Texas Health and Human Services Commission v. Jessica Canto

Reversed and Rendered and Memorandum Opinion filed August 28, 2025.

In The

Fifteenth Court of Appeals

NO. 15-24-00080-CV

TEXAS HEALTH AND HUMAN SERVICES COMMISSION, Appellant
V.

JESSICA CANTO, Appellee

On Appeal from the 200th District Court,
Travis County, Texas
Trial Court Cause No. D-1-GN-19-008542

MEMORANDUM OPINION

The administrative law judge’s (ALJ) order affirmed the Health and Human
Services Commission’s (HHSC) decision that Jessica Canto committed reportable
neglect in her duties at a State Supported Living Center. The trial court reversed the
ALJ’s order. The question before us is whether the ALJ’s order was supported by
substantial evidence. Because it was and the district court nevertheless reversed it,
we reverse the district court’s judgment and render judgment reinstating the ALJ’s
order.
FACTUAL BACKGROUND

Canto worked at the State Supported Living Center in Corpus Christi as a
Direct Support Professional-IV. In November 2018, Canto agreed to provide one-
to-one care for a resident we will refer to as J.S. J.S. suffered from an intellectual
disability, schizophrenia, post-traumatic stress disorder, and intermittent explosive
disorder. J.S. was known to be aggressive and had previously caused harm to staff
members and to property, sometimes using a fire extinguisher as a weapon.

As part of providing one-to-one supervision to J.S., on November 4, 2018,
Canto agreed to and signed a level-of-supervision sheet stating that there were to be
no physical barriers between her and J.S. at any time. J.S.’s Positive Behavior
Support Plan included a list of targeted behaviors in J.S. for the one-to-one
supervision, including physical and verbal aggression and property destruction.
According to the Plan, the functional replacement behavior for aggression or
property destruction was for J.S. to ask for space or a break. During this replacement
behavior, including asking for space, anyone could leave J.S. except for his one-to-
one supervisor. The Plan also called for interventions with J.S. if he became
aggressive or destructive, which included telling him to stop or put the weapon
down, inviting him to a different environment to burn off energy, standing between
him and his targets, and the use of restraint protection skills. Canto testified she was
familiar with this Plan.

During her one-to-one supervision of J.S., however, Canto admits she allowed
physical barriers between her and J.S. when he became particularly agitated and
aggressive. Responding to J.S.’s request for space and claiming he threatened her,
Canto followed J.S. in a van and watched him while he walked the facility’s grounds.
During Canto’s time observing him from the van, J.S. went to an outdoor pavilion
on the property and obtained a fire extinguisher. J.S. then proceeded into a residence

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facility with the fire extinguisher while Canto watched from the van and then later
watched him from outside a closed door through a window. Canto later went in to
the building where J.S. was, but remained in a hallway while he entered another
room with the fire extinguisher with other residents present. Eventually, other
workers helped obtain the fire extinguisher from J.S. before anyone was harmed.

HHSC initiated an investigation into the incident, which included review of a
video of the incident with Canto, gathering exhibits, and taking statements from
multiple witnesses. At the conclusion of the investigation, HHSC found that Canto
neglected individuals receiving services at the facility by allowing barriers between
herself and J.S., which could have led to harm to J.S. or to other residents. HHSC’s
investigation led to a recommendation that Canto’s name be placed on the
Employment Misconduct Registry for reportable neglect. See Tex. Hum. Res. Code
§ 48.403; Tex. Health & Safety Code § 253.007. Canto challenged HHSC’s
conclusion and was granted a contested case hearing before an ALJ who reviewed
the evidence, including evidence that Canto believed she was in danger at the time
she allowed a barrier between her and J.S., and heard testimony from witnesses on
both sides. See Tex. Hum. Res. §§ 48.404(b), .405. The ALJ agreed that Canto
committed reportable conduct. Canto filed a motion for rehearing based on her
belief that she was in danger from J.S., which the ALJ denied by written order.
Canto then filed a suit for judicial review before a Travis County district judge, who
reversed HHSC’s order. HHSC then filed this appeal.

ANALYSIS

I. The substantial evidence standard of review applies.

Canto contends that the standard of review in this appeal differs from the usual
review of an agency ruling because the proceeding below is “quasi-criminal” and
used a preponderance of the evidence standard. Canto contends that case law
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relating to the substantial evidence standard do not apply because they “all deal[ ]
with administrative decisions.”

As HHSC points out, Canto has confused the burden of proof at the agency
level with the standard of review on appeal. While Canto is correct that it was
HHSC’s burden of proof to demonstrate at the contested case hearing that Canto
committed neglect and that the neglect constituted reportable conduct, on review of
the ALJ’s decision in the trial court and on appeal, the standard is substantial
evidence, and the burden of proof is Canto’s. Tex. Gov’t Code § 2001.174; Tex.
Comm’n on Env’t Quality v. Maverick Cnty., 642 S.W.3d 537, 547 (Tex. 2022).
Canto is entitled to appeal the ALJ’s order, but the Administrative Procedure Act
governs that appeal. Tex. Hum. Res. Code § 48.406(c).

In applying the substantial evidence standard, a court “may not substitute [its]
judgment for the judgment of the state agency on the weight of the evidence.” Dyer
v. Texas Comm’n on Env’t Quality, 646 S.W.3d 498, 514 (Tex. 2022). In assessing
whether the agency’s decision is “reasonably supported by substantial evidence,”
Tex. Gov’t Code § 2001.174(2)(E), the issue is not whether the agency’s decision is
correct, but only whether the record demonstrates some reasonable basis for the
decision. Maverick Cnty., 642 S.W.3d at 544 (“The true test is not whether the
agency reached the correct conclusion, but whether some reasonable basis exists in
the record for the action taken by the agency.”) (quoting Texas Health Facilities
Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984)). Neither
we nor the trial court may substitute our judgment for the judgment of the state
agency on the weight of the evidence. Dyer, 646 S.W.3d at 514. Instead, “[w]e
must uphold the agency’s ultimate decision if the evidence ‘is such that reasonable
minds could have reached the conclusion that the agency must have reached in order
to justify its action.’” Id. (quoting Charter Med.-Dallas, Inc., 665 S.W.2d at 453).

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The agency’s findings, inferences, conclusions, and decisions are presumed
to be supported by substantial evidence, and the burden is on the contestant to
demonstrate otherwise. Maverick Cnty., 642 S.W.3d at 547; Upper Trinity Reg’l
Water Dist. v. Nat’l Wildlife Fed’n, 514 S.W.3d 855, 861 (Tex. App.—Houston [1st
Dist.] 2017, no pet.). Whether the contestant has met this burden is a question of
law, see Dyer, 646 S.W.3d at 505, and on review, we focus on the agency’s decision
without deference to the trial court’s judgment, see Texas Dep’t of Pub. Safety v.
Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam) (noting that appellate court
applies substantial evidence review without deference to district court).

II. Substantial evidence supports the ALJ’s order.

A. Substantial evidence supports the ALJ’s finding of reportable neglect.

The Human Resources Code defines “reportable conduct” as “abuse or
neglect that causes or may cause death or harm to an individual receiving agency
services.” Tex. Hum. Res. Code § 48.401(5)(A). In the proceedings below, it is not
alleged that Canto abused J.S. Rather, the question was whether Canto’s conduct
met the definition of “neglect.”

When, as here, the reported person is a direct provider, “neglect” means “a
negligent act or omission which caused or may have caused physical or emotional
injury or death to an individual receiving services or which placed an individual
receiving services at risk of physical or emotional injury or death.” 40 Tex. Admin.
Code § 711.19(a) (2016).1 As an example of what constitutes neglect, the rule
provides an example that is particularly applicable to the facts before us: “The
failure to establish or carry out an appropriate individual program plan or treatment
plan for a specific individual receiving services . . . which placed an individual

1
This provision has been transferred to 26 Tex. Admin. Code § 711.19.
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receiving services at risk of physical or emotional injury or death.” Id.
§ 711.19(b)(1).

Here, the ALJ concluded that HHSC met its burden of proof on the question
of neglect based on evidence that Canto allowed physical barriers between her and
J.S. while required to provide one-to-one supervision and that Canto’s actions placed
J.S. and other residents at a significant injury risk. The first issue we must decide,
then, is whether the ALJ could have reasonably reached this conclusion based on the
evidence before her. We conclude substantial evidence supports the ALJ’s order.

Canto admitted before the ALJ that the one-to-one care she agreed to provide
J.S. required no physical barriers between them at any time. She also admitted
during her testimony, that she allowed physical barriers between her and J.S. at least
three times: when she watched J.S. from a van while he obtained a fire extinguisher,
when she watched from a van and then through a closed door as J.S. entered a
residence facility with the fire extinguisher, and again when she remained in the
hallway while he entered another room with the fire extinguisher. This evidence is
largely undisputed and supports the ALJ’s order. In addition, another Behavioral
Health Specialist at the facility in 2018, Paige Kramer, testified that it was improper
for Canto to allow barriers between her and J.S. Kramer also testified that it was
improper for Canto to break one-to-one contact even if Canto feared for her own
safety. Three other witnesses also testified for HHSC, while two witnesses testified
in support of Canto, in addition to Canto herself. The ALJ also considered numerous
exhibits, including the videotape of the incident, Canto’s written statement, and the
investigation report from the incident.

The evidence is sufficient to constitute substantial evidence on which the ALJ
could have reasonably based her order, regardless of the evidence Canto presented
in her defense. Canto admitted that she allowed barriers between her and J.S., that

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she knew one-to-one supervision required no barriers, and knew that a one-to-one
supervisor was not allowed to leave even if the resident, in this case J.S., requested
he be given space. The video of the incident corroborated Canto’s testimony, and
Kramer testified that Canto’s behavior violated applicable rules and constituted
neglect.

Canto, of course, presented evidence to the contrary. But it is up to the ALJ
to determine the credibility of the witnesses and evidence before it, and courts are
not to second-guess such credibility determinations or to weigh competing evidence
presented to the ALJ. Dyer, 646 S.W.3d at 514. Our decision is merely whether
there is sufficient evidence to support the ALJ’s decision and, here, there is.

B. Substantial evidence supports the ALJ’s refusal to apply the imminent
harm exception.
Canto contends that even if there is substantial evidence of neglect in the
administrative record, an exception should have applied to her case. Specifically,
Rule 711.23 provides that “neglect” does not include “actions that a direct provider
may reasonably believe to be immediately necessary to avoid imminent harm to self,
individuals receiving services, or other individuals provided the actions are limited
only to those actions reasonably believed to be necessary under the existing
circumstances.” 40 Tex. Admin. Code § 711.23(3) (2017). Canto contends that J.S.
threatened her and that she believed his threats because he had already attacked two
other staff members. Moreover, the record shows that Canto stands 4’ 11’’, while
J.S., a male, is 6’ 3” and weighs significantly more than Canto.

Canto contends that if she subjectively believed she had to allow a barrier
between her and J.S. to avoid imminent harm to herself, then she cannot be found to
have committed neglect under this Rule. HHSC, contends, however, that this
exception must be reviewed under an objective standard, not a subjective one, for

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what “a direct provider” may have “reasonably believed to be necessary under the
existing circumstances.” We agree.

Based on the record before her, the ALJ could have reasonably concluded that
Canto’s actions were not objectively reasonable even if she subjectively felt
threatened. At the administrative hearing, Canto’s attorney read the text of Rule
711.23(3) to Kramer, whom J.S. had previously attacked with a fire extinguisher,
and asked if the exception should apply to Canto’s actions. Kramer responded that
the video of the incident raises questions about Canto’s judgment when allowing J.S.
to enter the building with a fire extinguisher while Canto watched from outside.
According to Kramer, allowing J.S. some space did not mean that Canto was
justified in allowing physical barriers between Canto and J.S. such that Canto could
not protect other residents. Kramer testified that Canto’s actions were unreasonable
under the circumstances.

To be sure, Canto testified that her actions were reasonable in light of the
threat she felt, and other witnesses on her behalf agreed with her. But it is not up to
this Court, just as it was not up to the trial court, to second-guess the ALJ and weigh
the evidence ourselves. Again, it is up to the ALJ to weigh the credibility of
witnesses and other evidence, Dyer, 646 S.W.3d at 514, and here, the ALJ had
sufficient evidence to reasonably conclude that it was not reasonable for Canto allow
physical barriers between herself and J.S. during the incident, even if she felt
threatened personally. 2 As such, the trial court erred in reversing the ALJ’s order.

2
Canto contends that the ALJ did not consider her evidence or argument that the exception
applies. On the contrary, the record reveals that Canto’s lawyer raised the exception when cross-
examining Kramer. Her lawyer also relied on the exception in Canto’s motion for rehearing before
the agency, which the ALJ denied by written order.
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CONCLUSION

Substantial evidence supports the ALJ’s order. We accordingly reverse the
trial court’s judgment and render judgment reinstating the ALJ’s order.

/s/Scott K. Field
Scott K. Field
Justice

Panel consists of Chief Justice Brister and Justices Field and Farris.

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