• Court of Appeals of Texas, Third District
  • 03-16-00222-CV
LMV-AL Ventures sought approval for a 43-room assisted-living home, with plans that called for double occupancy in 30 of the rooms. All the rooms had the same layout. The Texas Department of Aging and Disability Services ruled that the rooms met the square-footage requirements for single occupancy under Tex. Admin. Code §92.62 but not double occupancy, and approved the home for only 43 beds instead of the requested 73. The parties disputed whether to include floor space underneath a "notch" below the ceiling for an HVAC unit. LMV sued, claiming DADS exceeded its authority, improperly promulgated a rule, committed an ultra vires act, and violated LMV's due process rights. Both sides moved for summary judgment and DADS also filed a plea to the jurisdiction. The trial court granted summary judgment for DADS and both sides appealed, LMV challenging the ruling and DADS challenging the implied denial of the plea to jurisdiction. The court found that agencies generally enjoy sovereign immunity from suits but immunity is waived when a plaintiff challenges the applicability of a rule. The court also found that LMV's argument about including extra square footage challenged the rule's application, rather than its general applicability. "LMV sought a declaration of how Rule 92.62 should be applied to its facility, not whether the rule applied to the facility," the court stated. Thus, LMV did not invoke the waiver, and the trial court lacked jurisdiction to hear most of the claims, the court held. The court also found that DADS acted under the plain language of the rule and therefore did not promulgate a new rule, and that LMV failed to allege an ultra vires act. Lastly, the court found that while sovereign immunity does not protect DADS from a due-process claim, LMV failed to specify its property rights and that an expectation of double-occupancy rooms does not rise to the level of a vested property right. The court reversed summary judgment for DADS on most claims and rendered judgment dismissing the claims for lack of jurisdiction instead. The court affirmed the remainder of the order granting summary judgment for DADS. LMV-AL v. Texas Department of Aging and Disability Services, Austin Court of Appeals, Case No. 03-16-00222-CV, 4/6/17.

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