Mosley v. Tex. Health & Human Servs. Comm'n
Decision Date | 30 March 2017 |
Docket Number | NO. 03-16-00358-CV,03-16-00358-CV |
Citation | 517 S.W.3d 346 |
Parties | Patricia MOSLEY, Appellant, Texas Health and Human Services Commission and Texas Department of Family and Protective Services, Cross-Appellants v. TEXAS HEALTH AND HUMAN SERVICES COMMISSION and Texas Department of Family and Protective Services, Appellees, Patricia Mosley, Cross-Appellee |
Court | Texas Court of Appeals |
Mr. Kevin E. Vickers, Ms. Paulina Williams, Ms. Samia R. Broadaway, Baker Botts L.L.P., 98 San Jacinto Blvd., Suite 1500, Austin, TX 78701, for appellant.
Mr. Andrew Lutostanski, Assistant Attorney General, Administrative Law Division, P. O. Box 12548, Capitol Station, Austin, TX 78711, for appellee.
Before Justices Puryear, Pemberton, and Goodwin
In this appeal we are first asked to determine the jurisdictional question of whether a party who has by order of the Texas Health and Human Services Commission (HHSC) been slated for placement on the "Employee Misconduct Registry" (EMR)1 is required to file a motion for rehearing with the agency prior to filing a suit for judicial review of the order. See Tex. Hum. Res. Code § 48.406 ( ). On the merits, we are asked to conduct a substantial-evidence review of HHSC's determination that Mosley committed "reportable conduct" through neglect when a group-home resident over whom she had sole and direct supervision swallowed batteries and was later taken to the hospital for emergency removal thereof. For the reasons outlined below, we conclude that the trial court did not have jurisdiction over Mosley's suit because she failed to timely file a motion for rehearing and therefore do not reach the merits. Accordingly, we reverse the judgment of the trial court upholding HHSC's order and render judgment granting cross-appellants' plea to the jurisdiction, dismissing Mosley's suit for lack of subject-matter jurisdiction.
DADS maintains a central registry of employees of facilities licensed by DADS who have been found to have committed acts constituting "reportable conduct." See Tex. Health & Safety Code § 253.007. This registry is called the EMR and contains information such as the employee's name, address, social security number, and the date and description of the reportable conduct. Id. The EMR is available to the public. See id. Before a "facility" (as defined in the Health and Safety Code, see id. § 253.001(4) ) may hire an employee, it must search the EMR to determine whether the applicant is listed for abuse, neglect, or exploitation of a resident, consumer, or individual receiving services from a facility and may not hire a person who is so listed. Id. § 253.008.
The Texas Department of Family and Protective Services (DFPS) has the statutory authority "to investigate the abuse, neglect, or exploitation of an elderly person or person with a disability," Tex. Hum. Res. Code § 48.001, and must forward a confirmed finding of a regulated employee's2 "reportable conduct" to DADS for inclusion in the EMR, id. § 48.403. If, after conducting an investigation, DFPS concludes that an employee committed "reportable conduct," it must provide written notice to the employee to include: a summary of its findings; a statement of the employee's right to a hearing on the findings; and a statement that if the employee fails to timely respond to the notice, the reportable-conduct finding will be recorded in the EMR. Id. § 48.404. The employee may then make a written request for a hearing on the reportable-conduct finding within 30 days of receiving the notice, and if the employee fails to timely request the hearing, DFPS "shall" issue an order approving the finding and forwarding it to DADS for inclusion in the EMR. Id. (b), (c). After an EMR hearing, which is to be conducted by an administrative law judge (ALJ) designated by DFPS, the ALJ "shall promptly issue an order regarding the occurrence of the reportable conduct." Id. § 48.405. The employee may request judicial review of an EMR finding. See id. § 48.406.
In early 2014, DFPS investigated an incident involving Mosley's care of a resident of the group home at which Mosley was working. DFPS found that Mosley had committed "reportable conduct" and recommended that she be placed on the EMR. See id. § 48.403 (). Mosley timely requested an administrative appeal hearing, which DFPS delegated to HHSC. See id. § 48.405 ( ); 40 Tex. Admin. Code § 711.1421(a) ( )("An EMR hearing will be conducted by an administrative law judge with [HHSC]"); see also Tex. Health & Safety Code §§ 253.003 –.004 ( ). HHSC sustained DFPS's determination, and Mosley then filed a suit for judicial review with the district court, see Tex. Hum. Res. Code § 48.406, which affirmed the HHSC order and denied HHSC and DFPS's plea to the jurisdiction. Mosley appealed the trial court's judgment upholding the HHSC determination, and HHSC and DFPS cross-appealed the trial court's denial of their plea to the jurisdiction.
We first address the agencies' issue on cross-appeal, contending that the trial court erred in denying their plea to the jurisdiction because, in failing to file a motion for rehearing, Mosley did not exhaust her administrative remedies, and the EMR order, therefore, did not become "appealable" under the Administrative Procedure Act (APA). See Tex. Gov't Code § 2001.145(a) (), (b) ("A decision or order that is final under Section 2001.144(a)(2), (3), or (4) is appealable."); Lindsay v. Sterling , 690 S.W.2d 560, 564 (Tex. 1985) ( ); see also Tex. Gov't Code § 311.034 ( ). We review the denial of a plea to the jurisdiction de novo. Presidio Indep. Sch. Dist. v. Scott , 309 S.W.3d 927, 929 (Tex. 2010).
As the supreme court and this Court have repeatedly held, the APA's motion-for-rehearing requirement is jurisdictional and applies generally to all suits for judicial review to challenge agency orders issued in contested cases. See Railroad Comm'n v. WBD Oil & Gas Co. , 104 S.W.3d 69, 74 (Tex. 2003) () ; Temple Indep. Sch. Dist. v. English , 896 S.W.2d 167, 169 (Tex. 1995) (); Texas Water Comm'n v. Dellana , 849 S.W.2d 808, 810 (Tex. 1993) (); Natter v. Texas Dep't of State Health Servs. , No. 03-16-00317-CV, 2016 WL 4980215, at *2 (Tex. App.—Austin Sept. 13, 2016, no pet.) (mem. op.) ("Under the APA, a timely filed motion for rehearing is a prerequisite to an appeal" and "Timely filing the motion for rehearing with the agency is part of the exhaustion requirement and is a prerequisite to invoking the district court's jurisdiction."); Marble Falls Indep. Sch. Dist. v. Scott , 275 S.W.3d 558, 565 (Tex. App.—Austin 2008, pet. denied) ().
This jurisdictional prerequisite applies even when agency-specific legislation authorizes judicial review of agency orders but does not explicitly make reference to motions for rehearing or expressly incorporate the APA. See Dellana , 849 S.W.2d at 809–10 ( ); Reed v. Department of Licensing & Regulation , 820 S.W.2d 1, 2–4 (Tex. App.—Austin 1991, no writ) (per curiam) (where specific licensing statute did not require motion for rehearing but did not conflict with APA, APA applied, including its jurisdictional requirement of motion for rehearing); see also Mednick v. Texas State Bd. of Pub. Accountancy , 933 S.W.2d 336, 338 (Tex. App.—Austin 1996, writ denied) ( ). In sum, "[u]nless otherwise provided, the APA's contested-case and judicial-review procedures apply to agency-governed proceedings." Scott , 275 S.W.3d at 563.
It is undisputed that Mosley did not file a motion for rehearing with HHSC or DFPS. Nonetheless, she contends that the trial court had jurisdiction over her suit, for several reasons: (1) section 48.406 of the Human Resources Code does not require a motion for rehearing; (2) DFPS's rules interpreting section 48.406 effective at the time of the proceedings below did not require a motion for rehearing, which reflects an agency interpretation that we must uphold absent legislative amendment to the contrary, see Texas Dep't of Protective &...
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