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Mosley v. Texas Health & Human Services Commission
May 3, 2019
593 S.W.3d 250
Texas Supreme Court
Published Opinion

Mosley v. Texas Health & Human Services Commission

Supreme Court of Texas.

Patricia MOSLEY, Petitioner


TEXAS HEALTH AND HUMAN SERVICES COMMISSION and Texas Department of Family and Protective Services, Respondents

No. 17-0345


Argued January 9, 2019




Attorneys & Firms

Paulina Antonia Olin Williams, for Patricia Mosley.

Atty. Gen. James Edward Davis, Andrew J. Lutostanski, Kyle D. Hawkins, for Texas Department of Family and Protective Services.

Anna Bidwell, for Institute for Justice.


Jeffrey V. Brown, Justice

*254 In this case we hold that under the Administrative Procedures Act, an appellant seeking judicial review of an administrative order must first file a motion for rehearing with the administrative-law judge unless another statute plainly provides otherwise. We further hold that an agency’s misrepresentation of the proper procedures to seek judicial review of an adverse order can—at least under some circumstances—violate the appellant’s right to due process.

Accordingly, we agree with the court of appeals that the trial court below lacked jurisdiction over the petitioner’s appeal because she did not seek rehearing of the administrative-law judge’s ruling. But, unlike the court of appeals, we further hold that the agency’s misleading letter to the petitioner, and the admittedly incorrect regulation on which it relied, effectively deprived her of her right to judicial review. Although the agency now insists a motion for rehearing was required, a letter the agency sent the petitioner quoted a regulation stating she had thirty days to seek judicial review from a district court without mentioning a motion-for-rehearing requirement. The petitioner acted accordingly. The agency concedes the now-repealed regulation misstated the law, but argues the petitioner should have known better. We disagree and hold that the letter’s misrepresentations amounted to a denial of due process.

We therefore affirm the court of appeals’ judgment in part and reverse in part. Because the remedy for a deprivation of due process is due process, we direct the Health and Human Services Commission to reinstate Mosley’s administrative case to afford her an opportunity to seek rehearing of the order entered against her.


One of the duties of the Texas Department of Family and Protective Services (the Department) is to investigate reports of “abuse, neglect, or exploitation of an elderly person or person with a disability.” TEX. HEALTH & SAFETY CODE § 253.007(a). The Registry contains the employee’s name, address, social-security number, and a description of the reportable conduct. Id. Before any facility can hire an employee, it must search the Registry “to determine whether the applicant for employment is designated ... as having abused, neglected, or exploited an individual,” and cannot hire the employee if he or she appears in the Registry. Id. *255 § 253.008(a)–(b). Placement in the Registry is effectively career-ending. See id.

Upon a finding of “reportable conduct,” the Department must provide written notice to the employee that includes: a summary of its findings; a statement of the employee’s right to a hearing on the findings; and a statement notifying the employee that if the employee fails to timely respond to the notice, the reportable-conduct finding will be recorded in the Registry. Id. § 48.404(c). After a Registry hearing, the administrative-law judge (ALJ) “shall promptly issue an order regarding the occurrence of the reportable conduct.” Id. § 48.405(b). The employee may request judicial review of a Registry finding. Id. § 48.406.

The Department investigated an incident involving Patricia Mosley’s care of a group-home resident, confirmed a finding of “reportable conduct,” and recommended Mosley’s name be added to the Registry. Mosley requested a hearing, which the Department delegated to the Health and Human Services Commission (the Commission). The ALJ sustained the determination and sent Mosley a “Final Decision and Order.” The accompanying letter stated:

Enclosed is the Final Decision and Order (Hearing Order) in the hearing you requested in the-above referenced matter. This Hearing Order will become final and your name will be submitted to the Employee Misconduct Registry unless you timely petition for judicial review.

Should you wish to appeal the Hearing Order, section 711.[1]4311 of the Texas Administrative Code provides, in pertinent part, as follows:

(a) To request judicial review of a Hearing Order, the employee [you] must file a petition for judicial review in a Travis County district court, as provided by Government Code, Chapter 2001, Subchapter 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.

(c) Judicial review by the court is under the substantial evidence rule, as provided by § 48.406, 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. ...

At issue in this appeal are the representations contained in the letter and the quoted provisions of a now-repealed Department rule addressing finality of the ALJ’s order and the process by which *256 Mosley may seek judicial review. Specifically, the letter indicates that the “Order will become final ... unless you timely petition for judicial review” within thirty days of receiving the order. The letter fails to explain that Mosley may file a motion for rehearing or indicate that doing so is a prerequisite for judicial review. The Department and the Commission (the Agencies) concede the letter and the regulation therein contained bad information. The Agencies now argue that the Administrative Procedures Act (the APA), see TEX. GOV’T CODE §§ 2001.001–902, required Mosley to file a motion for rehearing with the ALJ before seeking judicial review, and that the order was not final for purposes of appeal because she failed to do so.

Claiming she relied on the letter and quoted regulation, Mosley sought judicial review without filing a motion for rehearing. The Agencies filed a plea to the jurisdiction, arguing the trial court lacked subject-matter jurisdiction because Mosley failed to seek rehearing. Although the Agencies concede the Department rule in place at the time incorrectly stated the law, they argued an incorrect agency rule cannot confer subject-matter jurisdiction on the trial court and that Mosley was charged with knowledge of the APA’s requirements.

While Mosley litigated her case at the trial court, the Department amended its rule to expressly require a motion for rehearing: “A timely motion for rehearing is a prerequisite to judicial review and must be filed in accordance with Subchapters F and G, Chapter 2001, Government Code.” 40 TEX. ADMIN. CODE § 711.1431(a). Importantly, a Department memo circulated just two months after the agencies filed their pleas to the jurisdiction stated that the “primary purpose” of the rule amendment was “to update the terminology and process requirements regarding the due process rights of an employee prior to placement on the [Registry].” According to the memo, the amendment “[m]akes the filing of a timely motion for rehearing in accordance with Subchapters F and G of Government Code Chapter 2001 a prerequisite to judicial review” and “[u]pdates the guidance regarding seeking judicial review by referring to the operative law on point, Subchapters F and G of Government Code Chapter 2001.”

The trial court overruled the Agencies’ jurisdictional plea but ruled for them on the merits of Mosley’s appeal, finding that substantial evidence supported the ALJ’s order. See Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986) (recognizing that under the substantial-evidence rule, a reviewing court may set aside an ALJ’s decision only if it was “made without regard to the law or the facts and therefore was unreasonable, arbitrary, or capricious,” and not simply because the trial court “would have reached a different conclusion”). Accordingly, Mosley appealed the trial court’s decision on the merits, and the Agencies—though winning on the merits at the trial court—cross-appealed the trial court’s denial of their jurisdictional plea.

The court of appeals reversed the trial court’s judgment on the Agencies’ jurisdictional plea and rendered judgment that Mosley’s failure to seek rehearing deprived the trial court of subject-matter jurisdiction. Id. at 350–51.

That standard notwithstanding, the court of appeals noted that chapter 48 of the Human Resources Code—which governs judicial review of a Registry finding—does expressly invoke the APA. Although it does not “expressly require a motion for rehearing,” the court observed that it nonetheless provides that “ ‘[j]udicial review of [a Registry finding] is instituted by filing a petition as provided by Subchapter G [of the APA].’ ” (b) ).

The court of appeals further rejected Mosley’s argument that “[the Department’s] rules effective at the time of the proceedings below reflect the agency’s ‘interpretation’ that no motion for rehearing was required,” reasoning that “an agency may not waive a jurisdictional prerequisite such as the APA’s motion-for-rehearing requirement, even if the agency improperly communicates to a party that there are no further administrative remedies available to pursue.” Id.

We granted Mosley’s petition for review.


Motion for Rehearing

Mosley re-urges her arguments to this Court that a motion for rehearing is not a prerequisite for judicial review. She first argues our precedent does not support the court of appeals’ position that the APA’s motion-for-rehearing requirement applies by default to judicial review of all agency orders unless another statute indicates otherwise. Although the court of appeals largely followed its own precedents, it also relied on our holding in Dellana does not support so broad a rule.

Mosley further points out that chapter 48 of the Human Resources Code section says nothing about motions for rehearing. She acknowledges that section 48.406(c)’s requirement that a petition for judicial review be filed “as provided by” subchapter G of the APA.

Mosley further argues that while the Department’s now-repealed rule was still on the books, the legislature substantively amended the statutory provisions at issue without adding a motion-for-rehearing requirement, indicating legislative acquiescence to that agency’s interpretation of the statute. She also urges us to construe the order against her as final for purposes of appeal based on agreement between her and the Department, and to hold that filing a motion for rehearing with the ALJ would have been futile.

We agree with the court of appeals, however, that the APA requires a motion for rehearing as a jurisdictional prerequisite to judicial review of a Registry finding. The APA’s motion-for-rehearing requirement applies to judicial review of all agency orders barring explicit statutory indication to the contrary. Mosley is correct that section 48.406, while silent as to motions for rehearing, invokes the APA twice when describing the process for seeking judicial review. Although Mosley argues that the APA confers authority on the Department to adopt rules contrary to APA provisions, she does not—and cannot—argue the legislature disavowed the APA’s applicability to judicial review of Registry findings.

The APA declares that it is “the public policy of the state through this chapter to” both “provide minimum standards of uniform practice and procedure for state agencies” and “restate the law of judicial review of state agency action.” Marble Falls Indep. Sch. Dist. v. Scott, 275 S.W.3d 558, 563 (Tex. App.—Austin 2008, pet. denied).2

The court of appeals has faced this situation before. In Id.

And the legislature has certainly proved itself able to exempt an agency procedure from the APA’s minimum procedural requirements when it wants to. It has expressly provided that the APA “does not apply to a rule or internal procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice,” Miller v. Keyser, 90 S.W.3d 712, 719 (Tex. 2002) (declining to extend liability exemption to non-media employees because statute “demonstrates that the Legislature knew how to exempt employees from liability ... [a]nd it chose to only exempt media employees”).

In addition to its own precedents, the court of appeals relied on our holding in Id. at 810.

Mosley argues Dellana—a quarter-century-old per-curiam opinion issued under a predecessor statutory regime—controls the outcome here. But based on the stated purpose and comprehensive reach of today’s APA, we do not hesitate to ratify the court of appeals’ approach. The APA, and in particular its motion-for-rehearing prerequisite to judicial review, applies generally and until the legislature says it doesn’t.

And the legislature hardly hinted that the Act doesn’t apply when it invoked it twice in outlining the procedures for judicial review of a Registry finding. Chapter 48 of the Human Resources Code—the enabling legislation that governs the Registry, administrative review of the placement of an employee in the Registry, and judicial review of an ALJ’s adjudication of a contested case—includes no language disavowing the APA’s motion-for-rehearing requirement. On the contrary, chapter 48 twice invokes the APA when providing for judicial review of a Registry finding. First, TEX. GOV’T CODE § 2001.144(a)(1)–(2).

Second, judicial review of the ALJ’s order “is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code (the APA).” § 2001.145(a) (“A timely motion for rehearing is a prerequisite to an appeal in a contested case ....”).

We have long held that the APA’s motion-for-rehearing requirement is a jurisdictional prerequisite to an appeal from contested-case proceedings. The failure to file such a motion therefore “deprives the district court of jurisdiction to review the agency’s decision on appeal.” Lindsay v. Sterling, 690 S.W.2d 560, 563 (Tex. 1985) (“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.”).3 Accordingly, the court of appeals correctly held the trial court below lacked jurisdiction to consider Mosley’s appeal.

We address Mosley’s remaining arguments in light of our holding on the general applicability of the APA’s motion-for-rehearing requirement. First, while we acknowledge that the APA authorizes agencies to “adopt rules of practice stating the nature and requirements of all available formal and informal procedures,” see Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex. 1999) (“[A]n administrative agency’s construction of a statute cannot contradict the statute’s plain meaning.”).

Nor are we persuaded that the legislature’s revisions to other provisions of chapter 48 of the Human Resources Code—while leaving the sections concerning finality of orders and judicial review untouched—indicate legislative acceptance of the Department’s implementation of those provisions. We have sometimes held that when “an ambiguous statute that has been ... given a longstanding construction by a proper administrative officer is re-enacted without substantial change,” the legislature is “presumed to have been familiar with that interpretation and to have adopted it.” Tex. Dep’t of Prot. & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004) (internal quotation omitted) (emphasis added). But neither the APA nor chapter 48 of the Human Resources Code is ambiguous. Even if we did not hold that the APA generally applies absent an express statutory indication to the contrary, the judicial-review *262 provisions in chapter 48 themselves invoke the APA. Nor are we presented with any argument that the now-repealed Department rule was a “longstanding construction” entitled to any deference.

We further disagree with Mosley that reference only to subchapter G of the APA in Cont’l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000) (“Each provision must be construed in the context of the entire statute of which it is a part.”).

We also reject Mosley’s argument that the order against her was final for purposes of appeal pursuant to an APA provision providing that an order may be final on “the date specified in the decision or order for a case in which all parties agree to the specified date in writing or on the record[.]” TEX. GOV’T CODE § 2001.144(a)(4)(A). Mosley argues that her request for a hearing governed by the Department’s rules constituted her written agreement to the date her order would become final under the terms explained in her letter. We disagree. Nothing in the applicable provision suggests the simple invocation of a hearing amounts to an agreement in writing on the date on which an as yet non-existent order would become final—and Mosley presents us with no authority supportive of so broad an interpretation.

Mosley also argues that filing a motion for rehearing would have been futile, and therefore an exception to any exhaustion requirement should apply. She insists that under the Agencies’ rules and practice at the time, there was no procedure for where, when, or how to file a motion for rehearing of a Registry finding. But the APA itself provides that procedure. And there is no evidence that the Commission necessarily would not have considered Mosley’s motion for rehearing had she filed one, nor does it matter that the Commission possibly would have refused to do so. The Agencies have already conceded their rules were inconsistent with the law and have updated them accordingly. The question is whether Mosley was required to try to move for rehearing.

We affirm the court of appeals’ judgment that Mosley was required to file a motion for rehearing of the Registry finding before seeking judicial review.


Due Process

We now turn to Mosely’s due-process claim. Mosley and the Institute for Justice, appearing as amicus curiae, argue that even if a motion for rehearing is required, the representations in the ALJ’s letter and the quoted provisions of the regulation were so misleading that they amounted to *263 inadequate notice and violated Mosley’s right to due process. Mosley contends the misrepresentations of law in the letter and the regulation imperil her liberty and property interests, and that protecting her interests would be no burden on the government’s interest. Both she and the amicus note that due process limits the presumption that every person knows the law. And they cite a line of federal cases holding that misleading agency statements or representations constitute inadequate notice and thus violate due process.

The Department concedes its own regulation was wrong, and an internal Department memo suggests its staff knew the regulation created some due-process issues. However, the Agencies argue Mosley was charged with knowledge of the law and a presumption she would consult the APA and its motion-for-rehearing requirement before seeking judicial review. They argue the incorrect statements did not, as a matter of law, prevent Mosley from filing a motion for rehearing and obtaining judicial review because she could have complied with both the APA and the then-existing regulation. The Agencies also contend that because Mosley failed to exhaust administrative remedies before pursuing her constitutional claim, it suffers the same fate as her claim for review of the order on the merits.

As a threshold matter, we reject the Agencies’ contention that Mosley’s failure to file a motion for rehearing deprives us of jurisdiction to consider Mosley’s due-process argument. We have previously stated that “[a]lthough agencies have no power to preempt a court’s constitutional construction, a party asserting [a constitutional claim] must first exhaust its administrative remedies and comply with jurisdictional prerequisites for suit.” City of Dallas v. Stewart, 361 S.W.3d 562, 579 (Tex. 2012). But the issue here is not whether the Commission had authority to resolve Mosley’s constitutional claim. Rather, the question is whether the Commission’s misleading letter deprived Mosley of her right to seek judicial review of the ALJ’s decision on the merits. Accordingly, the Agencies’ argument fails for the simple reason that Mosley’s due-process claim is not a direct attack on the Registry finding. While that claim would require exhaustion, an attack on the Agencies’ affirmative misdirection—which Mosley argues deprived her of the ability to exhaust her administrative remedies in the first place—does not. It would be nonsensical to require Mosley to raise a constitutional challenge in a motion for rehearing when her constitutional complaint is that the Agencies misdirected her away from moving for rehearing. Having concluded we possess jurisdiction over Mosley’s constitutional claim, we now address its merits.

We conclude that the misrepresentations in the letter, largely due to the incorrect regulation included therein, effectively deprived Mosely of her right to judicial review and violated her right to due process. Instead of directing her to file a motion for rehearing, the letter misled Mosley to believe the order would become “final” and that her name would be placed on the Registry “unless” she filed “a timely petition for judicial review” within thirty days. This misdirection makes this case distinguishable from others in which the government simply failed to inform a party about an available remedy. Cf. City of Dallas v. VSC, LLC, 347 S.W.3d 231, 238–39 (Tex. 2011) (same). So while the Agencies may be generally correct that parties have an obligation to *264 discover and satisfy any prerequisites to judicial review, this duty is in tension with the government’s constitutional obligation to furnish due process. And that obligation is not satisfied by publishing an erroneous regulation, providing that regulation to those who might seek judicial review of a Registry finding, and then blaming the appellant who fails to discover the regulation was wrong all along. We therefore disagree with the Agencies’ contention that Mosley should have ignored these instructions and known that an entirely separate course of action, unmentioned in either the letter or regulation, was in fact necessary.4

The Texas Constitution’s due-course-of-law guarantee provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).

A two-part test governs a due-process claim: we must determine whether petitioners “(1) ha[ve] a liberty or property interest that is entitled to procedural due process protection; and (2) if so, we must determine what process is due.” Than, 901 S.W.2d at 930.

*265 “Due process at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Martinez v. Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400, 405 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.).

The first factor weighs heavily in Mosley’s favor because the placement of her name on the Registry will forever bar her from engaging in home-healthcare work. However, it is the second factor which is truly at issue in this case: whether there was a high risk of an erroneous deprivation of Mosley’s rights under the procedures implemented. We agree with Mosley that the Agencies’ notice in this case created a high risk of erroneous deprivation of Mosley’s rights. The Agencies counter that Mosley was charged with discovering and satisfying any prerequisites to judicial review regardless of any unintended misdirection by the Agencies. We agree that “[t]he rule that ignorance of the law will not excuse is deep in our law ....” Id.

It is well-established that “[t]he failure to give adequate notice violates the most rudimentary demands of due process of law.” Than, 901 S.W.2d at 929.

In Id. at 856.

The amicus here relies heavily on Id. at 57.

In the social-security context, the Ninth Circuit has held that a notice violated a disability claimant’s right to due process when it failed to clearly indicate that a determination denying benefits would become final absent a request for reconsideration. Id.

Other circuit courts analyzing defective notices in the social-security context require a claimant to establish not only that the notice received was defective but also that the claimant detrimentally relied on the defective notice. See, e.g., Id. at 1270.

The United States Supreme Court has also suggested that an administrative agency’s misleading statements may offend “traditional notions of fairness.” Id. at 659–660, 93 S.Ct. 1804.

The Court agreed. Even though the government’s published regulations required permits to discharge refuse for items other than those that “would impede or obstruct navigation,” the Court focused on the government’s consistent construction of the act. Id.

We are persuaded that these federal cases are sufficiently analogous to Mosley’s situation. Even if we apply the more stringent two-prong approach requiring a showing of detrimental reliance, Mosley prevails. The notice to Mosley—the letter and regulation on which it relies—effectively said her career would be over unless she filed for judicial review within thirty days. It failed to state the need to first file a motion for rehearing and affirmatively misrepresented that filing a petition for judicial review was the appropriate and necessary next course of action. The Department has even acknowledged that the regulation (1) misstated the law and (2) was amended to “update the ... process requirements regarding the due process rights” of those appealing Registry findings and more clearly explain the employee’s administrative remedies. Like the misrepresentation of the requirements for avoiding foreclosure in Loudermilk, 290 F.3d at 1270.

The Agencies—acknowledging that the regulation was “incorrect”—argue Mosley should have ignored the instructions contained in the notice and followed the APA’s motion-for-rehearing requirement of which she had no independent knowledge. Alternatively, citing our holding in Id. at 654.

But Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 658–59 (Tex. 2004) (holding no due-process violation when there was “no evidence presented to show that [agency] rules ... prevent[ed] [a party] from taking advantage of these defined procedures to challenge the reimbursement amounts paid for medical services.”). This aligns with the federal cases discussed above.

Given the Agencies’ concession that the Department’s rule was incorrect, we conclude the notice sent to Mosley and the regulation it quoted were so misleading as to prevent Mosley from filing the motion for rehearing the APA requires. Consequently, we hold that the Agencies violated Mosely’s due-course-of-law rights. Having concluded Mosley is entitled to the relief she seeks under due-process and due-course-of-law principles, we decline to address her argument that the Agencies’ actions violated the Open Courts provision of the Texas Constitution. Because “the remedy for a denial of due process is due process,” Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 933 (Tex. 1995), we remand Mosley’s case to the Commission to allow Mosley an opportunity to file her motion for rehearing.

* * *

The trial court ruled on both the Agencies’ jurisdictional plea and Mosley’s appeal on the merits. Because the court of appeals concluded the trial court lacked jurisdiction, it did not consider the merits of Mosley’s case. We affirm the court of appeals’ judgment in part and reverse in *269 part. We do not remand the case to the court of appeals for reconsideration of Mosley’s appeal on the merits because we agree the trial court lacked jurisdiction to consider Mosley’s case in the first place. Instead, we direct the Health and Human Services Commission to reinstate Mosley’s administrative case to afford her an opportunity to seek rehearing of the order entered against her, thus allowing her to seek judicial review by the district court anew should the commission deny her motion for rehearing.

Justice Brown delivered the opinion of the Court.

Justice Busby joined.

James D. Blacklock Justice, Concurring

The government tried to end Patricia Mosley’s career. She may or may not have deserved it. This appeal has nothing to do with that question. Whether or not Mosley deserves to have the government end her career, the Texas Constitution guarantees her it won’t happen “except by the due course of the law of the land.” TEX. GOV’T CODE §§ 2001.001–.902. The complexity and expense of this perilous procedural journey no doubt convince many not to bother at all, including many who firmly believe their government has wronged them. But Mosley was not dissuaded. She pressed forward. And when she found herself in one of the minefield’s most dangerous spots, her government sent her what looked for all the world like a lifeline—a friendly letter telling Mosley how to avoid one of administrative procedure’s trickiest traps.

The finality of agency-level decision-making and the availability and timing of judicial review can be difficult questions even for lawyers to get right. For proof of that, we need look no further than the dozens of pages of briefing the parties devote to these questions and the sizeable section of the majority opinion their resolution requires. To its credit, the government was apparently so concerned with helping people like Mosley correctly navigate these vexing questions that it promulgated an administrative rule guiding them through the process. The government’s letter directed Mosley to that rule. “How helpful,” Mosley may have thought. “I may disagree with what my government is doing to me, but at least it wants me to understand how the process works so I can have a fair chance to make my case.” After all, who better than the very government that laid the mines to show people how to avoid them?

So Mosley did exactly as the letter and the rule instructed. She sought judicial review within 30 days of receiving the Hearing Order, which the letter said was final the day she received it. In so doing, she relied on a formal agency rule, adopted after notice and comment through the appropriate rulemaking procedures. Such rules have the force of law, we are told. Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1153 (10th Cir. 2016) (Gorsuch, J., concurring) (describing judicial deference to executive agencies on statutory meaning as “a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible—the decisionmaker promised to them by law—but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day”). And if the government thinks judges should defer to agency rules, then surely the government also thinks regular citizens can safely follow agency rules without worrying about whether they contradict the underlying statute. Apparently not.

Instead of helping Mosley avoid the procedural mines, it turns out the government’s letter—and its rule—instructed her to step right on top of one by pursuing judicial review without first seeking rehearing at the agency. And now the same government that asks courts to put our faith in agency rulemaking says a regular citizen like Mosley was naive to do so. According to the government, instead of simply following its administrative rule, Mosley should first have read Chapter 48 of the Human Resources Code. Then she should have read Chapter 2001 of the Government Code, because Chapter 48 of the Human Resources Code refers to it. Then she should have compared those statutes to the Administrative Code sections quoted in the government’s letter. Next, she should have correctly discerned that the Administrative Code sections quoted in the letter do not comport with the requirements of the Human Resources Code and the Government Code on the necessity of a motion for agency rehearing. After reaching that conclusion, she should have known that, even though in some sense the Administrative Code has “the force of law,” it is nevertheless inferior to statutes. She therefore should have followed the statutes instead of the rules and moved for rehearing at the agency before seeking judicial review.

Of course, the incorrect administrative rule the government told Mosley to follow only existed because the government itself did not interpret the Human Resources Code and the Government Code to require a motion for agency rehearing prior to judicial review. So the government’s position boils down to this: Mosley should have ignored our advice and then done a better job than we did of understanding our own administrative procedures. People already have plenty of reasons not to trust their government. Apparently now the government agrees it shouldn’t be trusted. And it invites this Court to say that those who do trust the government—even to know its own administrative procedures—may forfeit their right to judicial review of the government’s deprivation of their liberty. The Court rightly rejects that invitation. The history of this case gives Texans little reason to trust their government agencies, but hopefully the Court’s decision today helps to reinforce their trust in the Constitution.

It is often said that ignorance of the law is no defense. Perhaps not. But if ignorance of the law can’t be used defensively by Mosley, it also can’t be used offensively by the government. This is a not primarily a case about Mosley’s ignorance of the law. It is a case about the government’s ignorance of the law. Mosley is not claiming she can’t be held responsible for her ignorance of administrative procedure. She is claiming the government can’t hold her responsible for the consequences of its own ignorance. She is right. As the Court correctly holds today, article I, section 19 of the Texas Constitution prohibits the government *271 from affirmatively misleading people about their procedural rights and then blaming them for not knowing better. I join the Court’s opinion in full.


1 The Commission incorrectly cited the regulation it now concedes incorrectly stated the law.
2 See also AGAP Life Offerings, LLC v. Tex. State Sec. Bd., No. 03-11-00535-CV, 2013 WL 6464537, at *5 (Tex. App.—Austin Nov. 26, 2013, no pet.) (mem. op.).
3 We acknowledge these cases predate more recent holdings in which “we have been ‘reluctant to conclude that a [statutory] provision is jurisdictional, absent clear legislative intent to that effect.’ ” Tex. Mut. Ins. Co. v. Chicas, 593 S.W.3d 284, 2019 WL 1495202 (Tex. 2019) (concluding a 45-day deadline to seek review from an appeals-panel decision under section 410.252 of the Texas Workers’ Compensation Act is not jurisdictional).
4 The Agencies caution that this approach would “cut against this Court’s case law in the estoppel context holding that even if the government misleads an individual, ‘her failure to exhaust her administrative remedies is fatal to her action.’ ” (quoting id. (“As a general rule, a court cannot acquire subject-matter jurisdiction by estoppel.”). She concedes the trial court lacked jurisdiction if a motion for rehearing was required. Insisting her position “has nothing to do with estoppel,” Mosley instead argues the Agencies’ procedural due-process violation entitles her not to jurisdiction at the trial court, but to a belated opportunity to file the requisite motion for rehearing with the ALJ, thus allowing her a second chance to seek judicial review.
5 It is, instead, reminiscent of an infamous line from the 1978 film Animal House, which Otter uttered to Flounder. We paraphrase it for decorum’s sake: “Come on, Flounder. You can’t spend your whole life worrying about your mistakes. You [messed] up. You trusted us.” NATIONAL LAMPOON’S ANIMAL HOUSE (Universal Pictures 1978).
End of Document