch. 56, subch. B (Vernon 2006 & Supp. 2010)

Judicial review of denial of claim by the Attorney General is available, but subject to tight deadline.

Deadline for Judicial Review  

If the attorney general denies a crime victim’s compensation claim, the claimant may obtain judicial review of that decision. Article 56.48(a) provides in relevant part:
  
Not later than the 40th day after the attorney general renders a final decision, a claimant or victim may file with the attorney general a notice of dissatisfaction with the decision. Not later than the 40th day after the claimant or victim gives notice, the claimant or victim shall bring suit in the district court having jurisdiction.


The Texas Administrative Code contains similar language pertaining to these claims:
  
Not later than the 40th day after the victim or claimant gives the OAG notice of dissatisfaction with the OAG’s final decision from the hearing, the victim or claimant has a right to bring suit in a district court having jurisdiction over the matter

The attorney general’s position is that the 40-day period within which the claimant is to file his lawsuit starts to run when he files his first notice of dissatisfaction. Louis, on the other hand, claims that a claimant may amend his notice of dissatisfaction as many times as he likes so long as he files the amended notices within forty days after the attorney general enters a final decision. Louis maintains that the 40-day period within which a claimant is to file his lawsuit does not begin to run until the claimant files his last amended notice of dissatisfaction. If the attorney general is correct, then Louis filed his petition for judicial review late. If Louis is correct, then he timely filed his lawsuit for judicial review, and the trial court erred when it granted the attorney general’s plea to the jurisdiction.

SOURCE: EASTLAND COURT OF APPEALS - 11-09-00315-CV - 10/6/11

The trial court found that Kelvin E. Louis’s petition for judicial review of the attorney general’s decision to deny his claim as a crime victim was not timely filed. It therefore granted the attorney general’s plea to the jurisdiction. We affirm.



After a known assailant shot him in the stomach with a shotgun, Louis filed a claim for compensation as a crime victim pursuant to Tex. Code Crim. Proc. Ann. ch. 56, subch. B (Vernon 2006 & Supp. 2010).

After a hearing, the attorney general denied Louis’s claim, and on November 24, 2008, it issued its final decision. On December 22, 2008, Louis filed a "notice of dissatisfaction" as provided for in Article 56.48(a). On December 29, 2008, Louis filed an amended "notice of dissatisfaction." On February 5, 2009, Louis filed his lawsuit seeking judicial review of the hearing officer’s decision; he filed an amended petition for judicial review on April 15, 2009.

The attorney general filed a plea to the jurisdiction in which it alleged that Louis filed his lawsuit forty-five days after he filed his first notice of dissatisfaction and that, under the applicable statute, that was too late. Therefore, it argued that the trial court did not have jurisdiction. The trial court agreed with the attorney general, granted the plea to the jurisdiction, and dismissed Louis’s lawsuit.

In his appeal from that dismissal, Louis presents us with two issues. First, he argues that we should not consider an affidavit that the attorney general offered in support of its plea to the jurisdiction because it is conclusory. In his second issue, Louis maintains that the time limit for filing a suit for judicial review under Article 56.48(a) should be computed from the time that he filed his amended notice of dissatisfaction, not from the date that he filed his first one. Because we believe that Louis’s second issue is dispositive of this appeal, we will discuss it first.

[...]

We hold that, when a claimant files his initial notice of dissatisfaction, he has given notice under the statute; the 40-day period within which he must file suit begins to run at that time. Here, that would have been December 22, 2008. Louis filed his lawsuit for judicial review on February 5, 2009. Because that is a date more than forty days after Louis had given the attorney general his initial notice that he was dissatisfied with the decision, he did not timely file his lawsuit for judicial review. The trial court did not err when it granted the attorney general’s plea to the jurisdiction; it correctly dismissed Louis’s lawsuit. Louis’s second issue on appeal is overruled. Because we have overruled Louis’s second issue on appeal, we do not need to consider his first issue on appeal. See Tex. R. App. P. 47.1.

SOURCE: EASTLAND COURT OF APPEALS - 11-09-00315-CV - 10/6/11