                                                                                              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,
                                       v.
                   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




                                        ii
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]




                                           iv
                                          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

                                                              v
         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




                                                            vi
                                       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.




                                   ix
                      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?




                                          x
                          CAUSE NO. 03-16-00473-CV

                        IN THE COURT OF APPEALS
                    FOR THE THIRD DISTRICT OF TEXAS
                             AUSTIN, TEXAS

                                       E. A.,
                             Appellant/Cross-Appellee,
                                          v.
                     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.




                                         2
       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).




                                          3
                       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


                                           4
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


                                          5
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.




                                          6
      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


                                         7
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


                                          8
        (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.




                                           9
      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




                                          10
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

                                          11
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


                                           12
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.


                                          13
                         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




                                          14
                                      /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




                                        15
                         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




                                        16
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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                                                                                                                r.::
E.A.,                                                                   §       IN THE DISTRICT COURT OF     ll)
                                                                                                             ·-::I
                                                                                                             Co
        Plaintiff,                                                      §                                    o.;U
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                                                                        §                                    I-·-
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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.

                                                                    JU                 K




        I004665294
          llllll lllll lllll lllll lllll lllll lllll lllll lllll llll llll



                                                                  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
End of Document                                         © 2016 Thomson Reuters. No claim to original U.S.
                                                                                    Government Works.




              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                           1
§ 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


              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                         1
§ 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


       (C) does not include a statement regarding only the internal management or organization of a state
      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;


       (C) the courts;


       (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
1

        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
End of Document                                        © 2016 Thomson Reuters. No claim to original U.S.
               © 2016 Thomson Reuters. No claim to original U.S. Government Works.                       2
§ 2001.003. Definitions, TX GOVT § 2001.003




                                                                                    Government Works.




              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                  3
§ 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
              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                            1
§ 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
End of Document                                         © 2016 Thomson Reuters. No claim to original U.S.
                                                                                    Government Works.




              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                      2
§ 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
End of Document                                          © 2016 Thomson Reuters. No claim to original U.S.
                                                                                     Government Works.




              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                        1
§ 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
End of Document                                        © 2016 Thomson Reuters. No claim to original U.S.
                                                                                   Government Works.




              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                     1
§ 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.


 (c) A Travis County district court in which an action is brought under this section, on its own motion or
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

              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                         1
§ 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
End of Document                                            © 2016 Thomson Reuters. No claim to original U.S.
                                                                                       Government Works.




              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                            2
§ 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.


 (c) Repealed by Acts 2011, 82nd Leg., ch. 1056 (S.B. 221), § 17.



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
End of Document                                          © 2016 Thomson Reuters. No claim to original U.S.

              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                                 1
§ 48.405. Hearing; Order, TX HUM RES § 48.405




                                                                                    Government Works.




              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                  2
§ 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.


 (c) Judicial review of the order:


   (1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code;1
              © 2016 Thomson Reuters. No claim to original U.S. Government Works.                                 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
1

          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
End of Document                                          © 2016 Thomson Reuters. No claim to original U.S.
                                                                                     Government Works.




                © 2016 Thomson Reuters. No claim to original U.S. Government Works.                     2
   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.
  (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.

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
