E.A. v. Texas Department of Family and Protective Services

IN THE SUPREME COURT OF TEXAS
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No. 17-0521
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E.A., PETITIONER,
v.

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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PER CURIAM

We recently held that, under the Administrative Procedures Act, a party seeking judicial

review of an administrative order must first move for rehearing before the administrative law

judge, unless another governing statute provides otherwise. Mosley v. Tex. Health & Hum.

Servs. Comm’n, ___ S.W.3d ___, ___ (Tex. 2019). An agency’s affirmative misrepresentation of

the proper procedure for judicial review, however, may violate a party’s right to due process. Id.

at ___.

This appeal presents the issues decided in Mosley. The court of appeals concluded in this

case that the trial court lacked jurisdiction because E.A. did not move for rehearing before the

administrative law judge, and it rejected E.A.’s due-process challenge based on the agency’s

misrepresentation of the proper procedure for judicial review. ___ S.W.3d ___ (Tex. App.—

Austin 2017). We agree that the trial court lacked jurisdiction because E.A. did not seek
rehearing of the order she challenges before the administrative law judge. But because, as in

Mosely, the agency misrepresented the proper procedure for judicial review in a letter to E.A.,

we hold that E.A. was denied due process.

For the reasons expressed in Mosley, we grant E.A.’s petition for review and, without oral

argument, reverse in part. See TEX. R. APP. P. 59.1. We hold that the government violated

E.A.’s due-course-of-law rights under the Texas Constitution. See TEX. CONST. art. I, § 19. 1

Because “the remedy for a denial of due process is due process,” Univ. of Tex. Med. Sch. v.

Than, 901 S.W.2d 926, 933 (Tex. 1995), we direct the Department of Family and Protective

Services, or its designee, see TEX. HUM. RES. CODE § 48.405(a), to reinstate E.A.’s

administrative case and afford her an opportunity to seek rehearing of the order she challenges

before the administrative law judge.

OPINION DELIVERED: October 25, 2019

1
“While the Texas Constitution is textually different in that it refers to ‘due course’ rather than ‘due
process,’ we regard these terms as without meaningful distinction” and thus “have traditionally followed
contemporary federal due process interpretations of procedural due process issues.” Univ. of Tex. Med. Sch. v.
Than, 901 S.W.2d 926, 929 (Tex. 1995).

2