       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-17-00102-CV


                                 Martha Contreras, Appellant

                                                v.

               Texas Department of Family and Protective Services, Appellee


              FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
    NO. D-1-GN-15-002365, THE HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The parties have filed a joint motion to remand this case to the Texas Department

of Family and Protective Services based on the Texas Supreme Court’s opinion in Mosley

v. Texas Health & Human Services Commission, No. 17-0345, 2019 Tex. LEXIS 427 (Tex.

May 3, 2019). The parties represent that the jurisdictional facts in this case are similar to the

jurisdictional facts addressed in that case.    Except for our disposition of the trial court’s

judgment, we grant the motion and remand the case to the Department.

               Similar to the procedural posture of this case, Mosley did not file a motion for

rehearing before seeking judicial review of an agency’s final order after she received a letter

from the agency representing that a motion for rehearing was not required; the trial court denied

the agency’s plea to the jurisdiction but affirmed its order on the merits; and this Court reversed

and rendered judgment granting the plea to the jurisdiction and dismissing Mosley’s suit. See id.
at *5–10 (discussing procedural history of case); see also generally Mosley v. Texas Health

& Human Servs. Comm’n, 517 S.W.3d 346, (Tex. App.—Austin 2017), rev’d in part by Mosley,

2019 Tex. LEXIS 427. The Texas Supreme Court affirmed this Court’s holding that the trial

court lacked subject matter jurisdiction to consider Mosley’s appeal but held that the agency

violated Mosley’s due-course-of-law rights because “the notice sent to Mosley and the regulation

it quoted were so misleading as to prevent Mosley from filing the motion for rehearing that the

APA requires.”     2019 Tex. LEXIS 427, at *39. “Because ‘the remedy for a denial of due

process is due process,’” the Supreme Court reversed this Court in part and remanded Mosley’s

case to the agency to allow her the opportunity to file a motion for rehearing. Id. (quoting

University of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 933 (Tex. 1995)).

               In their motion, the parties request that this Court affirm the trial court’s judgment

in part, reverse it in part, and remand the case to the Department. Based on the parties’

representations, we grant the parties’ joint motion except as to our disposition of the trial court’s

judgment. Because the trial court did not have jurisdiction over Contreras’s suit, we vacate the

trial court’s judgment affirming the agency’s final order. See id. at *39–40 (agreeing that “trial

court lacked jurisdiction in the first place”). Consistent with the relief granted in Mosley and as

requested by the parties, however, we remand the case to the Department and direct the

Department to reinstate Contreras’s administrative case to afford her an opportunity to seek

rehearing of the order entered against her.       Id. at *40 (directing 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”).




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                                            __________________________________________
                                            Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Vacated and Remanded on Joint Motion

Filed: September 18, 2019




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