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Baker Botts Wins Due Course of Law Case at The Supreme Court of Texas


AUSTIN, May 6, 2019 - On May 3, 2019, the Texas Supreme Court held that the Texas Health and Human Services Commission (HHSC) violated firm client Patricia Mosley’s right to due course of law (the Texas constitutional equivalent to due process) when it misrepresented to her the proper procedures required to seek judicial review of an administrative order.  After ruling against her in an administrative disciplinary proceeding, the HHSC’s hearing examiner advised her, in conformity with a formally promulgated agency rule, that she could obtain judicial review of the ruling by filing suit within 30 days in Travis County district court.

Ms. Mosley followed these instructions and timely brought suit.  In response, HHSC claimed that the district court lacked jurisdiction to hear the case because Ms. Mosley did not first seek rehearing in the agency as required by the state Administrative Procedures Act.  The district court accepted jurisdiction but affirmed the agency’s ruling, but the court of appeals dismissed her appeal and her underlying suit for want of jurisdiction.

The Texas Supreme Court reversed, returning the case to the agency so that Ms. Mosley can seek rehearing.  Its unanimous opinion concluded that the letter and the agency rule it quoted were so misleading that they prevented the challenger from following the correct procedure for judicial review.  The Court indicated that the HHSC’s position was “reminiscent of an infamous line from the 1978 film Animal House, which Otter uttered to Flounder. […] ‘Come on, Flounder. You can’t spend your whole life worrying about your mistakes.  You [messed] up. You trusted us.’”  A three-justice concurrence was even more blunt: “The history of this case gives Texans little reason to trust their government agencies, but hopefully the Court’s decision today helps to reinforce their trust in the Constitution.”

The Court’s opinion is not only important for cementing the principle that agencies cannot trick litigants out of their right to judicial review. It is also important because it will directly affect at least five other cases pending before Texas courts that involve essentially identical issues.

“We’re very pleased with the outcome,” said Stephanie Cagniart, an attorney representing Ms. Mosley.  “The Court’s opinion is an important reminder to state agencies that all Texans are entitled to due process and due course of law in their dealings with the government.”

The case is Mosley v. Texas Health and Human Services Commission, No. 17-0345 (Tex. May 3, 2019).  Oral argument before the Court was made by Baker Botts attorneys Stephanie Cagniart and Kevin Vickers.

Tom Phillips (Partner, Austin), Evan Young (Partner, Austin), Stephanie Cagniart (Senior Associate, Austin), and Kevin Vickers (Special Counsel, San Francisco) handled the case at the Texas Supreme Court.  Paulina Williams (Partner, Austin), Samia R. Broadaway (Associate, Austin), and Kevin Vickers handled the case at the district court and the court of appeals.  At the Supreme Court, the Institute for Justice, a public interest firm, filed an amicus curiae brief that exhaustively discussed supporting authorities from other jurisdictions to support Ms. Mosley’s constitutional claims.

Baker Botts is an international law firm whose lawyers practice throughout a network of offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit

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