Citing a state agency’s misrepresentation of its own procedures, the Texas Supreme Court Friday reinstated the administrative appeal of a group home employee who was about to be placed on a state misconduct register.
In a 28-page per curiam reproach to the Texas Health and Human Services Commission, Justice Jeff Brown said the agency’s disingenuous treatment of Patricia Mosley’s administrative appeal violated due process provisions of the Texas Constitution.
“We conclude that the misrepresentations in the letter, largely due to the incorrect regulation included therein, effectively deprived Mosley of her right to judicial review and violated her right to due process,” wrote Brown for the court. The opinion included a footnoted reference (edited “for decorum”) to Otter’s rebuke of Flounder in the movie Animal House (“You (messed) up. You trusted us.”).
A concurrence by Justice Jimmy Blacklock – joined by Justices John Phillip Devine and J. Brett Busby – ratcheted the court’s opinion from reproachful to scathing.
“The history of this case gives Texans little reason to trust their government agencies, but hopefully the Court’s decision today helps to reinforce their trust in the Constitution,” Blacklock wrote.
The case stems from an investigation by the Department of Family and Protective Services into an incident of “reportable conduct” involving alleged mistreatment of a resident at a group home. Although the incident itself was not at issue before the court (and not described in the opinion), it resulted in a finding by the DFPS that would result in her placement on a state-mandated “misconduct register” – a move that would, in effect, preclude her employment at any state licensed nursing home.
Under the Texas Human Resources Code, Mosley had the right to challenge the finding before an administrative law judge. She did so, but an ALJ sustained the department’s decision.
Shortly thereafter, Mosley – who had represented herself pro se during the administrative proceedings – received what was described to her as a “Final Decision and Order,” as well as a letter outlining her options before her name would be submitted to the state misconduct registry. The letter told her that she could request judicial review of the order, but only if she did so within a 30-day limit.
The letter, however, misrepresented the process. Under the Administrative Procedures Act, Mosley was required to file for an administrative re-hearing before she could request judicial review. The agency, however, maintained that Mosley had failed to file for re-hearing and, therefore, was ineligible to obtain judicial review of the career-ending order to register the allegation of misconduct.
By the time the case reached the trial stage, Mosley had obtained two Austin-based lawyers at Baker Botts through the Volunteer Legal Services program. In the interim the agency had admitted that the letter to Mosley had misrepresented administrative procedures but maintained that Mosley should have familiarized herself with the actual procedures before filing for judicial review.
Significantly, two months after challenging Mosley’s reliance on their letter, the department circulated a memorandum clarifying the rule.
The agency’s jurisdictional challenge was dismissed at trial, but the court ruled that the substance of Mosley’s registration was justified. But at the Third Court of Appeals, the court sided with the agency, ruling that because of Mosley’s failure to follow procedure, the trial court shouldn’t have heard her case in the first place.
Justice Blacklock was unmerciful in what he regarded as the government seeking judicial support for an argument that seemed to demand citizen acceptance of government incompetence and duplicity.
“So the government’s position boils down to this: Mosley should have ignored our advice and then done a better job than we did of understanding our own administrative procedures,” wrote Blacklock.
“People already have plenty of reasons not to trust their government. Apparently now the government agrees it shouldn’t be trusted. And it invites this Court to say that those who do trust the government—even to know its own administrative procedures—may forfeit their right to judicial review of the government’s deprivation of their liberty. The Court rightly rejects that invitation.”
Kevin Vickers, who paired with Baker Botts colleague Stephanie Cagniart, for oral arguments in the case in January, said he was not surprised by the outcome.
“We could tell at the oral arguments that a good number of the justices were uncomfortable with this kind of trickery by a government agency,” said Vickers. “But we were surprised at some of the language [in the opinion].”
Vickers noted that there are at least five cases pending – three of them at the Texas Supreme Court – that involve the same questions of misrepresentation.
As for Mosley, her case is remanded to the administrative process where she can receive the re-hearing she previously did not know exists.
The case is 17-0345 Patricia Mosley v. Texas Health and Human Services Commission, et al