Attorney General: HHSC courts are not “trial courts” and HHSC judges are not “judges”

court of lawThis week the Texas Attorney General filed a remarkable brief to oppose the motion to disqualify HHSC judge Rick Gilpin from a Medicaid payment hold case because he was a senior lawyer in the Attorney General’s office for some 38 years before becoming an administrative law judge with HHSC.  The motion to disqualify was brought by lawyers for M&M Ortho of San Antonio.  It relied on the Texas Constitution provision that judges who were counsel on cases earlier relating to the involved parties should be disqualified because they cannot be seen as impartial.

The OAG’s brief made the initial argument that Gilpin despite a long career in the OAG never was involved with the Civil Medicaid Division, therefore should not be disqualified.  His career started with the AG’s office in 1974 and ended with his retirement in December of 2012 from the position of Assistant Attorney General of the AG’s Opinion Committee.

Gilpin not a “judge” under the Texas Constitution nor Rules of Civil Procedure

But the Attorney General’s brief went further.

It made the further argument that agency courts like those of HHSC are not covered by the Texas Constitution nor the common law and therefore are not real courts and that a judge like Rick Gilpin is not a real “judge.”  Therefore provisions within the Constitution and the Texas Rules of Civil Procedure that relate to judicial impartiality do not apply to them.

The brief in part states:

“The HHSC Appeals Division is not one of the courts listed in Article V [of the Texas Constitution]. Nor is it a court established by the legislature. It is therefore not a “court” vested with “judicial power” …

“M&M also relies on Rules of Civil Procedure 18a and 18b in support of its Motion. These Rules are inapplicable for the same reasons that Article V is inapplicable…

“Because an administrative agency is not a “trial court,” and ALJ Gilpin is not a “judge” within the meaning of TRCP [Texas Rules of Civil Procedure] 18a and 18b, these rules do not apply.”

What? Then how can HHSC judges overrule judges that are constitutional?

If the HHSC Appeals division is not subject to the Texas Constitution nor the Texas Rules of Civil Procedure, the common law, to what are they subject?  The OAG apparently has given the opinion that HHSC is a law unto itself and not subject to the presumed checks and balances of constitutional guarantees.

Or conversely, if one views it from another angle, the OAG argument throws into question any ruling by any HHSC judge or court because it, in effect, invalidates those entities as lawful venues and actors.

If HHSC judge Gilpin is not a real “judge”, how can he overturn a decision from SOAH judges who are real judges because SOAH was setup by the Texas legislature and is therefore subject to the Texas Constitution?  SOAH was created in 1991 by the Texas Legislature as a neutral, independent forum where Texas agencies or other governmental entities and private citizens or entities can resolve legal disputes.  SOAH is to conduct fair and objective administrative hearings and provide timely and efficient decisions.  Tex. Gov’t Code Ann. § 2003.021 

What a dangerous thing for Texas and Texas Medicaid providers.

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