Texas Supreme Court: State Agency Actions Affirmatively Misleading People about Procedural Rights Can Be a Violation of Due Process

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Seal_of_the_Supreme_Court_of_Texas-300x300On May 3, 2019, the Texas Supreme Court issued a significant administrative law ruling in the case of Mosely v. Texas Health and Human Services Commission. The court held, unsurprisingly, that under the Texas Administrative Procedure Act (Texas APA), an appellant seeking review of an administrative action must first file a petition for rehearing with the Administrative Law Judge, “unless another statute plainly provides otherwise.” However, when the agency, as here, provided seriously incorrect information to the appellant about the proper procedures to follow to seek review of an adverse order, that action can, “under some circumstances,” violate the appellant’s constitutional right to due process.

In this case, the appellant, a social worker, is subject to a state law provision by which complaints of abuse, neglect or exploitation of an elderly person by a social worker may be recorded on statutorily mandated “Employee Misconduct Registry.” A complaint was filed against the petitioner, and at her request, a hearing was held and the complaint was confirmed by an administrative order. Such orders are subject to judicial review if the proper procedural steps to obtain review are taken, but the advice provided by the agency to the petitioner here said nothing about these procedural requirements. Indeed, the agency conceded that the information provided to the petitioner “contained bad information.” and was based on an erroneous agency rule—since revoked. Nevertheless, when the petitioner sought judicial of the order of the ALJ before both the trial court and the appellate court (the Third Court of Appeals sitting in Austin), the agency challenged the jurisdiction of these courts to hear this case because the petitioner never satisfied the statutory predicates for obtaining judicial review of the action. Before the appeals court, the petitioner also argued that her due process rights were violated by these actions of the state agency.

In a unanimous ruling, the Texas Supreme Court upheld the appellate court’s decision that the Texas APA requires that a motion for rehearing be filed with the ALJ before the right to seek judicial review is established, even when the operative statute (the Texas Human Resources Code) is silent about the role the APA plays. The court concludes that the Texas APA’s requires “applies generally … until the legislature says it doesn’t.” Nevertheless, for the court, the most important question to decide was whether the Commission’s misleading letter “deprived Mosely of her right to seek judicial review,” and the court concluded that the misrepresentations on the letter, largely due to the incorrect regulation included therein, effectively violated her right to procedural due process. This right is embodied in both the Texas and United States Constitutions, and the petitioner has a “liberty or property interest” that is entitled to procedural due process, specifically the right to engage in any of the common occupations of life, and that right is manifested in the presence or absence of rudiments of fair play “long known to our law” as the right to adequate notice. In the administrative law context, the court notes that the federal courts have often written about procedural due process, in particular the finding that an administrative agency’s misleading statements may offend traditional notions of fairness. The court remanded this case to the Commission to allow the petitioner an opportunity to at last file a motion for rehearing. The accompanying Concurring Opinion states that article 1, section 19 of the Texas Constitution prohibits the government from affirmatively misleading people about their procedural right and “then blaming them for not knowing better.”

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