Texas State Board of Social Worker Examiners v. Katherin Youniacutt and Tammy Thompson

ACCEPTED

15-25-00064-CV

FIFTEENTH COURT OF APPEALS

AUSTIN, TEXAS

8/7/2025 3:55 PM

No. 15-25-00064-CV CHRISTOPHER A. PRINE

CLERK

IN THE FIFTEENTH COURT OF APPEALS

TEXAS STATE BOARD OF SOCIAL WORKER EXAMINERS, ET AL.,

Appellants,

v.

KATHERIN YOUNIACUTT AND TAMMY THOMPSON,

Appellees.

Appeal from the 345th Judicial District Court, Travis County

APPELLEES’ RESPONSE BRIEF

Arif Panju James T. Knight II*

(TX Bar No. 24070380) (DC Bar No. 1671382)

INSTITUTE FOR JUSTICE Andrew Ward*

816 Congress Ave., Suite 970 (NY Bar No. 5364393)

Austin, TX 78701 INSTITUTE FOR JUSTICE

(512) 480-5936 901 N. Glebe Rd., Suite 900

apanju@ij.org Arlington, VA 22203

(703) 682-9320

jknight@ij.org

award@ij.org

Counsel for Appellees *Admitted pro hac vice

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... iv

STATEMENT OF THE CASE ....................................................................... xi

STATEMENT REGARDING ORAL ARGUMENT....................................... xii

ISSUES PRESENTED ................................................................................ xiii

INTRODUCTION .......................................................................................... 1

STATEMENT OF FACTS ............................................................................... 2

I. Factual Background ............................................................................. 2

II. Procedural History ............................................................................... 7

SUMMARY OF ARGUMENT ........................................................................ 8

ARGUMENT................................................................................................. 11

I. Sovereign Immunity Is Inapplicable................................................... 11

A. The Official-Capacity Defendants Are Proper ............................. 13

B. There Are No “Basic Pleading Defects” ........................................ 14

II. Plaintiffs Properly Pleaded A Substantive Due-Course-of-Law

Claim ................................................................................................... 17

A. Plaintiffs Properly Pleaded A Liberty Interest ............................. 18

B. Plaintiffs Have A Viable Claim That The Ban Fails Patel ............ 29

C. Claims Like Plaintiffs’ Have Succeeded In Other Jurisdictions

Less Protective Of Economic Liberty ........................................... 37

III. Plaintiffs Properly Pleaded A Procedural Due-Course-of-Law

Claim .................................................................................................. 42

A. Plaintiffs’ Procedural Claim Is Recognized In Texas ................... 42

B. Section 19 Requires Individualized Process For Individualized

Deprivations Of Liberty ............................................................... 43

C. Claims Like Plaintiffs’ Routinely Succeed In Other

Jurisdictions................................................................................. 46

ii

IV. Plaintiffs Properly Pleaded An Equal Rights Claim ........................... 48

A. Plaintiffs’ Equal Rights Claim Is Recognized In Texas ................ 48

B. Claims Like Plaintiffs’ Succeed In Other Jurisdictions .................51

PRAYER ...................................................................................................... 53

CERTIFICATE OF SERVICE....................................................................... 54

CERTIFICATE OF COMPLIANCE .............................................................. 55

iii

INDEX OF AUTHORITIES

Cases

Abbott v. Mexican Am. Legislative Caucus, Tex. House of Representatives

(MALC),

647 S.W.3d 681 (Tex. 2022) ..................................................................... 13

Barletta v. Rilling,

973 F. Supp. 2d 132 (D. Conn. 2013) ......................................38, 41, 42, 52

Brewer v. Dep’t of Motor Vehicles,

93 Cal. App. 3d 358 (1979) ....................................................................... 39

Brown v. Smith,

2024 WL 2819224 (E.D. Va. June 3, 2024) ............................................. 38

Butts v. Nichols,

381 F. Supp. 573 (S.D. Iowa 1974) ........................................................... 38

Chunn v. State ex rel. Miss. Dep’t of Ins.,

156 So. 3d 884 (Miss. 2015) ................................................... 38, 40, 42, 52

City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) ............................................................... 12, 13

Cox v. Robison,

150 S.W. 1149 (Tex. 1912) ......................................................................... 21

Cronin v. O’Leary,

2001 WL 919969 (Mass. Super. Ct. Aug. 9, 2001) ............................. 39, 48

Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC,

647 S.W.3d 648 (Tex. 2022) ......................................................... 19, 20, 21

Davis v. Homeowners of Am. Ins. Co.,

700 S.W.3d 837 (Tex. App.—Dallas 2023, no pet.).................................. 16

Dent v. West Virginia,

129 U.S. 114 (1889) ................................................................................... 24

iv

Dep’t of Transp. v. Ass’n of Am. R.R.s,

575 U.S. 43 (2015) .................................................................................... 22

Eriksen v. Nelson,

708 S.W.3d 302 (Tex. App.—15th Dist. 2025, no pet.) ............................ 14

Fields v. Dep’t of Early Learning,

434 P.3d 999 (Wash. 2019) .................................................... 38, 46, 48, 47

Furst v. N.Y.C. Transit Auth.,

631 F. Supp. 1331 (E.D.N.Y. 1986) ........................................................... 38

Green v. Mo. Pac. R.R.,

523 F.2d 1290 (8th Cir. 1975) .................................................................. 42

Greene v. McElroy,

360 U.S. 474 (1959).................................................................................. 24

Gregg v. Lawson,

732 F. Supp. 849 (E.D. Tenn. 1989) .................................. 38, 47, 48, 51, 52

Haveman v. Bureau of Prof. & Occupational Affairs,

238 A.3d 567 (Pa. Commw. Ct. 2020) ..........................................40, 51, 52

Honors Acad., Inc. v. Tex. Educ. Agency,

555 S.W.3d 54 (Tex. 2018) ........................................................................17

Johnson v. Allegheny Intermediate Unit,

59 A.3d 10 (Pa. Commw. Ct. 2012) .......................................................... 39

Kindem v. City of Alameda,

502 F. Supp. 1108 (N.D. Cal. 1980) .......................................................... 38

Klumb v. Hous. Mun. Emps. Pension Sys.,

458 S.W.3d 1 (Tex. 2015) ................................................................... 14, 49

Lewis v. Ala. Dep’t of Pub. Safety,

831 F. Supp. 824 (M.D. Ala. 1993) ........................................................... 38

v

Matthews v. Eldridge,

424 U.S. 319 (1976) .................................................................................. 43

Matzen v. McLane,

659 S.W.3d 381 (Tex. 2021) ......................................................... 44, 46, 48

McFadden v. Longham,

58 Tex. 579 (1883) ................................................................................... 44

Meyer v. Nebraska,

262 U.S. 390 (1923) ................................................................................. 24

Miller v. Carter,

547 F.2d 1314 (7th Cir. 1977) .................................................................... 38

Miller v. Carter,

434 U.S. 356 (1978) .................................................................................. 38

Mosley v. Tex. Health & Hum. Servs. Comm’n,

593 S.W.3d 250 (Tex. 2019) ..................................................................... 43

Nixon v. Commonwealth,

839 A.2d 277 (Pa. 2003) .......................................................................... 39

Patel v. Tex. Dep’t of Licensing & Regulation,

469 S.W.3d 69 (Tex. 2015) ............................................................... passim

Peake v. Commonwealth,

132 A.3d 506 (Pa. Commw. Ct. 2015) ...................................................... 39

Pentco, Inc. v. Moody,

474 F. Supp. 1001 (S.D. Ohio 1978) ......................................................... 39

Perrine v. Mun. Ct.,

488 P.2d 648 (Cal. 1971) .......................................................................... 39

Rivera v. Sonnenschein,

No. 03-21-00516-CV, 2022 WL 1751685 (Tex. App.—Austin June 1, 2022,

pet. denied) .............................................................................................. 35

vi

Rosenberg Dev. Co. v. Imperial Performing Arts, Inc.,

571 S.W.3d 738 (Tex. 2019)...................................................................... 19

Sec’y of Revenue v. John’s Vending Corp.,

309 A.2d 358 (Pa. 1973) ........................................................................... 40

Shimose v. Haw. Health Sys. Corp.,

345 P.3d 145 (Haw. 2015) ........................................................................ 40

Slaughter-House Cases,

83 U.S. (16 Wall.) 36 (1873) ................................................................21, 23

Smith v. Decker,

312 S.W.2d 632 (Tex. 1958) ..................................................................... 24

Smith v. Fussenich,

440 F. Supp. 1077 (D. Conn. 1977) ..................................................... 38, 47

State v. Fisher,

52 Mo. 174 (1873) ..................................................................................... 27

State v. Loe,

692 S.W.3d 215 (Tex. 2024) ..................................................................... 35

Stout v. Grand Prairie Indep. Sch. Dist.,

733 S.W.2d 290 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) ..................... 49

Tanner v. De Sapio,

150 N.Y.S.2d 640 (N.Y. Sup. Ct. 1956) ..................................................... 40

Tex. Dep’t of Ins. v. Tex. Ass’n of Health Plans,

598 S.W.3d 417 (Tex. App.—Austin 2020, no pet.)...................................15

Tex. Parks & Wildlife Dep’t v. RW Trophy Ranch, Ltd.,

712 S.W.3d 943 (Tex. App.—15th Dist. 2025, no pet.) ............. 12, 14, 20-21

Tex. S. Univ. v. Villarreal,

620 S.W.3d 899 (Tex. 2021) ..................................................................... 17

vii

Univ. of Tex. Med. Sch. at Hous. v. Than,

901 S.W.2d 926 (Tex. 1995) ............................................................... 42, 43

Warren Cnty. Hum. Servs. v. State Civ. Serv. Comm’n,

844 A.2d 70 (Pa. Commw. Ct. 2004) ....................................................... 39

Young v. Texas Parks & Wildlife Dep’t,

No. 15-24-00052-CV, 2025 WL 1200947 (Tex. App.—15th Dist. Apr. 24,

2025, no pet. h.) .................................................................................. 20-21

Codes

22 Tex. Admin. Code § 882.3 ...................................................................... 45

Tex. Civ. Prac. & Rem. Code § 37.003 .......................................................... xi

Tex. Civ. Prac. & Rem. Code § 37.006(b) .................................................... 12

Tex. Occ. Code § 53.021 ............................................................................... 50

Tex. Occ. Code § 53.021(a) ............................................................................ 4

Tex. Occ. Code § 53.023 .................................................................... 4, 34, 38

Tex. Occ. Code § 108.051 ......................................................................... 5, 50

Tex. Occ. Code § 108.052 ................................................................... xi, 5, 50

Tex. Occ. Code § 108.052(1) .......................................................................... 5

Tex. Occ. Code § 108.052(2) ......................................................................... 5

Tex. Occ. Code § 108.052(3).......................................................................... 5

Tex. Occ. Code § 505.351(a) .......................................................................... 3

viii

Constitutional Provisions

Tex. Const. art. I, § 3 ........................................................................... passim

Tex. Const. art. I, § 19 .......................................................................... passim

Historical Sources

A New Political Platform, GALVESTON DAILY NEWS, June 11, 1874 ............. 23

Address to the Freedmen of Texas, SEMI-WEEKLY STATE GAZETTE (Austin),

Nov. 21, 1865 ............................................................................................ 25

Current Comment, EVENING TRIBUNE (Galveston), Apr. 29, 1886 .............. 26

DENISON DAILY HERALD, Dec. 22, 1878 .................................................. 25, 26

FORT WORTH STANDARD, July 8, 1875 .......................................................... 26

Hon. W.W. Lang, Definition of His Attitude in State Politics, DALLAS DAILY

HERALD, May 15, 1880 .............................................................................. 28

Injustice of the Occupation Tax, DENISON DAILY NEWS, May 19, 1876 ........ 23

Liberty, 1 ALEXANDER M. BURRILL, A LAW DICTIONARY & GLOSSARY (2d ed.

1871) ......................................................................................................... 22

Liberty, WEBSTER’S INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE:

BEING AN AUTHENTIC EDITION OF WEBSTER’S UNABRIDGED DICTIONARY,

COMPRISING THE ISSUES OF 1864, 1879, AND 1884 (Noah Porter ed.,

reference history ed. 1907) ....................................................................... 22

Lumber Inspection, GALVESTON DAILY NEWS, Apr. 9, 1875 .................... 26-27

Railways, JACKSBORO GAZETTE, Jan. 17, 1889 ............................................. 28

Tex. Att’y Gen. Op. No. 3438 (To Seller of Brandy Fruits, Aug. 24, 1875),

TEX. STATE LIBR. AND ARCHIVES COMM’N, Box 2006/216-1

[https://perma.cc/KZ2L-C8Z3]............................................................... 27

ix

The Occupation Tax, GALVESTON DAILY NEWS, May 18, 1876 ................ 23, 26

Wedlock of Labor and Capital, GALVESTON DAILY NEWS, Jan. 19, 1879 ...... 26

Whither Are We Drifting?, DAILY DEMOCRAT (Fort Worth), Aug. 15, 1877 . 26

Other Authorities

Eric Dexheimer, She beat addiction and earned a master’s in social work

to help others. A stealth Texas law said no., HOUS. CHRON. (Oct. 15,

2023),

https://www.houstonchronicle.com/politics/texas/article/masters-

degree-law-crime-18411428.php................................................................ 5

Nat’l Ass’n of Soc. Workers, Social Work History,

https://www.socialworkers.org/News/Facts/Social-Work-History......... 3

Stephen Simpson, A push to change a 2019 Texas law that bars certain

felons from becoming social workers,

TEX. TRIB. (Nov. 13, 2024),

https://www.texastribune.org/2024/11/13/texas-social-workers-ban-

lawsuit/ ...................................................................................................... 6

Tex. State Bd. of Soc. Worker Exam’rs, Self-Evaluation Report 7 (2017),

https://www.sunset.texas.gov/public/uploads/files/reports/Social%20W

orkers%20Self-Evaluation%20Report.pdf................................................. 3

Tex. Sunset Advisory Comm’n, Staff Report on the Council for Social Work

Certification 9 (1982),

https://www.sunset.texas.gov/public/uploads/files/reports/Council%20f

or%20Social%20Work%20Certification%20Staff%20Report%201982%2

068th%20Leg.pdf ...................................................................................... 3

x

STATEMENT OF THE CASE

Nature of the Case: Katherin Youniacutt and Tammy Thompson

brought this action for declaratory and

injunctive relief challenging the

constitutionality of a Texas law that

permanently bars them from becoming

licensed social workers—Tex. Occ. Code

§ 108.052 and 22 Tex. Admin. Code

§ 882.42(e)—under Article I, §§ 3 and 19 of

the Texas Constitution and the Uniform

Declaratory Judgments Act, Tex. Civ. Prac. &

Rem. Code § 37.003. They sued Defendants-

Appellants, the state agencies and officials

who enforce the challenged law.

Course of Proceedings: Defendants filed a motion to dismiss and a

plea to the jurisdiction asserting that

sovereign immunity deprived the district

court of jurisdiction to hear Plaintiffs’ claims

for purely prospective equitable relief under

the Texas Constitution.

Trial Court: 345th Judicial District Court, Travis County,

Hon. Laurie Eiserloh, presiding.

Trial Court Disposition: In an order issued April 14, 2025, the district

court denied Defendants’ motion to dismiss

and plea to the jurisdiction. Defendants then

filed this interlocutory appeal on the denial

of the plea.

xi

STATEMENT REGARDING ORAL ARGUMENT

Plaintiffs agree with Defendants that oral argument will aid the Court

in this matter. This appeal requires resolution of important questions about

the application of Texas Supreme Court precedent and the pleading

requirements when bringing a prospective constitutional challenge to a state

statute.

xii

ISSUES PRESENTED

1. Whether Texas law immunizes the state from “properly pleaded” suits

for prospective equitable relief against unconstitutional statutes and

unconstitutional official action.

2. Whether, under Patel, Plaintiffs properly pleaded their claims that a

Texas law permanently barring them from practicing social work based

solely on old and irrelevant convictions violates Article I, Sections 3

and 19 of the Texas Constitution.

xiii

INTRODUCTION

This lawsuit challenges the constitutionality of a state statute that

permanently and unreasonably deprives Plaintiffs of their right to earn an

honest living in their chosen occupation of social work. See CR.188–90. The

law permanently bans Plaintiffs from receiving social work licenses because

each has a single assault conviction from the 2000s. But in the nearly two

decades since their convictions, Plaintiffs turned their lives around, became

fully qualified, and now want to harness their personal experiences of

overcoming challenges to help others do the same.

Plaintiffs allege that the ban violates two clauses of the Texas

Constitution: Due Course of the Law of the Land and Equal Rights.

Defendants (the state agencies and officials who enforce the ban) asked the

trial court to dismiss Plaintiffs’ claims for lack of jurisdiction, but the trial

court rightly allowed the case to proceed to discovery under the Texas

Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing &

Regulation, 469 S.W.3d 69. Defendants have now filed this interlocutory

appeal, essentially asking this Court to ignore Patel. But at every turn, Patel

controls this case. Under Patel, the basis for Defendants’ arguments—

sovereign immunity—is “inapplicable” because Plaintiffs’ constitutional

claims are free from “basic pleading defects.” Id. at 75, 77. Even if the Court

1

requires more, under Patel, Plaintiffs’ claims can easily proceed to discovery.

Id. at 77.

At bottom, Defendants bank their appeal on Patel no longer being good

law. That argument rests on dicta, concurrences, and dissents rather than

controlling authority. The question here is only whether Plaintiffs met their

basic obligations in drafting a petition. Patel says they did—and although no

more is needed, close to two dozen other cases hold that analogous claims

win on the merits. That of course means that Plaintiffs can get past the

pleadings. The district court was right not to dismiss, and this Court should

affirm.

STATEMENT OF FACTS

I. Factual Background

Plaintiffs Katherin Youniacutt and Tammy Thompson are two Texas

grandmothers with a passion for helping others overcome the same

challenges they did. CR.194, 196, 200, 202–03. Many years ago, Katherin

turned to alcohol as a young woman to cope with the trauma of clerical abuse,

and Tammy used methamphetamine to deal with a difficult divorce from a

troubled marriage. CR.195, 201. As a result of their substance abuse, both

pleaded guilty to a single assault conviction in the 2000s, for which both

were sentenced to probation. CR.195, 201.

2

Katherin and Tammy then turned their lives around. They got clean.

CR.195–96, 202. They went back to school. CR.196, 202. And they looked for

a way to use their experiences to help others. CR.196, 202. Mental health

issues and substance abuse are rampant in Texas, and there is a severe

shortage of social workers who can address those problems. CR.206.

Katherin and Tammy answered the call and earned master’s degrees in social

work. CR.196, 202.

Social work—“help[ing] people in their personal and interpersonal

lives in order to achieve social improvement”—is not a new occupation; it

dates to “the late 19th century.” Nat’l Ass’n of Soc. Workers, Social Work

History;1 Tex. Sunset Advisory Comm’n, Staff Report on the Council for

Social Work Certification 9 (1982).2 And until a few decades ago, Texans

were free to do social work without state involvement at all. Tex. State Bd. of

Soc. Worker Exam’rs, Self-Evaluation Report 7 (2017) (social work

certification first created in 1982, licensure requirement first created in

1993).3 Today, however, practicing social work requires a license. Tex. Occ.

Code § 505.351(a). That requirement “is intended to ensure that persons

1 https://www.socialworkers.org/News/Facts/Social-Work-History

2 https://www.sunset.texas.gov/public/uploads/files/reports/Council%20for%20Social

%20Work%20Certification%20Staff%20Report%201982%2068th%20Leg.pdf

3 https://www.sunset.texas.gov/public/uploads/files/reports/Social%20Workers%20Se

lf-Evaluation%20Report.pdf

3

seeking social services are receiving services from a qualified practitioner.”

Tex. State Bd. of Soc. Worker Exam’rs, supra, at 29.

Katherin and Tammy were confident that their years of training

qualified them to practice, but both were concerned that their convictions

could pose a problem in getting licensed. The Texas State Board of Social

Worker Examiners allayed those fears: when Katherin and Tammy each

wrote to the Board to verify that they would be eligible to practice, the Board

confirmed that they were “not automatically disqualified” by their

convictions. CR.197, 203. In April 2019, the Board assured them that they

would receive individualized determinations of their fitness for licensure that

considered the whole person, not just their convictions. Id. Encouraged,

Katherin and Tammy finished their degrees, secured jobs, passed the

licensing exam, and applied for state licenses. CR.196–97, 202–03.

They were denied. CR.197–98, 203–04. On September 1, 2019, a new

law had gone into effect. CR.194. Before then, the Board’s response was

correct: the law allowed denial of social work licenses to applicants with

certain criminal records, but only after an individualized determination that

considered the totality of the circumstances, including specific mitigating

factors. CR.193–94; Tex. Occ. Code §§ 53.021(a), 53.023. That’s the same

system that still applies to many other licensed professions in Texas,

4

including the closely related occupations of professional counseling and

marriage and family therapy. See Tex. Occ. Code § 108.051 (not applying to

Licensed Professional Counselors or Licensed Marriage and Family

Therapists). But the new law, Tex. Occ. Code § 108.052, imposes an

automatic lifetime licensing ban on social work applicants, shutting out

anyone with certain convictions before they can reach the discretionary

system. CR.194. Those banned convictions include all felonies involving

force. Id.; Tex. Occ. Code § 108.052(2).4 Now, people with convictions like

Katherin’s and Tammy’s are permanently ineligible for social work licensure

and thus permanently banned from practicing social work in Texas. CR.194;

Tex. Occ. Code § 108.052(2).

The 2019 law “passed quietly and under the radar” without public

testimony or input from the state authorities who regulate and license social

workers. Eric Dexheimer, She beat addiction and earned a master’s in social

work to help others. A stealth Texas law said no., HOUS. CHRON. (Oct. 15,

2023).5 According to Defendant Darrel Spinks, Executive Director of

4 The other convictions resulting in lifetime bans are specified serious offenses (such as

sexual assault) committed by a licensed “health care professional” against a patient “in

the course of providing” licensed health care services. Tex. Occ. Code § 108.052(3).

Plaintiffs do not challenge the Ban with respect to those convictions, nor do they challenge

the Ban’s application to people “required to register as a sex offender.” Id. § 108.052(1).

5 https://www.houstonchronicle.com/politics/texas/article/masters-degree-law-crime-

18411428.php

5

Defendant Texas Behavioral Health Executive Council, the Council “just

stumbled across it one day.” Id. Regulators were baffled. Defendant Spinks

described his reaction to the law as “Oh, no! Surely this is just something

someone forgot,” id., and had “no more insight into the rationale for why [the

law] was passed than other members of the public.” Stephen Simpson, A

push to change a 2019 Texas law that bars certain felons from becoming

social workers, TEX. TRIB. (Nov. 13, 2024).6 Apparently, the State’s own

regulators thought the ban was a solution in search of a problem.

Katherin and Tammy’s verified allegations illustrate the oppressive

real-world effect of that “solution.” CR.208. As the many glowing

recommendation letters the Board received for each woman attest, Katherin

and Tammy are gifted, qualified social workers. CR.198, 2o4. Katherin, one

recommender wrote, “gives hope to the hopeless and provides a voice to

those who would otherwise not speak up for themselves.” CR.198. Tammy,

another told the Board, “would be an asset to th[e] profession” because of

her strong values, “life experiences,” and dedication to her practice. CR.204.

Yet the Ban ties the Board’s hands and prevents it from ever even considering

anything about Katherin and Tammy other than two old convictions that led

to probation. CR.213.

6 https://www.texastribune.org/2024/11/13/texas-social-workers-ban-lawsuit/

6

II. Procedural History

With no other way to do the work they trained to do, Katherin and

Tammy challenged the Ban, on its face and as applied to them, under Article

I, Section 19 (Due Course of the Law of the Land) and Article I, Section 3

(Equal Rights) of the Texas Constitution. CR.215–20. Defendants then filed

a plea to the jurisdiction and Rule 91a motion to dismiss. The trial court

denied both motions, concluding that Plaintiffs’ verified allegations showed

that (1) “any danger that otherwise qualified applicants . . . pose to potential

clients is not rationally possible to determine on anything other than an

individualized basis,” (2) the Ban is “irrational” because it excludes potential

social workers based “on personal experience directly relevant to” social

work, and (3) “considered as a whole, the actual, real-world effect” of the Ban

“with respect to social-work licensure—when applied to Plaintiffs and those

similarly situated—is not rationally related to the relevant government

interest.” CR.288–89. Defendants then brought this interlocutory appeal. It

is limited to the denial of their plea to the jurisdiction because parties have

no right to an immediate review of the denial of a motion to dismiss. CR.294–

97.

7

SUMMARY OF ARGUMENT

Plaintiffs brought three claims (substantive due course of law,

procedural due course of law, and equal rights) against two categories of

defendants (the agencies and the officials who enforce the Ban). The only

question at this stage is whether the trial court has jurisdiction to hear those

claims. It does. Defendants argue that Plaintiffs’ claims are so “facially

invalid” that the trial court outright lacks jurisdiction. But these claims are

not novel: Plaintiffs challenge a health-and-safety licensing restriction just

like the plaintiffs did in Patel. Those plaintiffs won at the Texas Supreme

Court. Bringing a kind of claim that can win on the merits cannot be facially

invalid.

Patel concerned the state’s licensing requirements for eyebrow

threaders—people who use a simple cotton thread to remove unwanted facial

hair. They needed an esthetician license to practice, even though that license

required hundreds of hours of training that was unrelated to health and

safety concerns with commercial threading. Id. at 73–74. The threaders sued

under Article I, Section 19 of the state constitution and alleged a violation of

their right “to earn an honest living in the occupation of one’s choice free

from unreasonable governmental interference.” Id. at 74.

8

Not only did the Court find that this was a “viable claim” “sufficient” to

establish jurisdiction and overcome sovereign immunity, id. at 77, it directed

a grant of summary judgment for the threaders. Id. at 90–92. That was

because, even though “statutes are presumed to be constitutional,” plaintiffs

can overcome that presumption when they demonstrate that either “the

statute’s purpose could not arguably be rationally related to a legitimate

governmental interest,” or, “when considered as a whole, the statute’s actual,

real-world effect as applied to the challenging party could not arguably be

rationally related to, or is so burdensome as to be oppressive in light of, the

governmental interest.” Id. at 87. And that was just what the evidence

showed: the challenged “requirement . . . to become licensed [was] not just

unreasonable or harsh, but [was] so oppressive that it violate[d] Article I,

§ 19 of the Texas Constitution.” Id. at 90. The Court was clear that the

“determination” of whether a licensing restriction violates Section 19 “will in

most instances require the reviewing court to consider the entire record,

including evidence offered by the parties.” Id. at 87.

With respect to sovereign immunity and the substantive due-course

claim, Plaintiffs here are simply invoking the framework from Patel. Under

Patel, Plaintiffs’ claims can proceed barring a “basic pleading defect.”

Sovereign immunity is “inapplicable.” This is true whether those claims are

9

brought against the agencies or the officials who enforce the Ban. (Section I,

below).

There is no “basic pleading defect.” As Patel (and many historical

sources) make clear, Plaintiffs’ right “to earn an honest living” in a lawful

occupation is protected by Article I, Section 19. (Section II-A). Plaintiffs’

verified allegations show that the Ban violates that right under the Patel test.

(Section II-B). Indeed, similar challenges in other jurisdictions have not just

gone past the pleadings but outright won—even without the enhanced

scrutiny from Patel. (Section II-C).

Plaintiffs have also properly pleaded a procedural due-course-of-law

claim. Due process requires, at minimum, a meaningful opportunity to be

heard. (Section III-A). For laws like the Ban, that means an individualized

determination of Plaintiffs’ fitness to practice social work, not merely an act

of the legislature. (Section III-B). No such determination took place here (or

could take place), so there are no basic defects to Plaintiffs’ procedural

claim—again as other jurisdictions have likewise found. (Section III-C).

Finally, Plaintiffs have properly pleaded an equal rights claim under

Article I, Section 3 of the Texas Constitution. Plaintiffs’ verified allegations

show that the Ban irrationally discriminates between Plaintiffs and other

similarly situated people. (Section IV-A). For example, the Ban does not

10

apply to other therapy professions such as professional counselors and

marriage and family therapists. The Texas Constitution requires that laws

have a rational basis for drawing such distinctions, and Plaintiffs have

alleged that no such basis exists. There is no rational difference that would

make Katherin or Tammy safe to talk to clients about how to improve their

marriages, but so unsafe as to be banned forever if they want to talk to the

same clients about how to improve other relationships. Plaintiffs have met

the pleading requirements for an equal rights claim—once again following in

the footsteps of successful claims in other jurisdictions. (Section IV-B).

The bottom line is that claims like Plaintiffs’ win. A challenge to a

licensing requirement won at the Texas Supreme Court (even though the

state invoked health and safety) just ten years ago. Challenges to professional

bans based on criminal history have won in other jurisdictions again and

again. Claims that can win on the merits do not suffer from basic defects on

the pleadings.

ARGUMENT

I. Sovereign Immunity Is Inapplicable

“[T]his appeal concerns only jurisdictional issues,” and the only

jurisdictional defect Defendants assert is sovereign immunity. Appellants’

Br. 9. Sovereign immunity does not bar suits like this one that seek forward-

11

looking relief in the form of a declaration or injunction to enforce the Texas

Constitution. “[W]hile governmental immunity generally bars suits for

retrospective monetary relief, it does not preclude prospective injunctive

remedies” in “suits against government actors who violate statutory or

constitutional provisions.” City of El Paso v. Heinrich, 284 S.W.3d 366,

368–69 (Tex. 2009) (emphases added). Accord Tex. Parks & Wildlife Dep’t

v. RW Trophy Ranch, Ltd., 712 S.W.3d 943, 962 (Tex. App.—15th Dist. 2025,

no pet.) (“Sovereign immunity does not bar a suit for equitable relief based

upon an alleged violation of the Texas Constitution[.]”). This is because the

“Declaratory Judgment Act . . . waives immunity” for prospective

constitutional challenges. Heinrich, 284 S.W.3d at 373 n.6 (citing Tex. Civ.

Prac. & Rem. Code § 37.006(b) (“UDJA”)). See also Patel, 469 S.W.3d at 76–

77 (recognizing the same). As Patel explicitly held, that waiver applies so long

as the “pleadings present[] a viable claim” in the sense of being free of “basic

pleading defects.” 469 S.W.3d at 77. Defendants do not argue that there is

any such defect, but nonetheless assert sovereign immunity on the theories

that (A) the UDJA waiver does not apply to government officials sued in their

official capacity and (B) that the UDJA waiver does not apply because

Plaintiffs’ claims are wrong on the merits. As explained below, neither theory

is correct under Texas law.

12

A. The Official-Capacity Defendants Are Proper

Defendants argue that the official capacity defendants are immune

from suit (absent an ultra vires claim that Plaintiffs did not bring).

Appellants Br. 10–12. They base this argument on the claim that the UDJA

does not waive immunity for officials, only “entities.” Id. at 12 (emphasis

omitted). Defendants are mistaken.

Constitutional claims for prospective relief are routinely brought

against official-capacity defendants. And Defendants’ first case on this point

doesn’t say otherwise: Heinrich notes that governmental entities such as

municipalities are necessary parties “[f]or claims challenging the validity of

ordinances or statutes” but does not address whether officials are also

appropriate defendants. 284 S.W.3d at 373 n.6. Their second case, MALC,

clarifies the point: “[t]he identity of the relevant governmental entity for

waiver purposes necessarily depends on the statute being challenged,” and

“case law is replete” with suits “against proper defendants like the Governor

and the Secretary of State.” Abbott v. Mexican Am. Legislative Caucus, Tex.

House of Representatives (MALC), 647 S.W.3d 681, 697 n.7, 698 (Tex.

2022). Patel, too, was a UDJA case that rejected sovereign immunity for state

licensing officials. 469 S.W.3d at 77. So the UDJA’s immunity waiver extends

to official-capacity defendants.

13

B. There Are No “Basic Pleading Defects”

Because the UDJA waives immunity for prospective constitutional

claims, Plaintiffs’ claims proceed to discovery unless there are “basic

pleading defects.” Patel, 469 S.W.3d at 77. “Basic pleading defects” means

claims that are obviously defective on their face, not merely claims that a

court might rule against. Some examples—according to Defendants’ cases—

include “merely label[ing] a cause of action and assert[ing] the existence of a

constitutional violation,” Eriksen v. Nelson, 708 S.W.3d 302, 308 (Tex.

App.—15th Dist. 2025, no pet.); bringing claims that are “conclusively

negate[d]” by “directly adverse,” “dispositive” precedent, Klumb v. Hous.

Mun. Emps. Pension Sys., 458 S.W.3d 1, 16–17 (Tex. 2015); and bringing

claims that will in “factual certainty” lead to “absurd results,” MALC,

647 S.W.3d at 703. Or when “the Constitution expressly contemplates [and

rejects] the very action that forms the basis of [a] complaint.” RW Trophy

Ranch, 712 S.W.3d at 962. By contrast (again from one of Defendants’ cases),

a claim based on a few sentences from two non-dispositive Texas Supreme

Court cases is “more than sufficient to survive a sovereign-immunity

challenge at th[e]” pleading stage. MALC, 647 S.W.3d at 700. Finding

jurisdiction does not mean the legal theory is correct, just that sovereign

immunity does not apply. Id. at 699 (“The ultimate merits determination

14

remains open for additional proceedings on remand[.]”); id. at 700 n.9

(explaining that “address[ing] only whether the claims are barred by

sovereign immunity” is not resolving the meaning of a constitutional clause).

See also Tex. Dep’t of Ins. v. Tex. Ass’n of Health Plans, 598 S.W.3d 417, 426

(Tex. App.—Austin 2020, no pet.) (“[E]ven if” a merits analysis “were to

weigh in favor of concluding that [challenged] statutes as written are

constitutional, this would not make [a plaintiff’s] constitutional UDJA claim

unviable in our jurisdictional inquiry[.]”). Claims need only be “properly

pleaded in order to be maintained, not . . . viable on their merits to negate

immunity.” Patel, 469 S.W.3d at 77 (emphasis added). The Court could

resolve 99% of this appeal up front because Defendants do not identify any

kind of basic pleading defect that would negate the UDJA’s waiver of

immunity.7

Defendants’ tack, instead, is to argue that “the pleading bar” is not “that

low;” that the standard is whether Plaintiffs’ claims are “facially invalid.”

Appellants’ Br. 10. Defendants, however, never explain what their standard

means, or how, with citations, it operates in practice, or how “facially invalid”

is any different from “containing basic pleading defects.” (The cases use both

phrases, and the obvious inference is that they mean the same thing: if a

7 The only thing left would be whether the official-capacity defendants should stay in the

caption.

15

claim contains an error as glaring as those discussed above, sovereign

immunity kicks back in, and the court lacks jurisdiction. If not, not.) The

entirety of their argument is limited to a single four-sentence paragraph with

bare, unexplained citations. Id. at 10. The rest of Defendants’ brief just

suggests that “facial invalidity” means some kind of significant merits

inquiry in which the reviewing court preemptively decides disputed

questions of law to determine whether there is jurisdiction to review the

pleadings. That would be contrary to case law, see MALC, 647 S.W.3d at 698,

700. It would neuter Patel’s clear statement that challenges to licensing

restrictions “will in most instances require the reviewing court to consider

the entire record, including evidence offered by the parties.” 469 S.W.3d at

87. And it would render pointless the recent creation of the Rule 91a Motion

to Dismiss, at least as applied to the government, because the state would

never invoke a standard requiring that claims “be foreclosed as a matter of

law in order to merit dismissal,” Davis v. Homeowners of Am. Ins. Co., 700

S.W.3d 837, 842 (Tex. App.—Dallas 2023, no pet.) (citation omitted), when

it could smuggle merits review into the pleading stage under the guise of

“jurisdiction.” So first and foremost, the Court should simply clarify that the

claims here proceed because they are not conclusory or “absurd” or

foreclosed by “dispositive” law.

16

Ultimately, however, Defendants’ standard, whatever it is, would not

make a difference. As discussed below, Plaintiffs claims are “valid” as a

matter of law under any pleading-stage understanding of that word. Even if

the Court conducts some kind of review analogous to that under federal Rule

12(b)(6), Plaintiffs’ claims easily survive dismissal.

II. Plaintiffs Properly Pleaded A Substantive Due-Course-of-

Law Claim

Plaintiffs’ Article I, Section 19 substantive due-course-of-law claim

proceeds if properly pleaded. That requires alleging (1) “a liberty or property

interest that is entitled to constitutional protection,” Honors Acad., Inc. v.

Tex. Educ. Agency, 555 S.W.3d 54, 61 (Tex. 2018), and (2) a failure by “the

government defendant [to] follow due course of law in depriving the plaintiff

of that interest[,]” Tex. S. Univ. v. Villarreal, 620 S.W.3d 899, 905 (Tex.

2021). Plaintiffs satisfied both requirements. As in Patel, Plaintiffs have

pleaded that the Ban violates their “right to earn an honest living in the

occupation of one’s choice free from unreasonable governmental

interference.” Patel, 469 S.W.3d at 74 (cleaned up). See also CR.189, 215.

Defendants acknowledge that this is the same liberty interest at issue “in

Patel.” Appellants’ Br. 15. And Plaintiffs have alleged that the Ban deprives

them of that liberty interest without due course of law because the Ban’s

“purpose” is not “arguably . . . rationally related to a legitimate governmental

17

interest” and “when considered as a whole, the statute’s actual, real-world

effect as applied to” Plaintiffs is “so burdensome as to be oppressive in light

of” that interest.” Patel, 469 S.W.3d at 87. See CR.189, 208, 217. Simply,

Plaintiffs pleaded a Patel claim and, as in Patel, it is “viable” enough to

proceed to discovery.

Defendants have two responses: that the Court should not apply Patel

at all and that the Ban, even on the pleadings, meets the test from Patel. As

explained in Section I-B above, these arguments are premature. If the Court

does reach them, however, both arguments are wrong. Moreover, challenges

to criminal history bans regularly succeed in other jurisdictions.

A. Plaintiffs Properly Pleaded A Liberty Interest

Defendants first ask the Court not to apply Patel because, they claim,

Patel only “assumed” that Section 19 protects Texans’ liberty interest in

pursuing a common occupation. Appellants’ Br. 15. That’s incorrect. And

even if it were right, history shows that Section 19 does protect that interest.

1. Plaintiffs’ Liberty Interest Is Viable Under Patel

To start, the idea Patel assumed without deciding a crucial step in its

analysis is hard to square with Patel itself. Many cases “assume without

deciding” some point or another because it makes the analysis easier. Patel

has no explicit reservation like that. Instead, the Justices spent 74 pages on

18

a majority opinion, two concurrences, and two dissents laying out the

contours of how due-course-of-law challenges work in the context of the

right to earn a living. Justice Willett’s concurrence alone has 220 footnotes.

Patel itself would be bizarre if it put all this effort into explicating and then

debating about claims that don’t exist. And the rule of party presentation

does have limits: as a matter of jurisdiction, the Patel Court could not assume

that the plaintiffs pleaded a valid liberty interest establishing jurisdiction.

Even if the parties didn’t raise the issue, the court would have been required

to take it up sua sponte. See Rosenberg Dev. Co. v. Imperial Performing

Arts, Inc., 571 S.W.3d 738, 743 (Tex. 2019) (When parties make

“assum[ptions]” regarding “immunity from suit—a matter implicating

subject-matter jurisdiction,” courts “consider[] sua sponte” whether

immunity exists.”). The much simpler reading is just that Patel took for

granted the easy point that the Due Course of Law Clause protects the right

to pursue a common occupation because that point was settled in Texas law.

Only how the Clause protected it was still disputed.

The Court’s only statement about Patel merely assumed assuming the

extent of Section 19’s protections is dicta in a short footnote in Crown

Distributing. Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647

S.W.3d 648, 653 n.16 (Tex. 2022). Crown Distributing didn’t rebut any of

19

the extensive historical record in Patel, nor did it even argue that Section 19

does not protect the right to work in a lawful occupation. The extent of what

it said is that there is an open question. All that case held is that Section 19

does not protect working in illegal occupations “long deemed inherently

vicious and harmful” because those occupations are not “common.” Id. at

655 (cleaned up).

At the risk of stating the obvious, Crown Distributing cannot possibly

mean there is a “basic pleading defect.” On the one hand, there is Patel, in

which the nine Justices debated across five opinions, and a majority of the

Court held that plaintiffs challenging a licensing restriction as a violation of

their right to engage in a lawful occupation succeeded on a Due Course of

Law claim. Defendants respond with one dictum from one footnote

suggesting that the entire Patel opinion was a mistake. (But only maybe.)

That is nowhere near enough to mean this Court lacks jurisdiction to

consider a claim under Patel. The only instances where this Court has found

a due-course claim “facially invalid” for lack of a protected interest were in

RW Trophy Ranch, 712 S.W.3d 943, and Young v. Texas Parks & Wildlife

Department, No. 15-24-00052-CV, 2025 WL 1200947 (Tex. App.—15th Dist.

Apr. 24, 2025, no pet. h.). Both cases pleaded the same property interest—a

right to breeder deer—that had been explicitly rejected in prior caselaw. RW

20

Trophy Ranch, 712 S.W.3d at 954–58; Young, 2025 WL 1200947 at *3.

Defendants fall well short of that mark: neither Crown nor any other case

has rejected the liberty interest that won in Patel and which forms the basis

of Plaintiffs’ claims here. Plaintiffs’ liberty interest is properly pleaded.

2. Plaintiffs’ Liberty Interest Is Supported By History

If the Court considers this idea anyway, Texas law and history amply

establish what Patel treated as settled law: Texans have a protected liberty

interest in pursuing a lawful occupation without unreasonable government

interference. The meaning of Section 19—including its protection of

“liberty”—was “fixed when it [wa]s adopted” in 1876. Cox v. Robison,

150 S.W. 1149, 1151 (Tex. 1912). And “[g]iven the temporal legal context,

Section 19’s substantive due course provisions undoubtedly were intended to

bear at least some burden for protecting individual rights that the United

States Supreme Court determined were not protected by the federal

Constitution” in the Slaughter-House Cases. Patel, 469 S.W.3d at 87. What

rights were those? At minimum, “the right [of people] to exercise their trade,

the business to which they have been trained and on which they depend for

the support of themselves and their families.” Slaughter-House Cases,

83 U.S. (16 Wall.) 36, 60 (1873). The “temporal legal context”—explored

below—leaves little doubt that Section 19’s protection of “liberty” was

21

understood to include the right to pursue a lawful occupation that Slaughter-

House rejected. And Texas courts “continue to” recognize the state’s

“burden” to protect that right “today.” Patel, 469 S.W.3d at 87.

a. “Liberty” included the right to pursue a lawful occupation

without unreasonable government interference

The original public meaning of the word “liberty” in Texas in 1876

encompassed the full array of ancient natural rights, including the right to

pursue a lawful occupation. Contemporary dictionaries contained entries for

“civil liberty,” which express the meaning of “liberty” in Article I, Section 19:

“The liberty of a member of society, being a man’s natural liberty, so far

restrained by human laws, (and no farther), as is necessary and expedient for

the general advantage of the public,” Liberty, 1 ALEXANDER M. BURRILL, A

LAW DICTIONARY & GLOSSARY (2d ed. 1871) (referring readers to the entry for

“civil liberty”); “Exemption from arbitrary interference with person, opinion,

or property, on the part of government under which one lives,” Liberty,

WEBSTER’S INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE: BEING AN

AUTHENTIC EDITION OF WEBSTER’S UNABRIDGED DICTIONARY, COMPRISING THE

ISSUES OF 1864, 1879, AND 1884 (Noah Porter ed., reference history ed. 1907).

See also Dep’t of Transp. v. Ass’n of Am. R.R.s, 575 U.S. 43, 75 (2015)

(Thomas, J., concurring) (stating that the “individual liberty” cherished by

“the Framers” is “not liberty in the sense of freedom from all [physical]

22

constraint,” but “liberty as described by Locke”). Learned uses of “liberty” in

popular writings also included the right to pursue a lawful occupation. See,

e.g., A New Political Platform, GALVESTON DAILY NEWS, June 11, 1874, at 2

(“This right to personal liberty no man and no community of men has any

legal power to interfere with. The right to pursue any honest calling, to

change from one place to another, to live where and how one pleases, are but

carollary [sic] to this incontestible [sic] right.”); Injustice of the Occupation

Tax, DENISON DAILY NEWS, May 19, 1876, at 2 (“Liberty and equality were

bequeathed to every American citizen by our forefathers—liberty to follow

any lawful occupation . . . .”).

Cases of the era likewise defined liberty broadly and as including the

right to pursue a lawful occupation. Both dissents in Slaughter-House, for

example, invoke this meaning. Justice Bradley: “This right to choose one’s

calling is an essential part of that liberty which it is the object of government

to protect.” Slaughter-House, 83 U.S. at 116. Justice Field: “Although the

court, in its opinion, refers to the increase in prices and deterioration in

quality of commodities which necessarily result from the grant of

monopolies, the main ground of the decision was their interference with the

liberty of the subject to pursue for his maintenance and that of his family any

23

lawful trade or employment. This liberty is assumed to be the natural right

of every Englishman.” Id. at 104.

And cases following the 1876 ratification consistently found that

“liberty” included the right to pursue a lawful occupation. See, e.g., Smith v.

Decker, 312 S.W.2d 632, 633 (Tex. 1958) (recognizing that the “right to earn

a living” is a liberty and property right); Dent v. West Virginia, 129 U.S. 114,

121 (1889) (recognizing a liberty interest in a “lawful calling, business, or

profession”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (recognizing

right to “engage in any of the common occupations of life”); Greene v.

McElroy, 360 U.S. 474, 492 (1959) (right to engage in one’s “chosen

profession”). Thus, the term “liberty” in Article I, Section 19 also included

the right to pursue a lawful occupation.

b. Ordinary Texans in 1876 would have understood their new

Constitution as protecting the right to pursue a lawful

occupation without unreasonable government interference

And the ordinary public meaning of “liberty” matched the legal term of

art. Ratification history reveals what surely comes as no surprise. Texans

respected hard work, were hard working, and thought of hard work as a

moral imperative with two facets: the duty to earn one’s daily bread by

honest, lawful effort; and the duty not to trammel upon another’s economic

liberty by resort to protectionist, oppressive, and unreasonable legislation.

24

Everywhere, the word “right” is used. Nowhere is the pursuit of a lawful

occupation characterized as a benefaction bestowed or revoked at the whim

of the legislature.

The “right to work hard for an honest living,” DENISON DAILY HERALD,

Dec. 22, 1878, at 5, was the cornerstone of Texas’ Reconstruction era identity.

When Provisional Governor Hamilton addressed Texas freedmen on their

rights in 1865, he observed that the “right to labor for an honest living” is “all

that freedom means” for any Texan:

You are free—made so by a generous, good

Government; but you must not think that freedom

means more for you than it does for others. It means

for you, that you have the right to labor for an honest

living—the right to obey the great command of God

to all men, to earn, in the sweat of their face, their

daily bread; the right to work for yourselves and

receive the full reward of your labor. This is all that

freedom means for any people.

Address to the Freedmen of Texas, SEMI-WEEKLY STATE GAZETTE (Austin),

Nov. 21, 1865, at 1. More than a right, even, Hamilton recognized the moral

“duty” of the freedmen to “employ [themselves] in useful labor for [their]

own support,” for “[n]o man is a good citizen, who does not earn a living in

some honest way.” Id. And in return for the freedmen discharging this moral

duty—a duty common to all Texans—Hamilton promised them that their

25

“rights w[ould] be protected by the laws of the country” in the same manner

as the rights of all Texans. Id.

The ratifying voters of the 1876 Constitution—the people of Texas—

understood that. As one Texan put it plainly, the “right to work hard for an

honest living is inherited by all.” DENISON DAILY HERALD, Dec. 22, 1878, at 5.

Additional pronouncements abound:

• “Every man has a right to follow any honorable occupation to make a

living. This is an inherent right, one which no legislative body can give

or take away.” FORT WORTH STANDARD, July 8, 1875, at 1.

• “[E]very man has the natural right to choose such profession or

occupation as is best suited to his taste or capacity . . . it is the duty of

the State to protect all her citizens alike in the pursuit and enjoyment

of all lawful occupations . . . .” The Occupation Tax, GALVESTON DAILY

NEWS, May 18, 1876, at 4.

• “[T]he true spirit of [the government of our fathers] is to give

protection to life, liberty, and property, and leave every man free to

make or mar his own fortune, with as few restraints on his personal

liberty as are compatible with the general good of society.” Whither Are

We Drifting?, DAILY DEMOCRAT (Fort Worth), Aug. 15, 1877, at 2

• “The worker is a free agent, and is at liberty to engage in any lawful

calling by which he can gain a livelihood, and no one can prevent him,

and into which no one can coerce him.” Wedlock of Labor and Capital,

GALVESTON DAILY NEWS, Jan. 19, 1879, at 2.

• “It is not possible to think of a more damnable act of tyranny than that

which denies to a free man the right to work for an honest living . . . .”

Current Comment, EVENING TRIBUNE (Galveston), Apr. 29, 1886, at 1.

Judges likewise recognized the right to earn an honest living in lawful

occupations. A few months before the delegates assembled in Austin, a

26

Galveston judge struck down an ordinance prohibiting anyone except the

“city Lumber Inspector” from inspecting lumber. See Lumber Inspection,

GALVESTON DAILY NEWS, Apr. 9, 1875, at 4 (reporting the case of City of

Galveston v. Gonzalez). After determining that the ordinance was ultra

vires, the judge added that “any law which unnecessarily and oppressively

restrains a citizen from engaging in any traffic or trade, following or calling,

legitimate and lawful, is void, even though passed under the specious pretext

of a public regulation.” Id. (paraphrasing State v. Fisher, 52 Mo. 174, 177

(1873)). Accordingly, the lumber-inspection law was “unconstitutional, as it

unnecessarily and oppressively restrain[ed] a citizen from exercising a

legitimate and lawful calling or trade.” Id.

State officials also recognized the right to pursue a lawful occupation.

As the Constitutional Convention was meeting down the street, Attorney

General George Clark recognized a Texan’s “common right . . . of pursuing

his own pleasure and profit in any manner he deems fit, conforming only to

the laws of society and the rights of others.” Tex. Att’y Gen. Op. No. 3438 (To

Seller of Brandy Fruits, Aug. 24, 1875), TEX. STATE LIBR. AND ARCHIVES

COMM’N, Box 2006/216-1 [https://perma.cc/KZ2L-C8Z3].

Accordingly, laws “in derogation of [this] common right,” like

occupation taxes, had to be strictly construed. Id. Only a few years later,

27

W.W. Lang, the head of the State Grange—an influential force at the

Constitutional Convention—recognized the “right” of “every man . . . to

pursue his lawful calling in his own way and to enjoy the fruits of his own

labor.” Hon. W.W. Lang, Definition of His Attitude in State Politics, DALLAS

DAILY HERALD, May 15, 1880, at 2. And in 1889, Governor Ross, who had

been a delegate to the Convention, stated that “[i]f there be any right in this

country you should protect, it is the right of labor,” for the “people are in

favor of having and enjoying all the right they are justly entitled to.”

Railways, JACKSBORO GAZETTE, Jan. 17, 1889, at 2.

Defendants (at 18–20) wade into this early history largely to suggest

that Section 19 might apply differently to health care workers. This argument

fails for two reasons. The first is that social workers were not regulated at all

circa 1876 or for 100 years thereafter, despite existing since the late 1800s.

If history is what matters, it suggests that Plaintiffs cannot be prohibited

from practice. The second reason is that historical regulation (of doctors) in

no way implies that health care professions are unprotected under Section

19. It just means that the state can regulate certain health care professionals,

so long as it abides by Patel.

28

* * *

No Texan in 1876 would have doubted that the “liberty” protected by

their new constitution included the right to pursue a lawful occupation

without unreasonable government interference. As Patel recognized, the

meaning hasn’t changed. See Patel, 469 S.W.3d at 87. Defendants—joining

dissenters from Patel—worry that this “broad construction” of Section 19’s

protections would “raise the ‘Lochner monster.’” Appellants Br. 17 (quoting

Patel, 469 S.W.3d at 138 (Hecht, C.J., dissenting)). But the high court hasn’t

adopted that dissenting view. Defendants’ arguments here—as elsewhere—

treat dissents and dicta as controlling, while ignoring the binding precedent

and weight of history that support Plaintiffs’ claims. It may be that the Texas

Supreme Court will delve more into Section 19’s history in the future. But

until then—particularly at the pleading stage—that precedent is more than

sufficient.

B. Plaintiffs Have A Viable Claim That The Ban Fails Patel

Plaintiffs’ claims are completely viable under Patel, which holds that

challenges to “economic regulation statute[s] under Section 19,” Patel,

469 S.W.3d at 87, receive “rational basis with bite.” Id. at 98 (Willett,

Lehrmann, and Devine, JJ., concurring) (describing test applied by the

majority). Plaintiffs plead valid claims when they allege that either: (1) the

29

purpose of a regulation is not arguably rationally related to a legitimate

government interest or (2) the real-world effect either is not arguably

rationally related to the government interest or is so burdensome as to be

oppressive in light of that interest. Id. at 87. Here, Plaintiffs pleaded both.

CR.207–08, 211, 216–17. These verified allegations are sufficient to state a

claim that the Ban violates Article I, Section 19.

1. Plaintiffs Alleged The Ban Fails The “Purpose” Test

The Ban’s purpose is not arguably rationally related to a legitimate

government interest. Defendants assert that the state interest at stake is “the

health and safety of individuals within Texas.” Appellants’ Br. 26. While that

is a legitimate interest in the abstract, the purpose of the Ban—barring people

who would otherwise pass discretionary review—is not rationally related to

it. Plaintiffs’ verified allegations show the disconnect:

• “[T]here is no evidence that the Lifetime Licensing Ban protects the

public from bad or dangerous social workers.” CR.206.

• Independent of the Ban, “the state has the power to conduct an

individualized determination for social work applicants and deny

licenses to people whose criminal records mean they should not be

social workers.” CR.207.

• “[T]here is no evidence that the existing individualized determination

procedure was insufficient to accomplish any legitimate government

interest.” CR.206.

• “Social work does not provide unique opportunities to commit crimes,”

particularly as compared with occupations that can be “legally

30

performed without a social work license” and without complying with

the Ban. CR.208.

• The Ban “ignores that recidivism decreases as time elapses after a

conviction” and “it takes only a few years after the end of a criminal

sentence for the chance that someone will reoffend to decrease to the

risk level that people without criminal convictions have of offending

for the first time.” CR.210.

• “[P]eople over the age of 50 without recent criminal records present no

meaningful risk of offending” CR.210.

• “People who have overcome substance addiction and other forms of

adversity are often uniquely qualified to help others beat similar

challenges because of their first-hand experience.” CR.211.

On these facts—which discovery will establish—the Ban was a solution

in search of a problem. Other provisions of Texas law already completely

served Defendants’ interest in protecting the public. CR.217. Not only do

those provisions of law better serve that government interest, but any benefit

that the Ban could have is redundant because the government had already

accomplished its goal. CR.217. Defendants’ own mystified reaction to the

Ban’s passing backs that up. See supra at 5–6. Anyone with a criminal

conviction covered by the Ban could have been denied a social work license

by the Board, regardless of the Ban, if they were unfit to practice. CR.190.

But because the Ban does not provide for individualized determinations of

fitness to practice social work, people with convictions covered by the Ban

who nonetheless are fit to practice are excluded. The Ban’s only effect is to

31

exclude otherwise-qualified aspiring social workers—like Plaintiffs—who are

barred by their criminal history, and the legislature does not have a

legitimate government interest in excluding social workers fit to practice.

CR.190. Nor does the legislature have a legitimate government interest in

solving nonexistent problems, and a law that provides no actual benefit to

the public is not rationally related to any legitimate government interest. See

Patel, 469 S.W.3d at 87.

2. Plaintiffs Alleged The Ban Fails The “Real-World Effect”

Test

Similarly, the Ban’s actual, real-world effect as applied to Plaintiffs is

not arguably rationally related to any legitimate governmental interest, and

is so burdensome as to be oppressive in light of that interest. CR.208, 217.

See Patel, 469 S.W.3d at 87. Even if the Ban were rationally related to

protecting the public in the abstract, the actual, real-world effect of the ban

is not. Again, Plaintiffs’ verified allegations establish this, and Plaintiffs are

prepared to prove it. In addition to the facts alleged above:

• “Katherin and Tammy remain fully qualified to be social workers” and

“[a]llowing Katherin and Tammy to work as social workers would not

pose any risk to the public,” but “would benefit the public.” CR.212.

• “The Lifetime Licensing Ban’s basis for excluding Katherin and Tammy

from social work licensure is not rationally related to either of their

fitness for that work.” CR.211.

32

• The Ban’s “actual, real-world effect is to permanently deprive social

workers from the license that they need to work in their chosen

occupation.” CR.207.

• “[T]he Lifetime Licensing Ban’s application to Tammy and Katherin

worsens mental health and substance abuse problems in Texas by

limiting the supply of qualified social workers.” CR.206.

• “[S]ocial work provides no unique opportunities to commit crimes

beyond occupations that Katherin and Tammy can and have legally

performed without a social work license, including occupations that

involve one-on-one contact with clients, visiting clients’ homes, and

dealing with violent episodes from clients.” CR.208.

• “People with criminal convictions who, like Katherin and Tammy, have

taken all the steps to work as social workers are not more likely to

commit crimes as social workers than in other positions.” CR.208.

• “Tammy’s conviction for an assault in 2006 and Katherin’s conviction

for an assault in 2007 do not make them any more likely than someone

without prior assault convictions to commit crimes today.” CR.210.

• “Katherin and Tammy . . . could easily have pleaded to different specific

charges and not be banned, despite committing the same criminal

conduct.” CR.211.

• “The Lifetime Licensing Ban . . . excludes many people like Katherin

and Tammy who are well-suited to work as social workers.” CR.211.

These are the same kinds of facts that led the Patel court to strike down

a threading licensing law even though it acknowledged threading “raised

public health concerns” that might justify some lesser amount of training.

Patel, 469 S.W.3d at 89. At the pleading stage, these verified allegations are

more than enough to plead a substantive due-course-of-law claim.

33

It may be that the “dividing line is not bright” between the specific

restrictions that “would yield a harsh, but constitutionally acceptable,

requirement and [those] that would not.” Patel, 469 S.W.3d at 90. Plaintiffs

acknowledge that some restrictions on applicants with criminal records—

such as individualized determinations under § 53.023—are likely

constitutional. Licensing authorities can and do distinguish between people

like Plaintiffs and people unfit to practice social work, and the state has the

power independent of the Ban to “deny licenses to people whose criminal

records mean they should not be social workers.” CR.207. But Plaintiffs’

convictions from the 2000s “do not make them any more likely than

someone without prior assault convictions to commit crimes today” and

Plaintiffs would “present no unique risk to the public if allowed to obtain

social work licenses.” CR.210.

3. Defendants’ Counterarguments Are Wrong

a. Defendants’ supposed off-ramps from Patel go nowhere. First,

Defendants suggest that Patel is inapplicable because social work is not a

“traditionally unregulated field,” “health care” having “always been

regulated.” Appellants’ Br. 24. But that doesn’t line up with even the facts in

Defendants’ own brief. Again, though social work began in the 1800s, social

work, “[u]nlike [other] health care professions,” was unregulated until the

34

1980s, post-dating similar regulations for physicians by more than a century.

Id. at 19–20. Even if social work regulations had the same tenure as those for

physicians, it’s hard to see how Plaintiffs’ claims would be “facially invalid.”

The most Defendants offer on that point is single sentence in which when the

Texas Supreme Court suggested that Patel might not apply to doctors. State

v. Loe, 692 S.W.3d 215, 236 (Tex. 2024). 8 Defendants’ only case for their

“traditionally regulated field” rewrite of Patel is an unpublished Third Court

case about lawyer licensing that nowhere mentions Patel. Appellants’ Br. 26

(citing Rivera v. Sonnenschein, No. 03-21-00516-CV, 2022 WL 1751685, at

*3 (Tex. App.—Austin June 1, 2022, pet. denied)). To the extent

Sonnenschein conflicts with Patel, Patel controls. But Sonnenschein doesn’t

even apply—its holding concerns whether a liberty interest exists to

challenge a requirement that aspiring lawyers have a degree from an

accredited law school, not what test to apply when (as here) there’s a

protected right at stake.

8 Loe goes on to hold that a restriction on providing a specific medical treatment does not

prohibit the practice of a profession, so the test from Patel does not apply to bans on

treatment. Exclusion from licensure itself, the problem here and in Patel, does prohibit

working in a field.

Defendants’ invocation of Loe is good example of their broader strategy to lead this Court

away from the binding decision in Patel through a sentence here and there in later

opinions. That is just not how precedent works. Loe did not decide that Patel is

inapplicable to doctors. A one-sentence non-decision means nothing about what

professions benefit from Patel.

35

Nor do Defendants have a good answer for how Patel itself could have

come out the way it did if its test doesn’t apply—as they claim—to any field

where “[m]ost individuals are unable to perform” the job “because they lack

the requisite education and training.” Appellants’ Br. 26. Nearly all jobs

could be described that way, including the Patel plaintiffs’ threading. And

contrary to Defendants’ implication, nothing in Patel limits its holding to

claims that “question the amount of training and education required” for a

license. Appellants’ Br. 25. Defendants cannot cabin a Supreme Court case

to its exact facts by fiat.

b. Even when Defendants purport to apply Patel’s test, their

arguments ignore it. Under Patel, the burden of the law’s real-world effect is

determined “as applied to the challenging party.” 469 S.W.3d at 87. So it’s

true that “Plaintiffs largely base their argument regarding the statute’s real-

world effect on their personal circumstances.” Appellants’ Br. 33. That’s what

Patel requires, even if Defendants would prefer to show only that the Ban “is

rational as applied to” social workers broadly. Even if the wisdom of Patel’s

test were up for debate, Defendants’ reductio ad absurdum arguments

against the test miss the mark. It’s simply wrong that, under Patel, “age limits

on participants in the alcoholic-beverage industry” would fall because they

“are burdensome for those who are young.” The test is not whether the effect

36

is—as Defendants claim—merely “oppressive” or “burdensome,” but whether

the law is burdensome “in light of[] the governmental interest.” Patel,

469 S.W.3d at 87 (emphasis added). Patel simply requires courts to look at

the evidence and determine whether the governmental interest behind a law

justifies the burden that law places on citizens. And Plaintiffs have viable

claims that the Ban fails that test.

C. Claims Like Plaintiffs’ Have Succeeded In Other

Jurisdictions Less Protective Of Economic Liberty

Not only does Patel confirm that Plaintiffs are bringing a recognized

cause of action in Texas, many cases from around the country confirm that

Plaintiffs’ claim is viable at the pleading stage (and—down the road—likely a

winning one). Courts have repeatedly struck down laws similar to the Ban,

including under the federal rational-basis test, which is explicitly weaker

than the test provided by Patel. Patel, 469 S.W.3d at 100 (Willett, Lehrmann,

and Devine, JJ., concurring) (“The test adopted today bears a passing

resemblance to ‘rational basis’-type wording, but this test is rational basis

with bite, demanding actual rationality, scrutinizing the law’s actual basis,

and applying an actual test.”). State high courts, federal district courts, and

even the Seventh Circuit have all struck down criminal-history-based bans

on the merits—including for health care, childcare, school workers, and other

37

potentially sensitive fields and including when the plaintiff was convicted of

assault. That has included bans on:

• Taxi driving, Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977) (per

curiam), aff’d, 434 U.S. 356 (1978) (armed robbery and other crimes);

• Providing childcare, Fields v. Dep’t of Early Learning, 434 P.3d 999

(Wash. 2019) (attempted robbery);

• Bail-bond work, Chunn v. State ex rel. Miss. Dep’t of Ins., 156 So. 3d

884 (Miss. 2015) (any felony);

• Substance abuse counseling, Brown v. Smith, 2024 WL 2819224 (E.D.

Va. June 3, 2024) (robbery);

• Trading precious metals, Barletta v. Rilling, 973 F. Supp. 2d 132 (D.

Conn. 2013) (any felony);

• Civil-service employment, Furst v. N.Y.C. Transit Auth., 631 F. Supp.

1331 (E.D.N.Y. 1986) (any felony); Kindem v. City of Alameda, 502 F.

Supp. 1108 (N.D. Cal. 1980) (any felony); Butts v. Nichols, 381 F. Supp.

573 (S.D. Iowa 1974) (any felony);

• Being a private detective or security guard, Smith v. Fussenich, 440 F.

Supp. 1077 (D. Conn. 1977) (any felony);

• Public wrecker contracting, Lewis v. Ala. Dep’t of Pub. Safety, 831 F.

Supp. 824 (M.D. Ala. 1993) (misdemeanors of moral turpitude); Gregg

38

v. Lawson, 732 F. Supp. 849 (E.D. Tenn. 1989) (any felony) (denying

motion to dismiss);

• Health and human services jobs with unsupervised client contact,

Cronin v. O’Leary, 2001 WL 919969 (Mass. Super. Ct. Aug. 9, 2001)

(manslaughter and armed robbery);

• Massage, Pentco, Inc. v. Moody, 474 F. Supp. 1001 (S.D. Ohio 1978)

(any two felonies within five years or any sex crime within five years);

• Eldercare, Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003) (various

crimes including armed robbery); Peake v. Commonwealth, 132 A.3d

506 (Pa. Commw. Ct. 2015) (en banc) (various crimes including

assault);

• Working as a school counselor, Johnson v. Allegheny Intermediate

Unit, 59 A.3d 10 (Pa. Commw. Ct. 2012) (en banc) (felony homicide);

• Providing child-protective services, Warren Cnty. Hum. Servs. v. State

Civ. Serv. Comm’n, 844 A.2d 70 (Pa. Commw. Ct. 2004) (aggravated

assault);

• Selling cars, Brewer v. Dep’t of Motor Vehicles, 93 Cal. App. 3d 358

(1979) (crimes of moral turpitude);

• Bookselling, Perrine v. Mun. Ct., 488 P.2d 648 (Cal. 1971) (certain

sexual and violent crimes);

39

• Cosmetology, Tanner v. De Sapio, 150 N.Y.S.2d 640 (N.Y. Sup. Ct.

1956) (grand larceny); Haveman v. Bureau of Prof. & Occupational

Affairs, 238 A.3d 567 (Pa. Commw. Ct. 2020) (en banc) (various

crimes of moral turpitude, including assault);

• Working as a radiology technician, Shimose v. Haw. Health Sys. Corp.,

345 P.3d 145 (Haw. 2015) (drug possession with intent) (statutory

ruling denying motion for summary judgment); and

• Operating a cigarette wholesaler, Sec’y of Revenue v. John’s Vending

Corp., 309 A.2d 358 (Pa. 1973) (crimes of moral turpitude) (statutory

ruling).

In nearly all these cases, the plaintiffs won outright. The bans violated

constitutional guarantees of rationality under due process, equal protection,

or both.

Consider Chunn, 156 So. 3d 884. There, Mississippi prohibited people

with any felony conviction from working as bail-bond agents. The court did

not decide whether “the State has a legitimate interest in

prohibiting some felons from engaging in this profession” because it didn’t

need to. Id. at 886. Rather, the court found the ban unconstitutional as

applied to someone with only a thirty-three-year-old felony conviction for

drug possession. Id. The state offered about as much justification as

40

Defendants do here—it can protect an “important” profession from someone

convicted of a felony, id.—but the Supreme Court of Mississippi held that

justification too weak under even the federal rational-basis test. “A person’s

God-given, constitutional liberty to engage in a profession,” the court

explained, “should not so easily be extinguished by the government.” Id. at

889. “Because the statute fail[ed] to account for the differences in particular

felonies and the relationship between particular felonies and fitness to hold

a bail-agent license; and because it ha[d] no time limits for when the felony

was committed, [the court] conclude[d] that the statute” failed rational basis

review. Id.

Or take Barletta, where a plaintiff won a challenge to the

constitutionality of a Connecticut statute prohibiting convicted felons from

holding a license to deal precious metals. Barletta, 973 F. Supp. 2d 132.

Barletta had held a license previously then, three years after it expired, spent

three years in prison for felony narcotics distribution. Id. at 135. Only four

years after his conviction he applied for a new license and was denied

because of his felony. Id. But a federal court entered judgment for him

because it found that the statute was “irrational because the ban on felons is

insufficiently related to the purpose of the statute.” Id. at 139. “To deny job

opportunities to these individuals because of some conduct which may be

41

remote in time or does not significantly bear upon the particular job

requirements is an unnecessarily harsh and unjust burden.” Id. at 139–40

(quoting Green v. Mo. Pac. R.R., 523 F.2d 1290, 1298 (8th Cir. 1975)).

In Chunn, Barletta, and other cases listed above, courts have

repeatedly determined that blanket licensing bans for criminal history that

ignore an applicant’s individualized circumstances fail even the most

government-friendly varieties of constitutional review. And Article I, Section

19 of the Texas Constitution—steeped in respect for economic liberty—

“demand[s]” an even higher threshold. Patel, 469 S.W.3d at 100 (Willett,

Lehrmann, and Devine, JJ., concurring). If plaintiffs can win cases

challenging laws just like the Ban without Section 19’s “bite,” it certainly

means Plaintiffs’ Section 19 claim against the Ban can at least survive a plea

to the jurisdiction. Plaintiffs’ substantive due-course-of-law claim is not

“foreclosed” or suffering a basic “defect.” To the contrary, Plaintiffs’ verified

allegations track with those that won on the merits in Patel and in other

jurisdictions.

III. Plaintiffs Properly Pleaded A Procedural Due-Course-of-

Law Claim

A. Plaintiffs’ Procedural Claim Is Recognized In Texas

Plaintiffs have also properly pleaded a procedural due-course-of-law

claim under Article I, Section 19. CR.215–18. See Univ. of Tex. Med. Sch. at

42

Hous. v. Than, 901 S.W.2d 926, 929–30 (Tex. 1995) (standard for reviewing

procedural due process under Tex. Const. art. I, § 19 “follow[s] contemporary

federal due process interpretations of procedural due process issues”);

accord Mosley v. Tex. Health & Hum. Servs. Comm’n, 593 S.W.3d 250, 264–

65 (Tex. 2019) (quoting Than). Plaintiffs have been permanently deprived of

the right to earn an honest living in the occupation of their choice. CR.216.

See supra Section II. Given the risk of constitutionally erroneous deprivation

of that protected liberty interest, Article I, Section 19 requires that they first

receive an opportunity to be heard in a meaningful manner by a neutral

decisionmaker. Than, 901 S.W.2d at 930 (“Due process at a minimum

requires notice and an opportunity to be heard at a meaningful time and in

a meaningful manner.” (citing Matthews v. Eldridge, 424 U.S. 319, 333

(1976)). It’s uncontested that the Ban provides no such opportunity for an

individualized determination. CR.216; Appellants’ Br. 1, 28–29. On those

facts, Plaintiffs’ procedural due-course claims are at least sufficiently viable

to proceed past the pleading stage.

B. Section 19 Requires Individualized Process For

Individualized Deprivations Of Liberty

Defendants’ chief argument that Plaintiffs’ procedural due-course-of-

law claim is “facially invalid” is that the legislature may deprive people of

“life, liberty, or property” without individualized process because the

43

“legislative process” affords all the due process required. Appellants’ Br. 36–

37. That is plainly wrong, and it would render the procedural due-course

clause a dead letter. Under that reading, no law could violate the procedural

due-course clause, and the state would be free to deprive anyone of life,

liberty, or property without notice or a hearing. Laws are not constitutional

merely because they are laws. See McFadden v. Longham, 58 Tex. 579, 585

(1883) (holding that a statute “does not become a part of ‘the law of the land’

in virtue of its enactment” and lacks the “authority of law” if contrary to

Section 19’s protection of Texans’ “right to be heard” before being deprived

of their “life, liberty, property, [or] immunities”).

Defendants’ theory rests on a highly selective reading of Matzen v.

McLane, 659 S.W.3d 381 (Tex. 2021). Contrary to Defendants’ telling,

Matzen makes it crystal clear that Texans are entitled to an individualized

hearing when deprived of their rights. Matzen concerned a sexually violent

predator who had been civilly committed following a “notice and hearing.”

Id. at 392. Later, the legislature tweaked certain aspects of the civil

commitment program that affected the man (among others) without

affording him a new hearing, so he sued. The court determined that the

“legislative process” was sufficient for the tweaks—but only because the

man’s “due-process rights were adequately protected by the [original] notice

44

and hearing mandated by the Legislature.” Id. The later change to the

program directed at “a general class of persons” who had already received

individualized process didn’t require a new hearing. Id.

Defendants’ explanation is that “an adjudicative process like an

administrative hearing . . . requires notice and a meaningful opportunity to

be heard,” while no hearing is required “in a legislative context.” Appellants’

Br. 39. Not only does this boil down to a circular argument of “hearings

require hearings,” but it falls apart when applied to Katherin and Tammy’s

circumstances. Social work applicants—even under the Ban—do have “an

adjudicative process like an administrative hearing” to determine whether

they are issued a license. See 22 Tex. Admin. Code § 882.3. The Ban doesn’t

eliminate that process, it just eliminates access to that “meaningful

opportunity to be heard” that the constitution requires by predetermining

the outcome.

Outlawing an entire profession—like smokeable hemp in Crown—may

be a “legislative process.” But state officials denying licenses to Katherin and

Tammy to practice a legal profession is no more a “legislative process” than

a criminal is convicted by the “legislative process” behind the law he broke.

When licensing authorities specifically deny an individual application

because of the Ban, that denial is not directed at “a general class of persons.”

45

An adjudicative process occurs, and it results in the denial of a specific

applicant. As in Matzen, that individualized deprivation requires an

individualized determination, at least when, as here, the risk of irrational

deprivation is unacceptably high.

C. Claims Like Plaintiffs’ Routinely Succeed In Other

Jurisdictions

Caselaw from other jurisdictions shows how laws like the Ban violate

the procedural rights of people like Plaintiffs. And these cases routinely find

that individualized determinations are required when states deny licenses

based on overbroad criminal history bans. In Fields, for example, plaintiff

Christal Fields had “attempted to snatch a purse to help pay for her drug

habit” when she was 22, leading to her conviction for attempted robbery.

Fields v. Dep’t of Early Learning, 434 P.3d 999, 1001 (Wash. 2019) . Twenty-

five years later, she had “turned her life around” and sought work at a

childcare facility. Id. But a state agency informed her she wasn’t qualified to

work there and sent her a list of “50 types of permanently disqualifying

convictions, one of which [was] ‘[r]obbery.’” Id. at 1001, 1003. The

Washington Supreme Court struck down the law barring Fields from

working and held that an “individualized determination of [Fields’s]

qualifications is required as a matter of procedural due process.” Id. at 1007.

The Fields court did not hold that the state could never disqualify someone

46

with one of the listed convictions. But there was likely no “rational basis for

doing so” in “the particular circumstances presented by Fields’s case” and a

blanket ban that ignored those circumstances without a hearing was thus

unconstitutional. Id. at 1004.

Gregg v. Lawson reached the same conclusion. 732 F. Supp. 849. In

Gregg, a Tennessee federal court denied a motion to dismiss plaintiff Jim

Gregg’s due process and equal protection challenges to a state regulation that

denied his wrecking company a place on a state wrecker list because Gregg

was a convicted felon. 732 F. Supp. at 850–51, 854–56. The court allowed

Gregg’s claims to proceed even though Gregg had been convicted of felony

aggravated assault while on the state list. Id. at 851. The court reasoned that

the “blanket” nature of the ban and “inflexible rule that permitted no

examination of the circumstances” violated due process. Id. at 854–55. 9

In another case, a Massachusetts court held that the procedural

guarantees in its state constitution required “individual hearings” to

determine whether “individuals convicted of . . . manslaughter and armed

robbery . . . pose so grave a danger and so high a risk of reoffense as to

9 As to Gregg’s equal protection claim, the court noted that “[i]f a regulation ‘fails to

recognize the obvious differences in the fitness and character of those persons with felony

records’ based on the differences in the nature of the crimes committed in relation to the

person’s fitness to engage in a particular occupation, then that regulation may violate

equal protection.” Id. at 856 (quoting Smith v. Fussenich, 440 F. Supp. 1077, 1080 (D.

Conn. 1977)) (internal citations omitted).

47

warrant a lifetime mandatory conclusive presumption of dangerousness”

that would exclude them from health and human services jobs. Cronin, 2001

WL 919969, at *7. The throughline is the same as in Matzen: individualized

deprivations require individualized determinations. And Texas provided

those determinations—until the Ban went into effect in 2019. CR.217. See

Tex. Occ. Code § 53.023.

Plaintiffs’ claims and verified allegations hew closely to the reasoning

in Fields, Gregg, and Cronin: Given the risk of erroneous deprivation,

Plaintiffs ask only for individualized determinations on whether their

“particular circumstances” should exclude them from social work. See

CR.217. That procedure allows licensing authorities to license fit applicants

and to exclude those who pose a threat to public safety. Id. Flatly banning all

applicants with convictions like Plaintiffs, without respect to individual

circumstances, is not the process the state constitution requires. Plaintiffs

have thus properly pleaded a procedural due-course-of-law claim

challenging the Ban.

IV. Plaintiffs Properly Pleaded An Equal Rights Claim

A. Plaintiffs’ Equal Rights Claim Is Recognized In Texas

Plaintiffs have also pleaded viable claims that the Ban violates the state

constitution’s guarantee of equal rights, Tex. Const. art. I, § 3. CR.218–20.

48

“[S]imilarly situated individuals must be treated equally under [a] statutory

classification unless there is a rational basis for not doing so.” Stout v. Grand

Prairie Indep. Sch. Dist., 733 S.W.2d 290, 295 (Tex. App.—Dallas 1987, writ

ref’d n.r.e.). Though disparate treatment is not “subject to courtroom fact-

finding,” it still requires a rational basis and the “challenged classification”

must “reasonably promote that purpose.” Klumb v. Hous. Mun. Emps.

Pension Sys., 458 S.W.3d 1, 13 (Tex. 2015). Plaintiffs’ verified allegations

make clear that there is no rational basis behind any of the classifications

regarding who the Ban does and does not apply to. None of the classifications

promote a legitimate purpose, and so Plaintiffs have a viable equal rights

claim under Article I, Section 3.

As Plaintiffs allege in their verified petition, the Ban treats them

differently from other similarly situated people without any rational basis

and in promotion of no legitimate purpose. CR.219–20. Social work,

professional counseling, and marriage and family therapy are similar

professions in all respects relevant to the Ban. CR.219. Plaintiffs are thus

similarly situated to applicants for professional counseling and marriage and

family therapy licenses with convictions that would be barred by the Ban

were they to instead practice social work. CR.219. These are all professions

that can involve one-on-one contact with clients—any government interest

49

regarding protecting the public would apply with equal strength to applicants

with the same convictions as Plaintiffs applying for those other licenses not

covered by the Ban. See CR.219–20. But the Ban irrationally discriminates

between Plaintiffs and such applicants for other licenses and applies only to

social work licenses. CR.219–20. Because the Ban doesn’t apply to

professional counselors or marriage and family therapists, applicants for

those licenses with criminal histories receive individualized determinations.

See Tex. Occ. Code §§ 108.052 (Ban applies to “health care professional[s]”),

108.051 (“[h]ealth care professional” excludes professional counselors and

marriage and family therapists); Tex. Occ. Code § 53.021 (licensing

authorities must conduct individualized determinations). So under Texas

law, a violent felon can provide one-on-one therapy if they trained as a

counselor, but not if they trained as a social worker.

In response, Defendants merely assert that “[t]he definition of the

work done by each profession is different” and the “Legislature may choose

to impose different requirements on different licenses.” Appellants’ Br. 45.

They then speculate that the Legislature “may have been aware of practical

reasons” to justify treating social workers differently from similar

professions. But while the rational basis bar is low, the court does not lose

50

jurisdiction over Plaintiffs’ claims based on mere speculation that there was

a purpose for the discriminatory treatment.

B. Claims Like Plaintiffs’ Succeed In Other Jurisdictions

Plaintiffs’ verified allegations concerning the Ban’s oppressive

application to Plaintiffs but not to similarly situated members of other

professions echo laws struck down by courts in other jurisdictions for

violating equal protection guarantees. Gregg10 is such a case, but there are

more.

Take Haveman, where the Pennsylvania Commonwealth Court struck

down a “good moral character” requirement that applied to would-be

cosmetologists with criminal histories but not would-be barbers. 238 A.3d

567 (Pa. Commw. Ct. 2020) (en banc). Like social workers and other types of

counselors in Texas, barbers and cosmetologists had high “similarity in the

services” they provided and the “setting” they worked in. Id. at 579. The court

found there was “no set of circumstances under which the [good moral

character requirement] would be valid” since “[s]imilarly situated licensed

professionals and individuals in close contact with salon patrons and their

belongings are not similarly restricted.” Id.

10 See supra at 47 n.9.

51

The services and setting for licensed social work are substantially

similar to those of professional counseling, marriage and family therapy, and

unlicensed case worker positions. CR.219. Like barbers and cosmetologists,

social work entails the same level of “close contact” with clients as other

forms of therapy. See CR.219. Yet only social workers are restricted by the

Ban. And as Plaintiffs have alleged, they “are no more likely to commit crimes

as social workers than as LPCs, LMFTs, case managers, or other positions at

treatment facilities.” CR.210.

Because Haveman—along with plaintiffs in cases like Barletta and

Chunn—had viable claims, Plaintiffs do too. The Barletta plaintiff won

outright, even under the federal rational-basis standard, even though his

conviction was recent and occurred after receiving his state credentials.

Plaintiffs’ claims are stronger. Plaintiffs are barred from working based on

convictions that occurred nearly two decades ago and years before they

started even their undergraduate studies in social work. But like in Gregg,

the Ban’s “blanket” and “inflexible” nature fails to consider the

“circumstances” of Plaintiffs’ convictions or the “obvious differences”

between Plaintiffs and other felons with crimes far more serious and more

related to the practice of social work. 732 F. Supp. at 854–56. And like in

Barletta, the Ban is “insufficiently related to the purpose of the statute,” and

52

Plaintiffs’ convictions do not “significantly bear upon the particular job

requirements” of social workers. Like the law in Barletta, the Ban “is an

unnecessarily harsh and unjust burden” and Plaintiffs have stated viable

claims to challenge it. 973 F. Supp. 2d at 139–40.

* * *

Again, none of this sort of analysis is needed now. The petition is free

from basic pleading defects, and that is enough. But if the Court does conduct

the kind of review that Defendants suggest, the claims here are likely

winning, and that is much more than is needed to proceed to discovery.

PRAYER

For these reasons, the district court’s judgment denying the plea to the

jurisdiction should be affirmed.

Respectfully submitted,

Dated: August 7, 2025 /s/ James T. Knight II

Arif Panju James T. Knight II*

(TX Bar No. 24070380) (D.C. Bar No. 1671382)

Institute for Justice Andrew Ward*

816 Congress Avenue, Suite 970 (NY Bar No. 5364393)

Austin, TX 78701 Institute for Justice

Tel.: (512) 480-5936 901 N. Glebe Rd., Suite 900

apanju@ij.org Arlington, VA 22203

(703) 682-9320

jknight@ij.org

award@ij.org

Counsel for Appellees *Admitted pro hac vice

53

CERTIFICATE OF SERVICE

I certify that on August 7, 2025, a true and correct copy of the foregoing

Appellees’ Response Brief was filed with the Clerk of Court and served in

compliance with the Texas Rules of Appellate Procedure via the Court’s

electronic filing manager on all counsel of record.

/s/ James T. Knight II

James T. Knight II

Counsel for Plaintiffs-Appellees

54

CERTIFICATE OF COMPLIANCE

Microsoft Word reports that the foregoing Appellees’ Response Brief

contains 11,748 words, excluding the portions of the brief exempted by Tex.

R. App. 9.4(i)(1).

/s/ James T. Knight II

James T. Knight II

Counsel for Plaintiffs-Appellees

55

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Arif Panju on behalf of Arif Panju

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Filing Code Description: Brief Requesting Oral Argument

Filing Description: Appellees' Response Brief Requesting Oral Argument

Status as of 8/7/2025 4:08 PM CST

Associated Case Party: Katherin Youniacutt and Tammy Thompson

Name BarNumber Email TimestampSubmitted Status

Arif Panju 24070380 apanju@ij.org 8/7/2025 3:55:40 PM NOT SENT

James T. Knight II jknight@ij.org 8/7/2025 3:55:40 PM NOT SENT

Associated Case Party: Texas State Board of Social Workers Examiners, et al.

Name BarNumber Email TimestampSubmitted Status

John Ramsey 24051227 John.Ramsey@oag.texas.gov 8/7/2025 3:55:40 PM NOT SENT

Beth Klusmann beth.klusmann@oag.texas.gov 8/7/2025 3:55:40 PM NOT SENT

Ali Thorburn 24125064 ali.thorburn@oag.texas.gov 8/7/2025 3:55:40 PM NOT SENT

Eric Abels Eric.Abels@oag.texas.gov 8/7/2025 3:55:40 PM NOT SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Nancy Villarreal nancy.villarreal@oag.texas.gov 8/7/2025 3:55:40 PM NOT SENT

Andrew Ward andrew.ward@ij.org 8/7/2025 3:55:40 PM NOT SENT

Ashlynn Acosta aacosta@ij.org 8/7/2025 3:55:40 PM NOT SENT

Claire Purple cpurple@ij.org 8/7/2025 3:55:40 PM NOT SENT