CourtListener 4673370•Cheryl Wallace v. Texas Department of Family and Protective Services
Cheryl Wallace v. Texas Department of Family and Protective Services
CourtListener 4673370Tex25.10.2019
Gesamter Gesetzestext
IN THE SUPREME COURT OF TEXAS
══════════
No. 17-0428
══════════
CHERYL WALLACE, PETITIONER,
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, RESPONDENT
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
══════════════════════════════════════════
PER CURIAM
We recently held that, under the Administrative Procedures Act, a party seeking judicial
review of an administrative order must first move for rehearing before the administrative law
judge, unless another governing statute provides otherwise. Mosley v. Tex. Health & Hum. Servs.
Comm’n, ___ S.W.3d ___, ___ (Tex. 2019). An agency’s affirmative misrepresentation of the
proper procedure for judicial review, however, may violate a party’s right to due process. Id. at
___.
This appeal presents the issues decided in Mosley. The court of appeals concluded in this
case that the trial court lacked jurisdiction because Wallace did not move for rehearing before the
administrative law judge, and it rejected Wallace’s due-process challenge based on the agency’s
misrepresentation of the proper procedure for judicial review. ___ S.W.3d ___ (Tex. App.—Austin
2017). We agree that the trial court lacked jurisdiction because Wallace did not seek rehearing of
the order she challenges before the administrative law judge. But because, as in Mosley, the agency
misrepresented the proper procedure for judicial review in a letter to Wallace, we hold that Wallace
was denied due process.
For the reasons expressed in Mosley, we grant Wallace’s petition for review and, without
oral argument, reverse in part. See TEX. R. APP. P. 59.1. We hold that the government violated
Wallace’s due-course-of-law rights under the Texas Constitution. TEX. CONST. art. I, § 19. 1
Because “the remedy for a denial of due process is due process,” Univ. of Tex. Med. Sch. v. Than,
901 S.W.2d 926, 933 (Tex. 1995), we direct the Department of Family and Protective Services, or
its designee, see TEX. HUM. RES. CODE § 48.405(a), to reinstate Wallace’s administrative case and
afford her an opportunity to seek rehearing of the order she challenges before the administrative
law judge.
OPINION DELIVERED: October 25, 2019
1
“While the Texas Constitution is textually different in that it refers to ‘due course’ rather than ‘due process,’
we regard these terms as without meaningful distinction” and thus “have traditionally followed contemporary federal
due process interpretations of procedural due process issues.” Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929
(Tex. 1995).
2
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