L.C. v. the Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: November 13, 2009
• Docket: 03-07-00055-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00055-CV

L.C., Appellant

v.

The Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-06-000484, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

CONCURRING OPINION

I concur in the judgment affirming the district court’s judgment dismissing

L.C.’s claims for want of subject-matter jurisdiction, but write separately because I do not join the

majority’s analysis in all respects. I also join in Justice Waldrop’s concurrence emphasizing

the “suspect” nature of the Department of Family and Protective Service’s (DFPS’s) procedures

governing the child-abuse registry and urging the policymaking branches to examine this

Star Chamber-like framework.

L.C. cannot obtain judicial review of DFPS’s determination of “reason to believe”

that she is a perpetrator of “child abuse” whose name must be placed in the central registry unless

a statute grants her that right or one or more of her constitutional rights are violated. See Texas Dep’t

of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 172 (Tex. 2004);

Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000). L.C. argues on appeal that she is entitled to judicial review under the Administrative Procedures Act

because DFPS’s decision to place her name and “designated perpetrator” status in the registry

determined her “legal rights, duties, or privileges . . . after an opportunity for an adjudicative

hearing” and, thus, was “a final decision in a contested case” subject to judicial review. See

Tex. Gov’t Code Ann. §§ 2001.003(1), .171 (West 2008). L.C. further asserts on appeal that she has

pled a valid “procedural” due-process claim predicated on infringements of her liberty and property

interests in pursuing her chosen profession in podiatric medicine and her liberty interests in parenting

her children. See Paul v. Davis, 424 U.S. 693, 711 (1976) (due-process claim cannot be predicated

on reputational harm alone, but requires that “a right or status previously recognized by state law was

distinctly altered or extinguished”).

Implicit in many of L.C.’s arguments is that DFPS’s decision to place her name

and findings in its child-abuse registry in itself implicates protected liberty or property interests

or determines her “legal rights, duties, or privileges.” However, L.C. does not point to any authority

for that proposition, and I agree with the majority that her claims must rest instead on some alleged

further consequence of the fact that the information is in the registry.1

1 In this respect, I agree with the majority that “[s]uch registries are constitutional.” L.C. v. Texas Dep’t of Family & Protective Servs., No. 03-07-00055-CV, slip. op. at 5 (Tex. App.—Austin Nov. __, 2009, no pet. h.) (mem. op.). Similarly, as the majority observes, L.C.’s complaint that DFPS failed to follow its own internal procedures in determining to place her name in its child-abuse registry would not in itself state a due-process violation because she has no protected liberty or property interest in the rules themselves. See Alford v. City of Dallas, 738 S.W.2d 312, 316 (Tex. App.—Dallas 1987, no writ).

2 In her live petition, construed liberally,2 the sole facts L.C. alleges concerning any

consequences of her status in the child-abuse registry are that the information “will adversely affect

Plaintiff’s ability to remain authorized and credentialed to practice medicine in hospitals, or be

authorized and credentialed by HMOs and PPOs,” and thereby “has harmed Plaintiff and has

hindered the liberty interest and property interest which the State and the United States Constitutions

grant to Plaintiff in her profession by placing at risk Plaintiff’s practice as a physician.”3 L.C. also

pleads facts and attaches evidence to the effect that she is required to disclose her status on the

registry through the credentialing process. L.C. alleges that the Texas Standard Credentialing

Application—a form promulgated by the Texas Department of Insurance pursuant to statutory

mandate4—requires her to self-report the findings and to sign an authorization permitting disclosure

of the information to third parties. L.C. attaches a copy of the application to her petition. As L.C.

suggests, it contains an authorization permitting “any third party, including, but not limited to, . . .

agencies” to release “information, including otherwise privileged or confidential information.” The

application also contains questions inquiring as to whether the applicant has “ever been the subject

of an investigation by any . . . licensing agency” and whether he or she has “ever been sanctioned

. . . by any federal or state regulatory agency.” DFPS did not present evidence to negate these facts.

2 See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 3 Thus, contrary to L.C.’s appellate briefing, L.C.’s live petition contains no allegations regarding any impact of her status on the child-abuse registry on her liberty interests in parenting her children. 4 See Tex. Ins. Code Ann. § 1452.052 (West 2009).

3 L.C.’s allegations that her status on the child-abuse registry, once disclosed through

the credentialing process, “will adversely affect Plaintiff’s ability to remain authorized and

credentialed to practice medicine in hospitals, or be authorized and credentialed by HMOs and

PPOs,” and “has . . . plac[ed] at risk Plaintiff’s practice as a physician” fall short of stating that the

State has infringed a cognizable liberty or property interest. See Siegert v. Gilley, 500 U.S. 226, 227-

29, 233-34 (1991); Paul, 424 U.S. at 708-09. Without more, L.C. has alleged only that her future

employment prospects will be diminished by the deleterious effect of the “child abuser” stigma,

not that the State has also caused legal consequences or tangible burdens to attach to her registry

status. Cf. Humphries v. County of Los Angeles, 554 F.3d 1170, 1185-92 (9th Cir. 2009). Nor

has L.C., who has already amended her pleadings once following the hearing on DFPS’s plea to

the jurisdiction, suggested how she might further amend her pleadings to cure the defect. See

Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839-40 (Tex. 2007).

For these reasons, I join in the majority’s judgment affirming the district court’s

judgment of dismissal.

__________________________________________

Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Waldrop

Filed: November 13, 2009