CASH AMERICA INTERNATIONAL INC., Petitioner, v. Janola BENNETT, Respondent, 35 S.W.3d 12

Justice O’NEILL delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice ENOCH, Justice BAKER, Justice ABBOTT, Justice HANKINSON, and Justice GONZALES joined. The Texas Pawnshop Act provides that a pawnbroker must replace lost or damaged pledged goods with like-kind merchandise, subject to the Consumer Credit Commissioner’s approval. See Tex. Fin. Code § 371.167(a). We must decide whether the Act provides the sole and exclusive remedy for a complainant seeking recovery against a pawnshop for lost pledged property.

The trial court granted Cash America’s plea to the jurisdiction and dismissed the case. The court of appeals reversed and remanded, holding that the Act merely provides an alternative, not an exclusive, remedy. See 982 S.W.2d 620, 623. We hold that the Commissioner has neither exclusive nor primary jurisdiction over this dispute, and affirm the court of appeals’ judgment. I Background Janola Bennett pledged her former husband’s Masonic ring as security for a three hundred dollar loan from Cash America. She repaid the loan in full and requested the ring’s return.

Unable to return the ring because it had been stolen, Cash America offered Bennett a like-kind replacement from any of its Houston loca-, tions or a cash settlement of $2,500. Contending that the ring was worth at least $5,600, Bennett rejected both offers and sued Cash America for conversion, negligence, and gross negligence. Cash America filed a plea to the jurisdiction, claiming that the trial court lacked subject matter jurisdiction because the Texas Pawnshop Act grants the Consumer Credit Commissioner primary and exclusive jurisdiction over disputes between pledgors and pawnbrokers concerning lost goods.

See Tex. Fin.Code § 871.167(a). The trial court granted Cash America’s plea and dismissed the case for want of subject matter jurisdiction. Bennett appealed, arguing that the Texas Pawnshop Act does not require pled-gors'to pursue a remedy with the Commissioner before filing suit. The court of appeals agreed, holding that like-kind replacement under the Act provides an alternative, not an exclusive, remedy for a person with a complaint concerning lost pledged property. See 982 S.W.2d at 623. Accordingly, the appeals court reversed and remanded the case to the trial court. See id.

Cash America petitioned this Court for review. We granted Cash America’s petition to resolve an apparent conflict among the courts of appeals concerning the Commissioner’s jurisdiction over disputes between pledgors and pawnbrokers over lost goods. Compare 982 S.W.2d at 628 (holding that the Pawnshop Act does not require exhaustion of administrative remedies but merely provides the pledgor an alternative remedy), with American Pawn and Jewelry, Inc. v.

Kayal, 923 S.W.2d 670, 674-75 (Tex.App.—Corpus Christi 1996, writ denied) (holding that the Pawnshop Act gives the Commissioner primary and exclusive jurisdiction to resolve disputes between pledgors and pawnbrokers over lost pledged property). We hold that Bennett is not required to seek a remedy under the Pawnshop Act before filing suit, and that the Commissioner thus does not have exclusive jurisdiction over this dispute. We further hold that the Commissioner does not have primary jurisdiction as there is no reason to defer to the Commissioner’s expertise in this area.

Accordingly, we affirm the court of appeals’ judgment. II Exclusive Jurisdiction An agency has exclusive jurisdiction when the Legislature gives the agency alone the authority to make the initial determination in a dispute. See Kenneth Culp Davis, Administrative Law Doctrines of Exhaustion of Remedies, Ripeness for Review, and Primary Jurisdiction: 1, 28 Tex. L.Rev. 168, 171 (1949). When the Legislature vests exclusive jurisdiction in an agency, exhaustion of administrative remedies is required. See id. at 169.

Exhaustion of remedies is “designed primarily to control the timing of judicial relief from adjudicative action of an agency.” Id. at 168. Exhaustion of remedies requires a party in an administrative proceeding to await that proceeding’s completion, thereby securing all available administrative relief before seeking judicial review of the agency’s action. See Steven Baron, Judicial Review of Administrative Agency Rules: A Question of Timing, 43 Baylor L.Rev. 139, 155 n. 86 (1991). When exhaustion is required, courts may review the administrative action only at the time and in the manner designated by statute.

See Davis, supra, at 171. In this case, Cash America argues that Bennett must first exhaust her remedy under the Pawnshop Act before seeking a remedy in court. Bennett’s sole remedy under the Pawnshop Act is a like-kind replacement subject to the Commissioner’s review. Although Cash America claims that Bennett would be free to pursue other remedies in the district court if dissatisfied with the Commissioner’s decision, the Pawnshop Act limits her remedy in the district court to substantial evidence review of the Commissioner’s decision. See Tex. Fin.Code § 14.301; Tex. Gov’t Code § 2001.174.

Thus, requiring exhaustion of administrative remedies in this context would abrogate Bennett’s common-law claims and render the Pawnshop Act’s like-kind replacement scheme her exclusive remedy. Our review of the Act’s language and purposes, and the limited role the statute affords a reviewing court, indicates that this was not the Legislature’s intent. In construing a statute, our purpose is to give effect to the Legislature's intent. See Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994).

To do so, we consider the statute’s lan guage, history, and purposes and the consequences of alternate constructions. See id A statute that deprives a person of a common-law right “will not be extended beyond its plain meaning or applied to cases not clearly within its purview.” Satterfield v. Satterfield 448 S.W.2d 456, 459 (Tex.1969). Abrogating common-law claims “is disfavored and requires a clear repugnance between the common law and statutory causes of action.” Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 192 (Tex.App.-Fort Worth 1995, writ denied); see also Bruce v.

Jim Walters Homes, Inc., 943 S.W.2d 121, 122-23 (Tex.App.—San Antonio 1997, writ denied) (stating that a statute may be interpreted as abrogating a common-law principle only when its express terms or necessary implications clearly indicate the Legislature’s intent to do so); Coppedge v. Colonial Savings & Loan Ass’n, 721 S.W.2d 933, 938 (Tex.App.—Dallas 1986, writ ref'd n.r.e.) (stating that “repeal of a common-law action and remedy by implication is disfavored and requires a clear repugnance between the common-law and statutory causes of action”). When the trial court dismissed Bennett’s claims,

section 371.167(

a) provided: A pawnbroker shall replace pledged goods that are lost or damaged while in the pawnbroker’s possession with like kind merchandise. The replacement is subject to approval by the commissioner. Tex. Fin.Code § 371.167(a). This language does not indicate clearly or plainly that the Legislature intended to replace a pledgor’s common-law remedies with the exclusive remedy of a like-kind replacement. To the contrary, the statute’s language suggests that the Legislature sought to expand the protections afforded consumers, not contract them.

Imposing upon pawnbrokers a mandatory duty to replace lost or damaged property with like-kind merchandise and subjecting that replacement to the Commissioner’s approval is not inconsistent with a pledgor’s common-law' remedies. As the court of appeals recognized, the Legislature likely intended to provide a system of recourse for pawn transactions involving small amounts for which the expense of a civil suit would not be economically feasible. See 982 S.W.2d at 622; cf. Juneman v.

Franklin, 67 Tex. 411, 3 S.W. 562, 563 (1887) (holding that statute creating forcible entry and detainer action in justice of the peace court did not impliedly abrogate landlord’s common-law remedies, but created additional

summary method of regaining possession of premises); Holmans, 914 S.W.2d at 192 (holding that Payday Law provided alternative administrative remedy to enforce wage claims that would often be too small to justify the expense of a civil suit). We have consistently declined to construe statutes to deprive citizens of common-law rights ,unless the Legislature clearly expressed that intent. See Satterfield, 448 S.W.2d at 459; see also Hickman v. Finlay, 392 S.W.2d 147, 149 (Tex.Civ. App.—Austin 1965, writ ref'd). Because the language of

section 371.167(

a) does not expressly limit a pledgor’s remedy to a like-kind replacement, we conclude that the Legislature simply intended to create an alternative remedy for pledgors whose property is lost. Moreover, interpreting

section 371.167(

a) as providing an alternative rather than an exclusive remedy advances the Pawnshop Act’s fundamental purpose, which is to protect consumers by closely regulating the pawnshop industry. See Tex. Fin.Code § 371.002. The bill that added the like-kind replacement language made clear that the primary purpose of the Act is “[t]o prevent frauds, unfair practices, discriminations, impositions, and abuses of the citizens of the state....” See Act of April 27, 1981, 67th Leg., R.S., ch. 99, § 1, 1981 Tex. Gen. Laws 221, 221. Providing consumers with a variety of remedies is consistent with that purpose.

It follows then that the Act must be read to constrain pawnbrokers, not to restrict pledgors’ remedies. The limited scope of judicial review afforded under the Act is a further indication that the statutory remedy was not meant to be exclusive. Judicial review of the Commissioner’s determination is available under

section 2001.174 of the Administrative Procedure Act (APA). See Tex. Fin.Code § 14.301; Tex. Gov’t Code § 2001.174. Under the APA, a reviewing court acts in an appellate capacity and may not substitute its judgment for that of the agency. The court may reverse the agency’s decision only if the decision (1) violates a constitution or a statute, (2) exceeds the agency’s statutory authority, (3) was made through unlawful procedure, (4) is affected by an error of law, (5) is not supported by substantial evidence, or (6) is arbitrary and capricious or an abuse of discretion. See Tex. Gov’t Code § 2001.174(2).

The APA does not allow the district court, acting in an appellate capacity, to review the like-kind replacement’s adequacy or determine whether the consumer was thereby made whole. That the statute provides for limited “substantial evidence” review of the agency’s decision in no way indicates that the Legislature intended to substitute the administrative like-kind replacement scheme for common-law remedies. Recent legislative actions also strongly suggest that the Commissioner’s jurisdiction to consider this dispute was not intended to be exclusive. In its last session, the Legislature amended

section 371.167(

a) to provide: [T]he pledgor must exhaust this administrative remedy with respect to the lost or damaged pledged goods before seeking a remedy in court. If the commissioner does not approve a replacement before the 91st day after the date on which the commissioner receives a complaint from the pledgor concerning the lost or damaged good, or if the pledgor does not accept the commissioner’s determination, the pledgor may seek a remedy in court. Act of May 27, 1999, 76th Leg., R.S., ch. 1399, § 7, 1999 Tex. Gen. Laws 4724, 4726 (now codified at Tex. Fin.Code § 371.167(a)) (emphasis added).

The amendment and its legislative history demonstrate that the Legislature is not readily willing to deprive pledgors of judicial remedies. The Legislature expressly left pledgors free to “seek a remedy in court” if they are dissatisfied with the Commissioner’s determination or if the Commissioner does not make a timely determination. See id. In doing so, the Legislature specifically rejected language providing that the administrative remedy “is the pledgor’s sole and exclusive remedy with respect to the lost or damaged goods.” Tex. H.B. 1878, 76th Leg., R.S. (1999) (introduced version).

Accordingly, the earlier version of the statute, which does not expressly require exhaustion, cannot be read to give the Commissioner exclusive jurisdiction over disputes between pledgors and pawnbrokers concerning lost pledged property. In sum, nothing in the" statutory scheme indicates that the Legislature intended to replace a pledgor’s common-law remedies with the like-kind replacement remedy provided by the Pawnshop Act. Consequently, Bennett was not required to exhaust her remedies under the Act before filing suit.

Ill Primary Jurisdiction Primary jurisdiction is an administrative law doctrine that arises when a court and an agency have concurrent original jurisdiction over a dispute. See Southwestern Bell Tel. Co. v. Public Util. Comm'n, 735 S.W.2d 663, 669-70 n. 3 (Tex. App.—Austin 1987, no writ) (citing United States v. Western Pac. R.R. Co., 352 U.S. 59, 63-65, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)); Baron, supra, at 155 n. 86.

In such a case, courts must ask whether the policies underlying the primary jurisdiction doctrine require the court to defer to the agency’s expertise and responsibility to develop regulatory policy. See Southwestern Bell, 735 S.W.2d at 669-70 n. 3; Baron, supra, at 155 n. 86. The primary jurisdiction doctrine requires courts to defer to the administrative agency only when the claim’s enforcement requires the resolution of issues that are “within the special competence of an administrative agency....” Southwestern Bell, 735 S.W.2d at 669-70 n. 3 (quotingWestern Pac. R.R. Co., 352 U.S. at 63-65, 77 S.Ct. 161).

Thus, courts should ask “whether the reasons for the existence of the [primary jurisdiction] doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” Id. (emphasis removed from original). Those purposes include ensuring that administrative agencies decide, at least initially, questions that require “the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact....” Kavanaugh v. Underwriters Life Ins. Co., 231 S.W.2d 753, 755 (Tex.Civ.App.— Waco 1950, writ ref'd).

Primary jurisdiction also comes into play when “uniformity of ruling is essential to comply with the purposes of the regulatory statute administered.” Id. Because the Legislature did not clearly divest pledgors of their common-law remedies for disputes over lost pledged property, this is a case in which the agency and the courts have concurrent jurisdiction. We therefore must decide whether the Commissioner has primary jurisdiction.

In doing so, we consider whether there is a reason to defer to the Commissioner’s expertise in this area and whether uniformity of ruling concerning like-kind merchandise is essential to the Pawnshop Act’s purposes. See id. We can discern no special expertise that would be required to resolve Bennett’s common-law claims. Trial courts and juries have historically decided the value of lost or damaged property based upon the evidence before them, and the courts have developed a body of caselaw to guide their decisions. See, e.g., United Mobile Networks, L.P., v.

Deaton, 939 S.W.2d 146, 147-48 (Tex.1997); Imperial Sugar Co., Inc. v. Torrans, 604 S.W.2d 73, 74 (Tex. 1980); Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 907 (1943). Determining the value of Bennett’s lost masonic ring does not require the agency’s special knowledge, experience, or services, nor does it require resolving technical and intricate factual matters. And the Commissioner is no more qualified to make that determination than a trial court or a jury. Moreover, uniformity of ruling in this area is not essential to comply with the Act’s purposes.

See Kavanaugh, 231 S.W.2d at 755. Consequently, the primary jurisdiction doctrine does not require trial courts to defer to the Commissioner’s resolution in the first instance. IV Conclusion We hold that the Commissioner has neither exclusive nor primary jurisdiction over disputes between a pledgor and a pawnbroker concerning lost pledged property; therefore, the trial court has subject matter jurisdiction over Bennett’s claims. To the extent it holds otherwise, we disapprove of American Pawn and Jewelry, 923 S.W.2d 670. Accordingly, we affirm the court of appeals’ judgment.

Justice OWEN filed a dissenting opinion, in which Justice HECHT joined. . All citations to

section 371.167 of the Texas Finance Code are to the version in effect when the trial court dismissed Bennett’s claims. See Act of May 24, 1997, 75 th Leg., R.S., ch. 1008, § 1, 1997 Tex. Gen. Laws 3091, 3554; amended by Act of May 27, 1999, 76 th Leg., R.S., ch. 1399, § 7, 1999 Tex. Gen. Laws 4724, 4726. As explained later, the amended version of the statute does not apply to this case. . Goods are considered lost if they "are destroyed or have disappeared and are unavailable for return to the pledgor.” Tex Fin.Code. § 371.167(b). Stolen goods, therefore, are considered lost for the purpose of

section 371.167(a). . Cash America argues that the amended version of the statute should be applied retroactively to this case. We disagree. Under the Code Construction Act, which governs our construction of the Finance Code, a statute is "presumed to be prospective in its operation unless expressly made retrospective." Tex. Gov’t Code § 311.022. The Legislature did not expressly make the amendment retrospective. The authorities Cash America cites in support of its contention that this presumption does not apply here are inapposite because they either do not involve statutes at all or concern uncodified statutes.

See, respectively, Blair v. Fletcher, 849 S.W.2d 344, 345 (Tex. 1993), and Holder v. Wood, 714 S.W.2d 318, 319 (Tex. 1986). . We must, if possible, construe a statute to render it constitutional. See Proctor v. Andrews, 972 S.W.2d 729, 735 (Tex.1998); Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). Because our

interpretation of

section 371.167 protects the statute’s constitutionality, we do not address Bennett's contention that Cash America’s

interpretation of the Pawnshop Act violates the provisions of the Texas Constitution guaranteeing open courts and the right to a trial by jury.