Motion For Rehearing Required For Judicial Review; Agency Misrepresentation Violates Due Process

What Happened

The Texas Supreme Court recently held that appellants seeking judicial review of an administrative order must file a motion for rehearing prior to seeking judicial review per the Texas Administrative Procedures Act (APA). And, an agency’s misrepresentation of the correct procedures to seek judicial review violates due process rights. Mosley v. Texas Health and Human Services Commn. and Texas Dept. of Fam. and Protective Services, 17-0345, 2019 WL 1977062 (Tex. May 3, 2019)

What It Means

With this decision, the Court makes clear that – unless exempted[1]– those subject to an adverse ruling by an administrative law judge must file a motion for rehearing before appealing the ruling to a district court in Travis County. It specifically states that the “APA’s motion for rehearing requirement applies to judicial review of all agency orders barring explicit statutory indication to the contrary.” Id.“[S]ilence in an agency’s enabling legislation as to a motion-for-rehearing requirement does not exempt the agency from the APA’s general applicability.” Id.

Further, agencies cannot mislead appellants as to the procedures for appeal[2]. The Court noted that while ignorance of the law as a defense certainly stands, due process nevertheless places limits on that principle. And, the failure to give adequate notice has long been a violation of due process of law. A distinguishing point made by the Court was that misinforming is not the same as failing to inform. Explicitly misleading an appellant as to his or her rights may violate due process; failure to provide information may not.

The Takeaway

Accordingly, despite the Court’s holding on agency misrepresentation, the best way to obviate foreclosure of judicial review is to move for rehearing. Then, you have exhausted the statutory remedies thereby conferring jurisdiction on a trial court to review the order.

Read More

If you would like further information on the factual and procedural background of the decision and the Court’s reasoning, you can read the case here.


[1] The APA does not apply to a rule or procedure of the Texas Department of Criminal Justice or Texas Board of Criminal Justice, a contested case hearing before SOAH regarding contract disputes, and a decision on non-renewal of a teacher’s contract.

[2] A letter accompanying the decision specifically indicated that to request judicial review Mosley needed to file a petition within 30 days. It did not mention that she needed to file a motion for rehearing before seeking judicial review.

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