The Texas government lied to Patricia Mosley. It told her to follow a specific law in order to challenge an administrative ruling issued against her. It now says that this specific law was wrong and that she should not have listened to the government’s instructions urging her to follow it. Because she did, Mosley is on the brink of being forever banned from the occupation of her choice. The only thing standing in the way of this injustice is the Texas Supreme Court.
In 2014, Texas regulators investigated Mosley for reportedly neglecting a disabled resident. Their investigation concluded that she had committed neglect that rose to the level of “reportable conduct.”
If left unchallenged, this finding would result in Mosley’s name being added to an “Employee Misconduct Registry” maintained by the Texas Department of Aging and Disability Services. The registry is essentially a blacklist: Anyone listed cannot be hired by a facility registered with the department, which includes thousands of nursing homes, assisted living facilities and other centers throughout the state. For Mosley, including her name in the registry would mean she would never be able to work as a home health aide again.
To challenge the finding, Mosley requested a hearing. But an administrative law judge ruled against her, ordering that her name be added to the registry.
If she wanted to challenge the decision, the administrative law judge told Mosley in the order, she would have to file a petition for judicial review in a Travis County district court within 30 days. The order also cited the regulations that outlined the process. So Mosley filed a petition in court, as any reasonable person would do when presented with official rules and a letter addressed directly to them by a judge.
The government then argued that Mosley lost her right of judicial review, rather than focusing on the merits of the case, because she petitioned a district court instead of applying for a rehearing in an administrative setting. The government said it provided her with wrong instructions and that its own regulations, on the books for 14 years, were also wrong. But it claimed that Mosley should have known not to trust the instructions and should have looked to a different law — one that requires an application for a rehearing — instead.
The Court of Appeals in Austin agreed with the government, ruling that Mosley is charged with knowing the correct law, even though the government itself expressly directed Mosley to follow a different one that it now says is wrong. Just like that, Mosley was stripped of her right to challenge the state’s finding against her.
But our Constitution forbids the government from treating people this way. As the U.S. Supreme Court and many lower courts have historically found, the Constitution guarantees the right of procedural due process, which, in addition to other things, means that the government cannot direct individuals to follow the wrong steps and then argue that they should have known to take the right ones. Moreover, the idea that individuals should be expected to know more about regulations than the government agencies responsible for enforcing them flouts basic notions of fair play and common sense.
Late last month, the Institute for Justice (where we work) filed an friend-of-the-court brief urging the Texas Supreme Court to hear Mosley’s case and make it clear that both the U.S. and Texas Constitutions function as a backstop against governmental abuse. A victory for Mosley would reaffirm the basic notion that the government cannot lie to people who are trying to assert their constitutional rights.