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Horton v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 18, 2017

RODERIC HORTON, Appellant,
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.

         On appeal from the 419th District Court of Travis County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa.

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice

         Appellant Roderic Horton appeals from the trial court's order granting a plea to the jurisdiction filed by appellee Texas Department of Family and Protective Services (the Department). By four issues which we address as three, Horton contends that the trial court erred when it concluded that it lacked jurisdiction because: (1) a motion for rehearing is not required before an individual can seek judicial review under the Texas Administrative Procedure Act (APA); (2) the Department, by its own conduct, waived immunity or created jurisdiction by estoppel; and (3) the Department's conduct resulted in the violation of his due process rights. We affirm.[1]

         I. Background

         On July 10, 2013, after completing an investigation of an incident involving Horton, the owner and operator of 4 Corners Residential Services, the Department notified Horton that it had determined that he had exploited an adult with disabilities.[2] The Department informed Horton that it intended to send his name to the Texas Department of Aging and Disability Services (DADS) for placement on the Employee Misconduct Registry (EMR).[3]See Tex. Health & Safety Code Ann. § 253.007 (West, Westlaw through 2015 R.S.) (establishing EMR and requiring DADS to make it publicly available).

         Horton timely requested an administrative appeal hearing to challenge the finding of exploitation. On May 13, 2015, a hearing was held before the administrative law judge of the State Office of Administrative Hearings. See Tex. Hum. Res. Code Ann. § 48.405 (West, Westlaw through 2015 R.S.). Horton represented himself at the hearing.

         On June 15, 2015, the administrative law judge issued a final order, sustaining the Department's determination. On that same day, the administrative law judge sent Horton a copy of the order and a notice letter, informing him of the following:

The Texas Administrative Code at 40 T.A.C. § 711.1431 provides, in pertinent part, as follows:
(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, 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 Government Code, Chapter 2001, Subchapter G.
(d) Unless notice of petition for judicial review is served on [the Department] within 45 days after the date on which the Hearing Order is mailed to the employee, [the Department] will submit the employee's name for inclusion in the Employee Misconduct Registry. lf valid service is received after the employee's name has been recorded in the registry, [the Department] will immediately request that the employee's name be removed from the registry pending the outcome of the judicial review.
Your only recourse at this point, should you wish to challenge this decision is to file such a suit. Service of process should be made on Mr. John Specia, Jr., Commissioner of the Texas Department of Family and Protective Services, 70 l W. 51st Street, Austin, Texas 78751.

         The notice informed Horton of available judicial review. It did not inform Horton about the need to file a motion for rehearing.

         On July 15, 2015, without having filed a motion for rehearing with the agency, Horton filed his petition, seeking judicial review in a Travis County district court. In his petition, Horton argued that the EMR pertains to employees; therefore, his name should not be reported to EMR because it was his company, not Horton individually, that received benefits, if any. Horton pleaded that the trial court had jurisdiction under the APA. See Tex. Hum. Res. Code Ann. ยง 48.406(b) (West, Westlaw through 2015 R.S.). The Department filed a plea to the jurisdiction, asking the court to dismiss Horton's suit for lack of subject matter jurisdiction because Horton failed to exhaust his administrative remedies by not filing a motion for rehearing. In response, Horton amended his petition to include claims for waiver and estoppel. He also added a due process violation, alleging that the Department misled him by "intentionally and fraudulently misrepresenting to him that a petition for judicial review could be filed without any requirement of a rehearing" and by notifying him that a petition for ...


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