Chapter § 6-36 § 61.062. Judicial Review

• Jurisdiction: United States

6-36 § 61.062. Judicial Review

(a) A party who has exhausted the party's administrative remedies under this chapter, other than a motion for rehearing, may bring a suit to appeal the order.

(b) The suit must be filed not later than the 30th day after the date the final order is mailed.

(c) The commission and any other party to the proceeding before the commission must be made defendants in the suit.

(d) The suit must be brought in the county of the claimant's residence. If the claimant is not a resident of this state, the suit must be brought in the county in this state in which the employer has its principal place of business.

(e) An appeal under this subchapter is by trial de novo with the substantial evidence rule being the standard of review in the manner as applied to an appeal from a final decision under Subtitle A, Title 4.

6-36:1 Commentary

6-36:1.1 Is Venue Mandatory and Jurisdictional, or Can It Be Waived?

An issue on venue arises occasionally when judicial review is sought. There is a conflict of authority between the Dallas and San Antonio Courts of Appeal on whether venue is mandatory and jurisdictional, or whether it can be waived.

• Kshatrya v. Texas Workforce Commission, 97 S.W.2d 825 (Tex. App.—Dallas 2003) (waivable).
• Landbase, Inc. v. Texas Employment Commission, 885 S.W.2d 499 (Tex. App.—San Antonio 1994) (adopting the mandatory approach and holding that failure to file in county of appropriate venue mandated dismissal of employer's action, not transfer).

From a technical standpoint, all parties must be served, including the TWC as well as the claimant. Failure to do so results in dismissal.

• Instrument Specialties Comp. v. Texas Employment Commission, 924 S.W.2d 420 (Tex. App.—Fort Worth 1996), writ denied.

Finally, as discussed earlier, a common law lawsuit is precluded if the Commission dismisses the complaint...