Opinion

E. A.// Texas Department of Family and Protective Services v. Texas Department of Family and Protective Services// Cross-Appellee, E. A.

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Sep 28, 2016
Status: Published
Cited by: 0 cases
Authority: More cited than 3.2%

“The requirement of having a motion for rehearing overruled, thus exhausting administrative remedies, is a jurisdictional prerequisite to judicial review by the district court and cannot be waived by action of the parties.”

How later courts described this case

“The requirement of having a motion for rehearing overruled, thus exhausting administrative remedies, is a jurisdictional prerequisite to judicial review by the district court and cannot be waived by action of the parties.”
“A party cannot by his own conduct confer jurisdiction on a court when none exists otherwise. Even if the District misled Sullivan as she claims, her failure to exhaust her administrative remedies is fatal to her action.”
an administrative agency is a creature of the Legislature with no inherent authority of its own and may accordingly exercise only those powers the Legislature confers on it by clear and express language

Written by the judges who cited it.

The opinion

ACCEPTED

03-16-00473-CV

12961772

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/28/2016 5:29:17 PM

JEFFREY D. KYLE

CLERK

CAUSE NO. 03-16-00473-CV

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS

9/28/2016 5:29:17 PM

AUSTIN, TEXAS

JEFFREY D. KYLE

Clerk

E. A.,

Appellant/Cross-Appellee,

TEXAS DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES

Appellee/Cross-Appellant.

On Appeal from the 353rd District Court of Travis County, Texas

The Honorable Judge Tim Sulak, Presiding

BRIEF OF APPELLEE/CROSS-APPELLANT

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE

SERVICES

KEN PAXTON NICHOLE BUNKER-HENDERSON

Attorney General of Texas Chief, Administrative Law Division

JEFFREY C. MATEER KIMBERLY FUCHS

First Assistant Attorney General State Bar No. 24044140

Assistant Attorney General

BRANTLEY STARR Administrative Law Division

Deputy First Assistant Attorney General Office of the Attorney General of Texas

P.O. Box 12548, Capitol Station

JAMES E. DAVIS Austin, Texas 78711-2548

Deputy Attorney General for Civil Telephone: (512) 475-4195

Litigation Facsimile: (512) 320-0167

September 28, 2016 ATTORNEYS FOR TEXAS DEPARTMENT OF

FAMILY AND PROTECTIVE SERVICES

Oral Argument Not Requested

IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE TRIAL COURT JUDGMENT:

Plaintiff: E.A.

Defendant: Texas Department of Family and Protective Services

APPELLATE COUNSEL:

For Plaintiff/Appellant/Cross-Appellee, E.A. :

Trial Court Counsel

Morgan A. Rogers Damaris A. Chavez

State Bar No. 24080177 Bar No. 24080507

6037 Yale Street 1303 W. Harris Ave.

Houston, Texas 77076 Pasadena, Texas 77506

Telephone: (304) 741-8503 Telephone: (713) 979-4999

Facsimile: (713) 651-5538 Facsimile: (713) 472-5154

morgan.campana@gmail.com dchavez@lawofficeofdac.com

Appellate Counsel

Doug W. Ray Morgan A. Rogers

State Bar No. 16599200 State Bar No. 24080177

Ray & Wood 6037 Yale Street

2700 Bee Caves Road, Suite 200 Houston, Texas 77076

Austin, Texas 78746 Telephone: (304) 741-8503

Telephone: (52) 328-8877 Facsimile: (713) 651-5538

Facsimile: (512) 328-1156 morgan.campana@gmail.com

dray@raywoodlaw.com

For Defendant/Appellee/Cross-Appellant, Texas Department of Family and

Protective Services:

Kimberly Fuchs

State Bar No. 24044140

Assistant Attorney General

Administrative Law Division

Office of the Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711

Telephone (512) 475-4195

Facsimile: (512) 320-0167

kimberly.fuchs@texasattorneygeneral.gov

iii

REFERENCES TO THE PARTIES

Appellant/Cross-Appellee, E. A., will be referred to as “E.A.”

Appellee/Cross-Appellant, Texas Department of Family and Protective Services,

will be referred to as “the Department.”

REFERENCES TO THE RECORD

Clerk’s record will be referenced as: CR [Page]

Reporter’s record will be referenced as: RR [Page]

Administrative record will be referenced as: AR [Page]

Appendix will be referenced as: App. [Letter]

TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

References to the Parties .......................................................................................... iv

References to the Record ......................................................................................... iv

Table of Contents .......................................................................................................v

Index of Authorities ................................................................................................ vii

Statement of the Case............................................................................................... ix

Statement Regarding Oral ..........................................................................................x

Issue Presented ...........................................................................................................x

Introduction ................................................................................................................1

Statement of Facts ......................................................................................................1

Background ................................................................................................................1

The ALJ Concludes E.A. Neglected R.Z. and the Other Residents ..........................3

E.A. Fails to File a Motion for Rehearing .................................................................3

The District Court Proceedings ..................................................................................3

Standard of Review ....................................................................................................3

Summary of the Argument.........................................................................................4

Argument....................................................................................................................4

I. The trial court lacked jurisdiction over E.A.’s suit for judicial review

brought under the APA because she failed to file a motion for rehearing ...... 4

A. Because the APA’s contested-case and judicial-review procedures

apply, a motion for rehearing was required .......................................... 4

B. Because E.A. failed to file a motion for rehearing, the trial court

lacked jurisdiction. The agency order is not appealable ....................... 8

C. Rule 711.1431(b) affects when an order is final, not whether it is

appealable. Rule 711.1431(b) did not expressly relieve E.A. from

filing a motion for rehearing nor could it ............................................ 10

Conclusion and Prayer .............................................................................................14

Certificate of Compliance ........................................................................................15

Certificate of Service ...............................................................................................17

Appendices ...............................................................................................................15

INDEX OF AUTHORITIES

CASES

Heat Energy Advanced Tech., Inc. v. West Dallas Coal. for Envtl. Justice,

962 S.W.2d 288 (Tex. App.—Austin 1998, pet. denied) ..........................................7

Hinojosa v. Tarrant Cty.,

355 S.W.3d 812 (Tex. App.—Amarillo 2011, no pet.) ...........................................12

Jones v. State Bd. of Educator Certification,

315 S.W.3d 237 (Tex. App.—Austin 2010, pet. denied) ........................................12

Lindsay v. Sterling, 690 S.W.2d 560

(Tex. 1985) ...........................................................................................................8, 13

Marble Falls Indep. Sch. Dist. v. Scott,

275 S.W.3d 558 (Tex. App.—Austin 2008, pet. denied) ..........................................4

Mednick v. Tex. State Bd. of Pub. Accountancy,

933 S.W.2d 336 (Tex. App.—Austin 1996, writ denied ...........................................7

Reed v. State Dep’t of Licensing & Regulation,

820 S.W.2d 1 (Tex. App.—Austin 1991, no writ) ....................................................7

State Office of Pub. Util. Council v. Pub. Util. Comm’n of Tex.,

131 S.W.3d 314 (Tex. App.—Austin 2004, pet. denied) ........................................11

Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) ......................................................................................3

Tex. Nat. Res. Conservation Comm'n v. IT-Davy,

74 S.W. 3d 849 (Tex. 2002) .....................................................................................12

Tex. Nat. Res. Conservation Comm’n v. Lakeshore Util. Co.,

164 S.W.3d 368 (Tex. 2005) ....................................................................................13

Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan,

51 S.W.3d 293 (Tex. 2001) ......................................................................................13

vii

STATUTES

Tex. Educ. Code § 21.256(b ......................................................................................5

Tex. Educ. Code § 21.3041(b) ...................................................................................7

Tex. Gov.t Code § 311.034 ......................................................................... 10, 12, 13

Tex. Gov’t Code § 2001.003......................................................................................5

Tex. Gov’t Code § 2001.144 (2014) ......................................................................5, 9

Tex. Gov’t Code § 2001.144(a) ...........................................................................6, 11

Tex. Gov’t Code § 2001.144(b) .................................................................................9

Tex. Gov’t Code § 2001.145......................................................................... 5, 10, 12

Tex. Gov’t Code § 2001.145(b) .................................................................... 6, 10, 13

Tex. Gov’t Code § 2001.171......................................................................................6

Tex. Gov’t Code § 2001.176(a) .................................................................................6

Tex. Hum. Res. Code § 48.405 ..............................................................................4, 5

Tex. Hum. Res. Code § 48.406 ..................................................................................7

Tex. Hum Res. Code § 48.406(b) ..........................................................................4, 5

Tex. Hum. Res. Code § 48.406(c) .............................................................................4

Tex. Hum. Res. Code § 48.406(c)(1) .........................................................................6

RULE

40 Tex. Admin. Code § 711.1431(b) (2015) ...........................................................11

viii

STATEMENT OF THE CASE

Nature of the case: This is an administrative appeal filed pursuant to

40 Texas Administrative Code § 711.1431 and

Texas Government Code Chapter 2001

Subchapter G. Plaintiff, E.A., filed suit

challenging a Texas Health and Human Services

Commission order affirming Texas Department of

Family and Protective Services’ decision to

submit her name to the Employee Misconduct

Registry.

Trial court: The Honorable Tim Sulak, presiding over the

353rd Judicial District Court of Travis County,

Texas.

Trial court disposition: The trial court denied the Department’s plea to the

jurisdiction and affirmed the Department’s

decision and order upholding the determination of

reportable conduct and the subsequent placement

of E.A.’s name in the Employee Misconduct

Registry. CR 1234.

STATEMENT REGARDING ORAL

The Department does not request oral argument in this appeal, as the issues in

this case have previously been addressed by the Courts. However, the Department

would like the opportunity to present oral argument if the Court otherwise

determines that oral argument is necessary to help clarify the issues before the Court.

ISSUE PRESENTED

1. Whether the district court had subject-matter jurisdiction over E.A.’s suit for

judicial review brought under the Administrative Procedure Act, given that

she failed to file a motion for rehearing?

CAUSE NO. 03-16-00473-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

E. A.,

Appellant/Cross-Appellee,

TEXAS DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES

Appellee/Cross-Appellant.

On Appeal from the 353rd District Court of Travis County, Texas

The Honorable Judge Tim Sulak, Presiding

BRIEF OF APPELLEE/CROSS-APPELLANT

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE

SERVICES

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

INTRODUCTION

Although the trial court affirmed the agency decision in the underlying matter,

the Court acted without jurisdiction in doing so. Because E.A. failed to file a motion

for rehearing, as required by the Administrative Procedure Act (“APA”), the

Department’s Plea to the Jurisdiction was incorrectly denied by the trial court.

STATEMENT OF FACTS

Background

E.A., Plaintiff, is a direct care staff with Four J’s Community Living Center,

where she was assigned to Stockwell #3. AR 84. In June 2012, there were three

residents of Stockwell #3: R.Z., P.Z., and R.L., each with his own significant

challenges and disabilities.

R.Z. has been diagnosed with mental retardation, autism, and pica. AR 67.

He is non-verbal and has history of eloping from the group home. AR 67, 100-102.

R.L. has been diagnosed with anemia, severe mental retardation, and cerebral

palsy. AR 67, 102. He also has a history of recurrent aspiration pneumonia,

intermittent explosive disorder, and seizure disorder. Id. He is fed through a feeding

tube, and has a history of pulling it out. AR 68, 102-105. R.L. is non-ambulatory

and uses a wheelchair. AR 68.

P.Z. is blind and has been diagnosed with profound mental retardation and

pervasive developmental disorder. AR 68, 106. He has a history of mood instability

and has behavioral issues such as hitting walls. AR 68. He has difficulty following

simple verbal commands. AR 68.

On June 2, 2012, E.A. came to work at 4:00 p.m. after working multiple

previous shifts. CR 44. At 9:30 that evening, E.A. called G.U. and asked him to fill

in for her while she left the home. AR 82. G.U. had not had special training to work

in the home and had not ever worked there. AR 67, 82, 87, 91. E.A. did not tell

G.U. that any of the residents required special supervision or that R.Z. had a

tendency to leave the house. AR 82. G.U. had only worked for the company for

two weeks and had immigrated to the United States two months prior. Id. G.U. was

not on the clock when he arrived at the house. Id.

E.A.’s supervisor did not receive a call from her. AR 89. E.A. admits that

she did not attempt to call any other supervisors, and instead called a staff member.

CR 44-45. It was not acceptable to call other staff rather than calling a supervisor.

There was a paper hanging on the wall of the residence with staff contact

information, and E.A. could have contacted any other supervisor. AR 95.

While E.A. was away from the house, one of the residents, R.Z., wandered

out of the home, and police and the Harris County Sherriff’s Department responded

to reports of a male standing in the street in his boxers. AR 67, 95. This male was

identified as R.Z. Id. When the sheriff arrived, no staff members were present in

the residence. AR 68, 69, 75, 91. When law enforcement came in to investigate,

they found another resident, R.L., with his arms tied to the bed. AR 75, 87, 89, 95.

Being strapped to the bed was not part of R.L.’s care plan. AR 87, 89, 102-105, 120.

According to two staff members, E.A. admitted to tying R.L.’s arms to the bed. AR

67, 91.

The ALJ Concludes E.A. Neglected R.Z. and the Other Residents

In May 2013, a Health and Human Services Commission (HHSC)

administrative law judge (ALJ) issued a final order finding that E.A. committed

neglect, that the neglect constituted reportable conduct, and that therefore E.A.’s

name should be entered in the employee misconduct registry (EMR). AR 43.

E.A. Fails to File a Motion for Rehearing

E.A. did not file a motion for rehearing but instead directly sought judicial

review of the ALJ’s final order pursuant to the Administrative Procedure Act (APA).

See AR (no motion for rehearing in administrative record); CR 4-9 (failing to allege

that she timely filed a motion for rehearing before seeking judicial review).

The District Court Proceedings

Despite not filing a Motion for Rehearing, E.A. filed a petition in district

court. CR 4. The Department filed a plea to the jurisdiction. CR 1045-1083. After

a hearing on both the plea and the merits of the case, the trial court denied the plea

to the jurisdiction but affirmed the Department’s decision on the merits. CR 1234.

STANDARD OF REVIEW

A trial court’s ruling on a jurisdictional plea is reviewed de novo. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

SUMMARY OF THE ARGUMENT

The APA’s contested-case and judicial-review procedures apply to employee

misconduct registry cases. Under the APA, a motion for rehearing is a jurisdictional

prerequisite to judicial review. It is undisputed that E.A. failed to file a motion for

rehearing, so the trial court erred when it denied the Department’s plea to the

jurisdiction and failed to dismiss this claim for lack of subject-matter jurisdiction.

ARGUMENT

I. The trial court lacked jurisdiction over E.A.’s suit for judicial review

brought under the APA because she failed to file a motion for rehearing.

A. Because the APA’s contested-case and judicial-review procedures

apply, a motion for rehearing was required.

The APA’s contested-case and judicial-review procedures apply to employee

misconduct registry (EMR) cases. See Tex. Hum. Res. Code §§ 48.405 (providing

contested-case hearing), .406(b) (providing order becomes final “as provided by

Chapter 2001, Government Code”), .406(c) (providing judicial review “is instituted

by filing a petition as provided by Subchapter G, Chapter 2001, Government Code”);

App. B.

The APA’s contested-case procedures apply here. Unless otherwise provided,

the APA’s contested-case and judicial-review procedures apply to agency-governed

proceedings. See Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 566-67

(Tex. App.—Austin 2008, pet. denied). Here, section 48.405 of the Human

Resources Code provides an employee the right to a contested-case hearing, and

does not exclude the hearing from being subject to the APA. See Tex. Hum. Res.

Code § 48.405 (right to hearing); App. B; Tex. Gov’t Code § 2001.003 (defining a

contested case as a proceeding in which legal rights, duties, or privileges of a party

are determined by a state agency after opportunity for adjudicative hearing); cf. Tex.

Educ. Code § 21.256(b) (example of statute excluding hearing from APA by stating

hearing “is not subject to Chapter 2001, Government Code”). Thus, the APA’s

contested-case procedures apply here. Therefore, subchapter F of the APA (titled

“Contested Cases: Final Decisions and Orders; Motions for Rehearing”) applies.

Specifically relevant are section 2001.144, which sets the date on which a decision

becomes final, and section 2001.145, which makes a motion for rehearing a

prerequisite to judicial review. See Tex. Gov’t Code §§ 2001.144, .145; App. B.

The APA’s judicial-review procedures also apply here. Section 48.406(b) of

the Human Resources Code provides that “[n]ot later than the 30th day after the

date the decision becomes final as provided by Chapter 2001, Government Code,

the employee may file a petition for judicial review contesting the finding of the

reportable conduct.” Tex. Hum. Res. Code § 48.406(b) (emphasis added); App. B.

Thus, section 48.406(b) makes EMR orders final as provided by the APA, which, in

turn, sets when orders become final through section 2001.144 of the APA. See Tex.

Gov’t Code § 2001.144; App. B. Applicable here is section 2001.144(a)(1), which

provides that a decision in a contested case is final “if a motion for rehearing is not

filed on time, on the expiration of the period for filing a motion for rehearing.” Tex.

Gov’t Code § 2001.144(a); App. B. Section 48.406(b) of the Human Resources Code

specifically contemplates a motion for rehearing as evidenced by the fact that a

motion for rehearing is necessary to determine when an EMR order is final.

Additionally, section 48.406(c) (1) of the Human Resources Code provides

that judicial review of an EMR order “is instituted by filing a petition as provided

by Subchapter G, Chapter 2001, Government Code.” Tex. Hum. Res. Code

§ 48.406(c)(1); App. B. Subchapter G of the APA in turn provides:

Sec. 2001.176. Petition Initiating Judicial Review.

(a) A person initiates judicial review in a contested case by filing a

petition not later than the 30th day after the date on which the decision

that is the subject of complaint is final and appealable.

Tex. Gov’t Code § 2001.176(a) (emphasis added); App. B. Section 48.406(c)(1)

also contemplates a motion for rehearing requirement because the APA’s judicial-

review procedures require not only that the order be final but also that the order be

appealable. See Tex. Gov’t Code §§ 2001.171 (noting that person who has

exhausted all administrative remedies available within a state agency may seek

judicial review), 2001.145(b) (decision that becomes final upon expiration of time

for rehearing when no motion for rehearing is filed is not appealable); App. B.

The legislature did not exempt EMR cases from the motion for rehearing

requirement. Compare Tex. Hum. Res. Code § 48.406 with Tex. Educ. Code

§ 21.3041(b) (dispensing with motion for rehearing requirement). And the

legislature need not restate the motion for rehearing requirement in the EMR statute

because it is stated in the APA. Reed v. State Dep’t of Licensing & Regulation, 820

S.W.2d 1, 2 (Tex. App.—Austin 1991, no writ) (concluding that APA’s requirement

to file a motion for rehearing as a prerequisite to judicial review applied despite

omission of mandatory language in the specific licensing statute); Mednick v. Tex.

State Bd. of Pub. Accountancy, 933 S.W.2d 336, 338 (Tex. App.—Austin 1996, writ

denied) (similarly noting that Accountancy Act did not mandate that a party file a

motion for rehearing but did provide for application of the APA). And nothing in

section 48.406 of the Human Resources Code is inconsistent with the APA’s

procedures for judicial review. See Heat Energy Advanced Tech., Inc. v. West Dallas

Coal. for Envtl. Justice, 962 S.W.2d 288, 292 n.1 (Tex. App.—Austin 1998, pet.

denied) (“It matters not that the Commission’s enabling statute does not expressly

incorporate the APA; the enabling statute does not contradict the APA. The statutes

are consistent and the APA required the Coalition to file a motion for rehearing…”).

In short, a motion for rehearing was required because section 48.405 of the

Human Resources Code provides a contested-case hearing subject to the APA and

its requirement to file a motion for rehearing as a prerequisite to seeking judicial

review of an order in a contested-case. Section 48.406 of the Human Resources

Code also contemplates a motion for rehearing because one is required to determine

when an order is final. Further, in order to initiate judicial review the complained of

order must be appealable. It is undisputed that E.A. failed to file a motion for

rehearing, so the trial court should have dismissed the suit for lack of jurisdiction.

See CR 1131-1173.

B. Because E.A. failed to file a motion for rehearing, the trial court

lacked jurisdiction. The agency order is not appealable.

Under the APA, a timely motion for rehearing is a jurisdictional prerequisite

to appeal. See Lindsay v. Sterling, 690 S.W.2d 560, 563 (Tex. 1985). This is clear

from sections 2001.144 and .145 of the APA.

Section 2001.144 sets when an order becomes final:

Decisions; When Final

(a) A decision in a contested case is final:

(1) if a motion for rehearing is not filed on time, on the expiration of

the period for filing a motion for rehearing;

(2) if a motion for rehearing is filed on time, on the date:

(A) the order overruling the motion for rehearing is rendered; or

(B) the motion is overruled by operation of law;

(3) if a state agency finds that an imminent peril to the public health,

safety, or welfare requires immediate effect of a decision or order, on

the date the decision is rendered; or

(4) on the date specified in the order for a case in which all parties

agree to the specified date in writing or on the record, if the specified

date is not before the date the order is signed or later than the 20th day

after the date the order was rendered.

(b) If a decision or order is final under Subsection (a)(3), a state agency

must recite in the decision or order the finding made under Subsection

(a)(3) and the fact that the decision or order is final and effective on the

date rendered.

Tex. Gov’t Code § 2001.144 (2014); App. B.

Here, the agency order became final as provided by section 2001.144(a)(1)

because a motion for rehearing was not timely filed. See AR (no motion for

rehearing in administrative record); CR 1131-1173. Similarly, the order was not and

can never be final under section 2001.144(a)(2) because no motion for rehearing was

filed. And neither exception to the requirement to file a motion for rehearing applies

here. Section 2001.144(a)(3)’s imminent peril exception does not apply because the

order lacks a finding of imminent peril. Compare Tex. Gov’t Code § 2001.144(b)

(requiring order involving imminent peril to recite a finding of imminent peril and

state that the order is final and effective on the date rendered) with Agency Order

(AR 33-44) (lacking finding of imminent peril and not stating it is final when

rendered). Nor does section 2001.144(a)(4)’s exception for an agreed date of finality

apply because the order does not specify a date when it becomes final nor did the

parties agree to a specified date in writing or on the record.

Because a motion for rehearing was not timely filed, the order, although final,

is not appealable. Section 2001.145 of the APA determines whether an order is

appealable:

Motions for Rehearing; Prerequisites to Appeal

(a) A timely motion for rehearing is a prerequisite to an appeal in a

contested case except that a motion for rehearing of a decision or order

that is final under Section 2001.144(a)(3) or (4) is not a prerequisite for

appeal.

(b) A decision that is final under Section 2001.144(a)(2), (3), or (4) is

appealable.

Tex. Gov’t Code § 2001.145; App. B. So a decision that becomes final upon

expiration of the time for filing a motion for rehearing when no motion for rehearing

is filed is not appealable.

Because E.A. failed to timely file a motion for rehearing, the agency order

was not appealable, so the trial court lacked jurisdiction and should have dismissed

her suit for judicial review under the APA. See Tex. Gov’t Code § 2001.145(b); see

also id. § 311.034; App B.

C. Rule 711.1431(b) affects when an order is final, not whether it is

appealable. Rule 711.1431(b) did not expressly relieve E.A. from

filing a motion for rehearing nor could it.

While Rule 711.1431(b), the regulation covering appeal deadlines for EMR

proceedings, states that an order becomes final on “the date it is received . . . by the

employee,” the APA provides that an order becomes final upon various other

conditions—

(1) when a motion for rehearing is not timely filed,

(2) when a timely motion for rehearing is overruled by subsequent order or

operation of law,

(3) when an agency finds imminent peril and recites that finding and the date the

order becomes final, or

(4) when there is an agreed and specified date upon which the order becomes

final.

Tex. Gov’t Code § 2001.144(a), App. B; see also 40 Tex. Admin. Code

§ 711.1431(b) (2015), App. C. But whether an order is appealable and when it

becomes final are distinct under the APA, so the conflict between Rule 711.1431(b)

and the APA is limited to the finality of the order. That is, Rule 711.1431(b) does

not affect whether an order is appealable because it does not expressly relieve a

party from filing a motion for rehearing: a party can still timely file a motion for

rehearing and comply with Rule 711.1431(b).

Even if there were a conflict between the APA and Rule 711.1431(b) as to

whether a motion for rehearing is a prerequisite to judicial review, the rule must

yield to the statute. A rule cannot contravene a statute. See State Office of Pub. Util.

Council v. Pub. Util. Comm’n of Tex., 131 S.W.3d 314, 321 (Tex. App.—Austin

2004, pet. denied) (a rule that contravenes specific statutory language is facially

invalid). And an appeal from an administrative agency is not a matter of right, it is

set out by statutes that must be strictly complied with in order to vest the district

court with jurisdiction. Jones v. State Bd. of Educator Certification, 315 S.W.3d 237,

243 (Tex. App.—Austin 2010, pet. denied) (citing Tex. Alcoholic Beverage Comm’n

v. Sfair, 786 S.W.2d 26, 27 (Tex. App.—San Antonio 1990, writ denied)) (emphasis

added).

Additionally, Rule 711.1431(b) cannot waive a statutory prerequisite to suit.

As a statutory prerequisite to suit, a motion for rehearing is a jurisdictional

component of sovereign immunity set by the legislature. Tex. Gov’t Code § 311.034

(“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity.”); see also id. § 2001.145

(generally a timely motion for rehearing is a prerequisite to appeal); App. B. It is

the legislature’s sole province to waive or abrogate sovereign immunity. Tex. Nat.

Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 857 (Tex. 2002).

Consequently, administrative agencies and their agents cannot waive immunity from

suit. Id. at 858. Because administrative agencies lack the authority to waive

sovereign immunity, Rule 711.1431(b) cannot dispense with the statutory

prerequisite to file a motion for rehearing before seeking judicial review. See

Hinojosa v. Tarrant Cty., 355 S.W.3d 812, 818 (Tex. App.—Amarillo 2011, no pet.)

(“The legislative grant of power to the civil service commission to adopt limited

rules does not authorize the commission to promulgate rules waiving or abrogating

the immunity of the county and its officers. Rather, this determination is singularly

that of the Legislature.”); cf. Tex. Nat. Res. Conservation Comm’n v. Lakeshore Util.

Co., 164 S.W.3d 368, 377 (Tex. 2005) (an administrative agency is a creature of the

Legislature with no inherent authority of its own and may accordingly exercise only

those powers the Legislature confers on it by clear and express language). Thus, a

motion for rehearing was required here and E.A.’s failure to file one deprived the

district court of jurisdiction.

Finally, the requirement of having a motion for rehearing overruled cannot be

waived by agency action. Sterling, 690 S.W.2d at 563 (“The requirement of having

a motion for rehearing overruled, thus exhausting administrative remedies, is a

jurisdictional prerequisite to judicial review by the district court and cannot be

waived by action of the parties.”). Nor can jurisdiction be established by estoppel.

Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294-95 (Tex. 2001)

(“A party cannot by his own conduct confer jurisdiction on a court when none exists

otherwise. Even if the District misled Sullivan as she claims, her failure to exhaust

her administrative remedies is fatal to her action.”).

In short, E.A. failed to comply with the statutory prerequisite of filing a

motion for rehearing before seeking judicial review; therefore, this Court lacks

jurisdiction of her suit for judicial review under the APA. See Tex. Gov’t Code

§ 2001.145(b); see also id. § 311.034; App. B.

CONCLUSION AND PRAYER

For the foregoing reasons, the trial court lacked jurisdiction over E.A.’s suit

for judicial review. This Court should reverse the trial court’s order denying the

Department’s plea to the jurisdiction, grant the plea, and dismiss E.A.’s suit for lack

of subject-matter jurisdiction.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

BRANTLEY STARR

Deputy First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil

Litigation

NICHOLE BUNKER-HENDERSON

Chief, Administrative Law Division

/s/ Kimberly Fuchs

KIMBERLY FUCHS

State Bar No. 24044140

Assistant Attorney General

Administrative Law Division

Office of the Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711

Telephone (512) 475-4195

Facsimile: (512) 320-0167

kimberly.fuchs@texasattorneygeneral.gov

ATTORNEYS FOR APPELLANT/CROSS-

APPELLEE TEXAS DEPARTMENT OF FAMILY

AND PROTECTIVE SERVICES

CERTIFICATE OF COMPLIANCE

I certify that the Brief of Appellant/Cross-Appellee Texas Department of

Family and Protective Services submitted complies with Rule 9 of the Texas Rules

of Appellate Procedure and the word count of this document is 3,468. The word

processing software used to prepare this filing and calculate the word count of the

document is Microsoft Word 2013.

Date: September 28, 2016

/s/ Kimberly Fuchs

KIMBERLY FUCHS

ATTORNEY FOR TEXAS DEPARTMENT OF

FAMILY AND PROTECTIVE SERVICES

CERTIFICATE OF SERVICE

I hereby certify a true and correct copy of the foregoing Brief of Texas

Department of Family and Protective Services has been served on September 26,

2016 on the following attorneys-in-charge via electronic transmission and/or email:

Doug W. Ray

State Bar No. 16599200

Ray & Wood

2700 Bee Caves Road, Suite 200

Austin, Texas 78746

Telephone: (52) 328-8877

Facsimile: (512) 328-1156

dray@raywoodlaw.com

Morgan A. Rogers

State Bar No. 24080177

6037 Yale Street

Houston, Texas 77076

Telephone: (304) 741-8503

Facsimile: (713) 651-5538

morgan.campana@gmail.com

ATTORNEYS FOR CROSS-APPELLANT/

APPELLEE E.A.

/s/ Kimberly Fuchs

KIMBERLY FUCHS

ATTORNEY FOR TEXAS DEPARTMENT OF

FAMILY AND PROTECTIVE SERVICES

APPENDICES

INDEX OF APPENDICES

Trial Court’s Final Order dated June 30, 2016 ........................................................ A

Statutes ..................................................................................................................... B

Tex. Gov't Code §. 311.034

Tex. Gov't Code § 2001.003

Tex. Gov't Code § 2001.144 (2014)

Tex. Gov't Code § 2001.145

Tex. Gov't Code § 2001.171

Tex. Gov't Code §. 2001.176

Tex. Hum. Res. Code § 48.405

Tex. Hum. Res. Code § 48.406

Rule 40 TAC § 711.1431 (2015) ............................................................................. C

Agency Order ........................................................................................................... D

APPENDIX A

Trial Court’s Final Order

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CAUSE NO. D-1-GN-13-001797 u~

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E.A., § IN THE DISTRICT COURT OF ll)

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Plaintiff, § o.;U

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v. § TRAVIS COUNTY, TEXAS ·-

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LL.

TEXAS DEPARTMENT OF FAMILY §

AND PROTECTIVE SERVICES, §

Defendant. § 353rd JUDICIAL DISTRICT

ORDER DENYING PLEA TO THE JURISDICTION AND AFFIRMING THE

DEPARTMENT'S DECISION

On this the 30th day of June, 2016, Plaintiff, E.A., and Defendant, Texas

Department of Family and Protective Services, appeared before the Court. Having

considered the pleadings, administrative record, briefs, and arguments of counsel, the

Court denies the Department's plea to the Jurisdiction. The Court further concludes

that the Department's decision is supported by substantial evidence and is in all respects

AFFIRMED.

This is a final order and disposes of all claims.

Signed on this *

~ day 0&"~2016.

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Page I of I

APPENDIX B

Statutes

§ 311.034. Waiver of Sovereign Immunity, TX GOVT § 311.034

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 3. Legislative Branch (Refs & Annos)

Subtitle B. Legislation

Chapter 311. Code Construction Act (Refs & Annos)

Subchapter C. Construction of Statutes (Refs & Annos)

V.T.C.A., Government Code § 311.034

§ 311.034. Waiver of Sovereign Immunity

Effective: September 1, 2005

Currentness

In order to preserve the legislature’s interest in managing state fiscal matters through the appropriations

process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected

by clear and unambiguous language. In a statute, the use of “person,” as defined by Section 311.005 to

include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the

context of the statute indicates no other reasonable construction. Statutory prerequisites to a suit, including

the provision of notice, are jurisdictional requirements in all suits against a governmental entity.

Credits

Added by Acts 2001, 77th Leg., ch. 1158, § 8, eff. June 15, 2001. Amended by Acts 2005, 79th Leg., ch.

1150, § 1, eff. Sept. 1, 2005.

V. T. C. A., Government Code § 311.034, TX GOVT § 311.034

Current through the end of the 2015 Regular Session of the 84th Legislature

Government Works.

§ 2001.003. Definitions, TX GOVT § 2001.003

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 10. General Government (Refs & Annos)

Subtitle A. Administrative Procedure and Practice

Chapter 2001. Administrative Procedure (Refs & Annos)

Subchapter A. General Provisions (Refs & Annos)

V.T.C.A., Government Code § 2001.003

§ 2001.003. Definitions

Effective: September 1, 2005

Currentness

In this chapter:

(1) “Contested case” means a proceeding, including a ratemaking or licensing proceeding, in which the

legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity

for adjudicative hearing.

(2) “License” includes the whole or a part of a state agency permit, certificate, approval, registration,

or similar form of permission required by law.

(3) “Licensing” includes a state agency process relating to the granting, denial, renewal, revocation,

suspension, annulment, withdrawal, or amendment of a license.

(4) “Party” means a person or state agency named or admitted as a party.

(5) “Person” means an individual, partnership, corporation, association, governmental subdivision, or

public or private organization that is not a state agency.

(6) “Rule”:

(A) means a state agency statement of general applicability that:

(i) implements, interprets, or prescribes law or policy; or

§ 2001.003. Definitions, TX GOVT § 2001.003

(ii) describes the procedure or practice requirements of a state agency;

(B) includes the amendment or repeal of a prior rule; and

agency and not affecting private rights or procedures.

(7) “State agency” means a state officer, board, commission, or department with statewide jurisdiction

that makes rules or determines contested cases. The term includes the State Office of Administrative

Hearings for the purpose of determining contested cases. The term does not include:

(A) a state agency wholly financed by federal money;

(B) the legislature;

(D) the Texas Department of Insurance, as regards proceedings and activities under Title 5, Labor

Code,1 of the department, the commissioner of insurance, or the commissioner of workers’

compensation; or

(E) an institution of higher education.

Credits

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch.

265, § 6.007, eff. Sept. 1, 2005.

Footnotes

V.T.C.A., Labor Code § 401.001 et seq.

V. T. C. A., Government Code § 2001.003, TX GOVT § 2001.003

Current through the end of the 2015 Regular Session of the 84th Legislature

§ 2001.003. Definitions, TX GOVT § 2001.003

Government Works.

§ 2001.144. Decisions; When Final, TX GOVT § 2001.144

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 10. General Government (Refs & Annos)

Subtitle A. Administrative Procedure and Practice

Chapter 2001. Administrative Procedure (Refs & Annos)

Subchapter F. Contested Cases: Final Decisions and Orders; Motions for Rehearing

V.T.C.A., Government Code § 2001.144

§ 2001.144. Decisions; When Final

Effective: [See Text Amendments] to August 31, 2015

(a) A decision in a contested case is final:

(1) if a motion for rehearing is not filed on time, on the expiration of the period for filing a motion for

rehearing;

(2) if a motion for rehearing is filed on time, on the date:

(A) the order overruling the motion for rehearing is rendered; or

(B) the motion is overruled by operation of law;

(3) if a state agency finds that an imminent peril to the public health, safety, or welfare requires

immediate effect of a decision or order, on the date the decision is rendered; or

(4) on the date specified in the order for a case in which all parties agree to the specified date in writing

or on the record, if the specified date is not before the date the order is signed or later than the 20th day

after the date the order was rendered.

(b) If a decision or order is final under Subsection (a)(3), a state agency must recite in the decision or

order the finding made under Subsection (a)(3) and the fact that the decision or order is final and effective

on the date rendered.

Credits

§ 2001.144. Decisions; When Final, TX GOVT § 2001.144

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch.

611, § 1, eff. Sept. 1, 1997.

V. T. C. A., Government Code § 2001.144, TX GOVT § 2001.144

Current through the end of the 2015 Regular Session of the 84th Legislature

Government Works.

§ 2001.145. Motions for Rehearing: Prerequisites to Appeal, TX GOVT § 2001.145

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 10. General Government (Refs & Annos)

Subtitle A. Administrative Procedure and Practice

Chapter 2001. Administrative Procedure (Refs & Annos)

Subchapter F. Contested Cases: Final Decisions and Orders; Motions for Rehearing

V.T.C.A., Government Code § 2001.145

§ 2001.145. Motions for Rehearing: Prerequisites to Appeal

Effective: September 1, 2015

Currentness

(a) A timely motion for rehearing is a prerequisite to an appeal in a contested case except that a motion

for rehearing of a decision or order that is final under Section 2001.144(a)(3) or (4) is not a prerequisite

for appeal.

(b) A decision or order that is final under Section 2001.144(a)(2), (3), or (4) is appealable.

Credits

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch.

611, § 2, eff. Sept. 1, 1997; Acts 2015, 84th Leg., ch. 625 (S.B. 1267), § 8, eff. Sept. 1, 2015.

V. T. C. A., Government Code § 2001.145, TX GOVT § 2001.145

Current through the end of the 2015 Regular Session of the 84th Legislature

Government Works.

§ 2001.171. Judicial Review, TX GOVT § 2001.171

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 10. General Government (Refs & Annos)

Subtitle A. Administrative Procedure and Practice

Chapter 2001. Administrative Procedure (Refs & Annos)

Subchapter G. Contested Cases: Judicial Review

V.T.C.A., Government Code § 2001.171

§ 2001.171. Judicial Review

Currentness

A person who has exhausted all administrative remedies available within a state agency and who is

aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.

Credits

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.

V. T. C. A., Government Code § 2001.171, TX GOVT § 2001.171

Current through the end of the 2015 Regular Session of the 84th Legislature

Government Works.

§ 2001.176. Petition Initiating Judicial Review, TX GOVT § 2001.176

Vernon’s Texas Statutes and Codes Annotated

Government Code (Refs & Annos)

Title 10. General Government (Refs & Annos)

Subtitle A. Administrative Procedure and Practice

Chapter 2001. Administrative Procedure (Refs & Annos)

Subchapter G. Contested Cases: Judicial Review

V.T.C.A., Government Code § 2001.176

§ 2001.176. Petition Initiating Judicial Review

Effective: September 1, 2015

Currentness

(a) A person initiates judicial review in a contested case by filing a petition not later than the 30th day

after the date the decision or order that is the subject of complaint is final and appealable. In a contested

case in which a motion for rehearing is a prerequisite for seeking judicial review, a prematurely filed

petition is effective to initiate judicial review and is considered to be filed:

(1) on the date the last timely motion for rehearing is overruled; and

(2) after the motion is overruled.

(b) Unless otherwise provided by statute:

(1) the petition must be filed in a Travis County district court;

(2) a copy of the petition must be served on the state agency and each party of record in the proceedings

before the agency; and

(3) the filing of the petition vacates a state agency decision for which trial de novo is the manner of

review authorized by law but does not affect the enforcement of an agency decision for which another

manner of review is authorized.

on motion of any party, may request transfer of the action to the Court of Appeals for the Third Court of

Appeals District if the district court finds that the public interest requires a prompt, authoritative

§ 2001.176. Petition Initiating Judicial Review, TX GOVT § 2001.176

determination of the legal issues in the case and the case would ordinarily be appealed. After filing of the

district court’s request with the court of appeals, transfer of the action may be granted by the court of

appeals if it agrees with the findings of the district court concerning the application of the statutory

standards to the action. On entry of an order by the court of appeals granting transfer, the action is

transferred to the court of appeals for decision, and the agency decision in the contested case is subject to

judicial review by the court of appeals. The administrative record and the district court record shall be

filed by the district clerk with the clerk of the court of appeals. The court of appeals may direct the district

court to conduct any necessary evidentiary hearings in connection with the action.

Credits

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch.

894, § 2, eff. Sept. 1, 1999; Acts 2015, 84th Leg., ch. 625 (S.B. 1267), § 10, eff. Sept. 1, 2015.

V. T. C. A., Government Code § 2001.176, TX GOVT § 2001.176

Current through the end of the 2015 Regular Session of the 84th Legislature

Government Works.

§ 48.405. Hearing; Order, TX HUM RES § 48.405

Vernon’s Texas Statutes and Codes Annotated

HumanResourcesCode(Refs & Annos)

Title 2. Human Services and Protective Services in General

Subtitle D. Department of Family and Protective Services; Child Welfare and Protective Services

Chapter 48. Investigations and Protective Services for Elderly Persons and Persons with Disabilities

(Refs & Annos)

Subchapter I. Employee Misconduct Registry

V.T.C.A., Human Resources Code § 48.405

§ 48.405. Hearing; Order

Effective: September 1, 2011

Currentness

(a) If the employee requests a hearing, the department or its designee shall:

(1) set a hearing;

(2) give written notice of the hearing to the employee; and

(3) designate an administrative law judge to conduct the hearing.

(b) The administrative law judge shall make findings of fact and conclusions of law and shall promptly

issue an order regarding the occurrence of the reportable conduct.

Credits

Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002. Amended by Acts 2009, 81st Leg., ch.

763, § 18, eff. June 19, 2009; Acts 2011, 82nd Leg., ch. 1056 (S.B. 221), §§ 16, 17, eff. Sept. 1, 2011.

V. T. C. A., Human Resources Code § 48.405, TX HUM RES § 48.405

Current through the end of the 2015 Regular Session of the 84th Legislature

§ 48.405. Hearing; Order, TX HUM RES § 48.405

Government Works.

§ 48.406. Notice; Judicial Review, TX HUM RES § 48.406

Vernon’s Texas Statutes and Codes Annotated

HumanResourcesCode(Refs & Annos)

Title 2. Human Services and Protective Services in General

Subtitle D. Department of Family and Protective Services; Child Welfare and Protective Services

Chapter 48. Investigations and Protective Services for Elderly Persons and Persons with Disabilities

(Refs & Annos)

Subchapter I. Employee Misconduct Registry

V.T.C.A., Human Resources Code § 48.406

§ 48.406. Notice; Judicial Review

Effective: June 19, 2009

Currentness

(a) The department shall give notice of the order under Section 48.405 to the employee alleged to have

committed the reportable conduct. The notice must include:

(1) separate statements of the findings of fact and conclusions of law;

(2) a statement of the right of the employee to judicial review of the order; and

(3) a statement that the reportable conduct will be recorded in the employee misconduct registry under

Section 253.007, Health and Safety Code, if:

(A) the employee does not request judicial review of the finding; or

(B) the finding is sustained by the court.

(b) Not later than the 30th day after the date the decision becomes final as provided by Chapter 2001,

Government Code, the employee may file a petition for judicial review contesting the finding of the

reportable conduct. If the employee does not request judicial review of the finding, the department shall

send a record of the department’s findings to the Department of Aging and Disability Services to record

in the employee misconduct registry under Section 253.007, Health and Safety Code.

(1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code;1

§ 48.406. Notice; Judicial Review, TX HUM RES § 48.406

and

(2) is under the substantial evidence rule.

(d) If the court sustains the finding of the occurrence of the reportable conduct, the department shall

forward the finding of reportable conduct to the Department of Aging and Disability Services to record

the reportable conduct in the employee misconduct registry under Section 253.007, Health and Safety

Code.

Credits

Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002. Amended by Acts 2009, 81st Leg., ch.

763, § 19, eff. June 19, 2009.

Footnotes

V.T.C.A., Government Code § 2001.171 et seq.

V. T. C. A., Human Resources Code § 48.406, TX HUM RES § 48.406

Current through the end of the 2015 Regular Session of the 84th Legislature

Government Works.

APPENDIX C

Rule 40 TAC § 711.1431

Page 1

111JPC

TEXAS ADMINISTRATIVE CODE

*** ARCHIVE DATA ***

*** This document reflects all regulations in effect as of December 31, 2015 ***

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 711. INVESTIGATIONS IN DADS AND DSHS FACILITIES AND RELATED PRO-

GRAMS

SUBCHAPTER O. EMPLOYEE MISCONDUCT REGISTRY

40 TAC § 711.1431 (2015)

§ 711.1431. How is judicial review requested and what is the deadline?

(a) To request judicial review of a Hearing Order, the employee must file a petition for judicial

review in a Travis County district court, as provided by Government Code, Chapter 2001, Subchap-

ter G.

(b) The petition must be filed with the court no later than the 30th day after the date the Hearing

Order becomes final, which is the date that the Hearing Order is received by the employee.

Human Resources Code.

(d) Unless citation for a petition for judicial review is served on DFPS within 45 days after the

date on which the Hearing Order is mailed to the employee, DFPS will submit the employee's name

for inclusion in the Employee Misconduct Registry. If valid service of citation is received after the

employee's name has been recorded in the registry, DFPS will determine whether the lawsuit was

timely filed and, if so, immediately request that the employee's name be removed from the registry

pending the outcome of the judicial review.

SOURCE: The provisions of this § 711.1431 adopted to be effective March 1, 2002, 27 TexReg

955; amended to be effective March 1, 2008, 33 TexReg 1360; amended to be effective September

1, 2010, 35 TexReg 6835

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.