
Opinion issued December 9, 2004


     






In The
Court of Appeals
For The
First District of Texas




NO. 01-02-01108-CV




TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

a/k/a LIBERTY COUNTY CHILD PROTECTIVE SERVICES, Appellant

V.

RACHEL ATWOOD AND JONATHAN OLIVER ATWOOD SR.,
INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN
OLIVER ATWOOD JR., CHANCE ATWOOD, A MINOR, AND
CHRISTOPHER ATWOOD, A MINOR, Appellees




On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 01-14132




OPINION  DISSENTING  FROM  
DENIAL  OF  EN  BANC CONSIDERATION

          In this important case of first impression, the panel holds that the Texas Tort
Claims Act
 does not waive the Texas Department of Family and Protective Services’
(DFPS’s) sovereign immunity to liability for claims arising from the death or injury
of a child caused by the use of tangible property or by a premises defect in a licensed
foster home.  Because of the potentially far-reaching effects of the opinion in this
case on the protections afforded children in the custody of the State and the liability
of foster parents and licensed child-care facilities, I respectfully dissent from denial
of en banc consideration.  See Tex. R. App. P. 41.2(c).  I would affirm the trial court’s
denial of DFPS’s plea to the jurisdiction and remand for further proceedings in
accordance with this opinion.
          As the panel acknowledges, the State, its agencies, and its subdivisions enjoy
sovereign immunity to tort liability unless immunity has been waived.  Tex. Civ.
Prac. & Rem. Code Ann. §§ 101.001(3)(A-B), 101.025 (Vernon Supp. 2004-2005);
County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002).  The Tort Claims Act
expressly waives sovereign immunity in three general areas: (1) injury caused by an
employee’s use of a motor-driven vehicle, (2) injury caused by a condition or use of
tangible personal or real property, and (3) injury caused by a premises defect.  Tex.
Civ. Prac. & Rem. Code Ann. §§ 101.021–101.022(a) (Vernon Supp. 2004-2005);
Brown, 80 S.W.3d at 554. 
          The question before this Court is whether the Atwoods have pleaded claims
that fall within the Tort Claims Act’s waiver of immunity because (1) their pleadings
allege that an employee or employees of DFPS (a) caused the Atwoods’ injuries by
the use or misuse of tangible personal or real property or (b) provided property that
lacked an integral safety component and the lack of this integral safety component led
to the Atwoods’ injuries or (2) the pleadings state a claim for a premises defect by
adequately alleging that an employee or employees of DFPS, acting within the scope
of their DFPS duties, (a) breached a duty not to injure the Atwoods through willful,
wanton, or grossly negligent conduct or (b) had knowledge of a dangerous condition
that the Atwoods did not have and had a duty to warn the Atwoods or to make the
condition reasonably safe, but did not.
Adequacy of the Atwoods’ Pleadings
          Three-year-old Jonathan Atwood drowned in the swimming pool of a licensed
agency foster home owned by the Roe family in which he had been placed by DFPS.
          The Atwoods pleaded that DFPS and its employees, including the Roes
themselves and those employees named in the petition who were assigned to license,
to inspect, and to supervise the Roes’ foster home, all “were acting within the course
and scope of their office or employment and had a duty to exercise ordinary care and
use the above-ground swimming pool, the deck, the deck furniture, the door locks,
the failure to use a gate blocking access to the above-ground swimming pool and/or
deck, and the motion detector reasonably and prudently and to provide all integral
safety components”; they further pleaded that DFPS, acting through those employees,
breached those duties, proximately causing the Atwoods’ injuries.
          The Atwoods further pleaded that the deck attached to the back of the Roe
home and extending to the swimming pool, to which the deck provided open access,
constituted a premises defect in that it presented an unreasonable risk of harm that a
reasonably prudent person would have foreseen; that DFPS, through its employees,
exercised control over the Roe home and/or the pool area; that DFPS owed the
Atwoods a duty not to injure them through willful, wanton, or grossly negligent
conduct; and that DFPS breached that duty.  Finally, the Atwoods pleaded that DFPS,
through its employees, had knowledge of the dangerous condition and had a duty to
warn them or to make the condition reasonably safe, and that it breached this duty,
proximately causing the Atwoods’ injuries.
          Although the Atwoods’ pleadings appear to place their claims squarely within
the Tort Claims Act’s waiver of sovereign immunity, the panel opines that section
101.021(2) waives immunity for a use of tangible property only if the governmental
unit is itself the user, and it reasons that DFPS was not a “user” of personal or real
property at the foster home where Jonathan Atwood drowned because the Roes
owned the home and above-ground pool and they were not DFPS employees as that
term is defined by the Tort Claims Act.  I respectfully disagree with the panel’s
conclusion that the Roes were not DFPS employees or agents; and I also disagree
with the panel’s conclusion that only the Roes were “users” of the property for DFPS
purposes—i.e., for foster care and all of the duties arising out of the foster care
relationship between the Roes and DFPS—and not DFPS, which licensed the Roes’
home as a child-care facility, placed the Atwood children in the Roes’ home as an
agency foster home, and retained statutory rights and duties to supervise and inspect
the home and to enforce legislative and agency standards.
          The panel also opines that the waiver of sovereign immunity for a premise
defect set out in sections 101.021 and 101.022(a) of the Tort Claims Act does not
apply because, to be liable for a premises defect, the agency must control the premises
and the Roes, who were not DFPS employees, rather than the agency itself, controlled
the premises.  Again, I respectfully disagree.  I would hold that the Roes, as paid
foster parents, were “employees” of the agency and that, through the Roes and other
employees, DFPS did control the premises of the foster home.


Waiver of Immunity Based on “Use”of Tangible Real or Personal Property
by Government Employees Acting Within the Scope of Employment

          I would hold that the Roes were  DFPS “employees” and that the Atwoods have
adequately pleaded claims for the use or misuse of tangible personal or real property
by DFPS employees for which the Tort Claims Act waives sovereign immunity. 
          Definition of Government Employee
          The panel concludes that, as foster parents, the Roes do not meet the definition
of government employees under the Tort Claims Act and thus cannot have been
acting within the scope of their duties as DFPS employees in operating a licensed
child-care facility. The Tort Claims Act defines a government “employee” as:
a person, including an officer or agent, who is in the paid
service of a governmental unit by competent authority, but
does not include an independent contractor, an agent or
employee of the independent contractor, or a person who
performs tasks the details of which the governmental unit
does not have the legal right to control.

Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2).  The panel concludes that the
Roes were not “employees” of DFPS as that term is defined in the Tort Claims Act
because, unlike employees, foster parents like the Roes are not paid a salary and are
not otherwise “in the paid service of a governmental unit” and also because DFPS 
did not have the legal right to control the Roes’ performance of their tasks as foster
parents.  I respectfully disagree with both conclusions.
          The stated purpose of Chapter 42 of the Human Resources Code, providing for
the “Regulation of Certain Facilities, Homes, and Agencies that Provide Child-Care
Services,” is “to protect the health, safety, and well-being of the children of the state
who reside in child-care facilities by establishing statewide minimum standards for
their safety and protection and by regulating the facilities through a licensing program
or by requiring child-care facilities to be regulated by alternative accreditation
bodies.”  Tex. Hum. Res. Code Ann. § 42.001 (Vernon Supp. 2004-2005).  The
stated policy of this State in promulgating Chapter 42 is “to ensure the protection of
all children under care in child-care facilities . . . .”  Id.  The foster care system is a
legislatively constructed system and is highly regulated.
          The Roes’ home was an agency foster home.  An agency foster home is defined 
by the Human Resources Code as “a [child-care] facility that provides care for not
more than six children for 24 hours a day, is used only by a licensed child-placing
agency, and meets department standards.”  Tex. Hum. Res. Code Ann. § 42.002(11)
(Vernon Supp. 2004-2005).  By legislative mandate, “[a]n agency foster home . . . is
considered part of the child-placing agency that operates the agency foster home . .
. for purposes of licensing.”  Id. § 42.053(a) (Vernon 2003).
          When the Atwood children were taken from the custody of their biological
mother, DFPS became the managing conservator of the children and became
responsible for protecting their rights.  DFPS had complete control over where the
Atwood children were placed,  and it had a mandated legislative responsibility to
place them in a safe environment. DFPS placed the children in the Roes’ home.
          As a regulated child-care facility, the Roe foster home was required to meet the
appropriate minimum standards established by DFPS.  See id. §§ 42.001, 42.042.  
Part of the core requirements mandate that a child-placing agency like DFPS sign a
written agreement with the foster parents at the time the agency home is verified. 
This agreement must specify, among other things, the following:  (1) the financial
agreement between the child-placing agency and the foster home; (2) that the child-placing agency has the right to remove the child at the agency’s discretion; (3) that
the agency must consent to discharge a child from the home; (4) that the agency is
responsible for regular supervision of the home; (5) what the agency’s policies are in
regard to child care, discipline, supervision of children; and (6) what the agency’s
policies are in regard to reports to the agency from the foster parents regarding foster
children and other events or occurrences impacting the provision of foster care.  See
40 Tex. Admin. Code § 720.48(f) (2004). If DFPS discovers that a foster family is
violating DFPS’s minimum standards in a manner which poses a risk to the health or
safety of children, it has the authority to demand that the foster family comply, and,
if the family does not, to remove the foster children and to close down the foster
home.  See id. §§ 42.0705-42.073 (Vernon 2003 & Supp. 2004-2005) (delineating
remedies for violations of applicable standards).
          DFPS and the Roes entered into a written contract under which the Roes
operated their home as an agency foster home and were compensated for their
services.  Indeed, the panel itself acknowledges that the Texas Administrative Code
regulates foster care assistance payments and that the Roes received such payments
pursuant to the Code.  See 40 Tex. Admin. Code § 700.308 (2004). 
          Because the Roes’ foster home was statutorily deemed to be part of the child-placing agency that placed the Atwood children in the home, and because the Roes
were paid for their services as foster parents in accordance with state law and the
contract they executed with DFPS pursuant to that law, I would hold that the Roes
satisfied the definition of government employees as persons “in the paid service of
a governmental unit.” Tex. Civ. Prac. & Rem. Code Ann. §101.001(2).  Because
DFPS had both a statutory and a contractual right of control over  the foster home to
ensure the protection of children placed by the state in that facility in accordance with
specified standards, I would also hold, in contrast to the panel, that the exclusion from
the definition of a government employee of “a person who performs tasks the details
of which the governmental unit does not have the legal right to control” does not
apply to the Roes.  See id.  Indisputably, the salaried DFPS employees who were
charged with supervising and inspecting the Roe foster home were also state
employees.
Waiver of Immunity

          To state a claim involving the use of non-defective property by a governmental
unit, a party must allege that the property was used or misused by a government
employee acting within the scope of his employment so as to cause injury. Texas
Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex.
App.—Dallas 1998, no pet.).  To be a proximate cause of injury for purposes of
waiver under the Tort Claims Act, the government employee’s use of tangible
personal or real property must be a substantial factor in bringing about the injury.
Texas Dep’t of Mental Health & Mental Retardation v. Pearce, 16 S.W.3d 456, 460
(Tex. App.—Waco 2000, pet dism’d w.o.j.).  In the absence of use of property by a
government employee, a state agency is liable only when a state actor has provided
property that lacks an integral safety component and the lack of this integral safety
component led to the plaintiff’s injuries.  San Antonio State Hosp. v. Cowan, 128
S.W.3d 244, 247 (Tex. 2004) (citing Kerrville State Hosp. v. Clark, 923 S.W.2d 582,
585 (Tex. 1996)).
          The Atwoods have pleaded that Jonathan Atwood’s death resulted directly
from the Roes’ misuse of tangible real and/or personal property—including the
above-ground swimming pool, the deck, the deck furniture, the door locks, the failure
to use a gate blocking access to the above-ground swimming pool and/or deck, and
a non-working motion detector.  Alternatively, they have pleaded that even if the pool
that caused Jonathan’s death by drowning was not itself being “used” by a state actor
at the time of his death, but rather was being used by Jonathan, who was not a state
actor, DFPS is still not absolved from potential liability for his death because, through
its employees, it placed Jonathan in a foster home that lacked integral safety
components, leading to the injuries that form the basis of their claim.  See Cowan,
128 S.W.3d at 247; Robinson v. Central Texas MHMR Ctr., 780 S.W.2d 169, 171
(Tex. 1989) (MHMR employees provided swimming attire that lacked life preserver);
Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (university employees
provided football uniform that lacked knee brace). 
          Accordingly, I would hold that the Atwoods have adequately pleaded a claim
for which section 101.021(2) of the Tort Claims Act waives sovereign immunity. 
Specifically, they have pleaded that an employee or employees of DFPS (a) caused
the Atwoods’ injuries by the use or misuse of tangible personal or real property or (b)
provided property that lacked an integral safety component and the lack of this
integral safety component led to Jonathan’s death and the Atwoods’ injuries.
 
Waiver of Immunity Based on Premises Defect
          I would also hold that the Atwoods have pleaded a premises defect for which
the Tort Claims Act waives sovereign immunity.
          With respect to premises defects,
 the Tort Claims Act limits the governmental
duty owed a claimant to “the duty that a private person owes to a licensee on private
property.”  Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).  This duty entails a
responsibility not to injure the licensee through willful, wanton, or grossly negligent
conduct.  County of Cameron v. Brown, 80 S.W.3d 549, 554  (Tex. 2002) (citing State
Dep’t of Highways and Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). 
The duty also entails a responsibility to either warn the licensee or to make the
condition reasonably safe if the property possessor has knowledge of a dangerous
condition and the licensee does not.  Id. at 554–55.  
          DFPS’s Right to Control the Premises
          Generally, a licensee asserting a premises defect claim must first show that the
defendant possessed—that is, owned, occupied, or controlled—the premises where
the injury occurred.  Brown, 80 S.W.3d at 554 (citing Wilson v. Texas Parks &
Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999)).  Even if a defendant did not own or
physically occupy the property, it may be held liable for a dangerous condition on the
property if it assumed control over and responsibility for the premises.  Id. at 556
(citing City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex. 1986)).  “The relevant
inquiry is whether the defendant assumed sufficient control over the part of the
premises that presented the alleged danger so that the defendant had the responsibility
to remedy it.”  Id.  
          In this case, it is undisputed that the Roes owned and occupied the premises at
issue.  Thus, with regard to the Atwood’s premises defect claim, the question before
this court is whether the Roes, as employees of DFPS, and/or DFPS itself assumed
sufficient control over the property that presented a danger to Jonathan Atwood so
that the Roes had the responsibility to remedy it in their capacity as paid DFPS foster
parents or DFPS had the duty to require the Roes to remedy it.  See id.
          Pursuant to DFPS’s core requirements for agency foster families, the Roe foster
home was required to meet all applicable fire, health, and safety laws, ordinances and
regulations.  Likewise, DFPS required that the Roe foster home and outdoor areas be
maintained, repaired, and cleaned so that they were not hazardous to the children in
care.  DFPS was responsible for providing regular supervision of the Roe foster home
and all foster children in the home by qualified staff, and to assisting the Roes in
maintaining minimum standards for foster homes.  Specifically, DFPS had the
responsibility (1) to complete a quarterly assessment on the Roe foster home, (2) to
document any noncompliance with DFPS policies and minimum standards, (3) to
follow-up on any noncompliance, and (4) to document that corrections had been
made.  Under DFPS’s written “Minimum Standards and Guidelines,” the
responsibility for the care of a child placed by DFPS into a regulated child-care
facility becomes a joint responsibility between the agency and the facility, including
a licensed agency foster home, is required to meet minimum standards on an on-going
basis.
          DFPS standards and policies required that the Roes make their home and
outdoor areas safe for the foster children in their care,
 in this case, by building a
locking gate to block access to the above-ground swimming pool in the backyard.  
The record demonstrates that, five days after the Atwood children were placed in the
Roe foster home, DFPS caseworker Linda Jayne completed a quarterly assessment
of the Roe home.  At that time, Jayne became aware of the danger posed by the lack
of a locked gate to block access to the above-ground swimming pool in the Roe’s
backyard, and she instructed Linda Roe that it was DFPS Region 6 policy that there
must be a locked gate to block access to the pool from the deck.  This condition was
not remedied; Jonathan Atwood drowned; and DFPS conducted an investigation in
which it found the Roes and their DFPS agency supervisor to be in violation of law.
          The Atwoods pleaded:
Residential Child Care Licensing (hereinafter RCCL) is the [DFPS]
agency responsible for investigating allegations of abuse and neglect by
regulated childcare facilities.  On or about August 2, 1999 and on behalf of
[DFPS], HCCPS, and LCCPS, RCCL began an investigation of the drowning
of Jonathan Atwood.  RCCL determined:
 
[t]here is “Reason to Believe” that Linda Roe is a perpetrator of
neglectful supervision in the death of Jonathan Atwood as defined in the
Texas Family Code Chapter 261.001(4)(B)(I) “placing a child or failing
to remove a child from a situation that a reasonably prudent person
would realize requires judgment or actions beyond the child’s level of
maturity, physical condition, or mental abilities and that results in a
bodily injury or a substantial risk of immediate harm to the child.”

****
Mrs. Roe admitted that she was told by her FAD worker, Linda Jayne,
to put a gate at the deck’s entrance to the pool and [neither] she nor her
husband had placed a gate at the entrance until after Jonathan’s
drowning.  Mrs. Roe also admitted that she normally places deck
furniture that consists of chairs and a hammock at the deck’s entrance
to the pool, but on the day that Jonathan drowned, she did not place the
deck furniture at the entrance.  Mrs. Roe admitted that she had
knowledge that Jonathan knew how to lock and unlock the locks on the
doorknobs of her home.  Linda Jayne’s quarterly report indicates that
she discussed with the Roes during her home visit on 7-19-99 that they
must have blocked access with a locked gate to keep the children from
accessing the pool.  Linda Jayne stated that the Roes agreed to complete
this task.
 
On September 13, 1999, [DFPS], HCCPS and LCCPS, by and through
RCCL, issued findings of its investigation of the circumstances surrounding
the drowning of Jonathan Atwood.  RCCL determined that Region Six
([DFPS], HCCPS, and LCCPS) was not in compliance with the following
Minimum Standards for Child Placing Agencies:
 
After staffing the case with RCCL supervisor, Sherry Loyd, I
determined a finding of “Reason to Believe” for Linda Roe in the
neglectful supervision of Jonathan A, as defined in the Texas Family
Code 261.001(4)(B)(I).
 
1610.1 The agency is responsible for protecting children’s rights while
a child is in substitute care and in adoptive placements prior to
consummation of the adoption.
 
Non-compliance- The agency did not ensure that Jonathan’s
rights were protected while he was in the Roe foster home which
resulted in his death.
****
1610.3 Children must be placed and supervised appropriately in the least
restrictive environment capable of meeting their needs.  The placement
must meet the child’s physical and emotional needs, and must provide
consideration for sibling relationships and cultural needs.
 
Non-compliance- The agency did not ensure that Dolan and
Linda Roe adequately supervised Jonathan A. and the child was
able to gain access to the pool which ultimately led to his
drowning.
 
The RCCL findings were not contested or appealed by any party.
 
HCCPS is the regional headquarters for Region Six of [DFPS].  HCCPS
and [DFPS] approved and licensed the ROE foster home.  The ROE foster
home and the Roe family operated with the permission of, and subject to the
supervision and control of [DFPS], HCCPS and LCCPS.  The ROE foster
home and the appurtenances and fixtures thereto were subject to the approval,
control and supervision of [DFPS], HCCPS and LCCPS.  LINDA ROE and
DOLAN E. ROE, as foster parents, were subject to the supervision and control
of [DFPS], HCCPS and LCCPS.
 
At all times relevant to the facts made the basis of the present cause,
Defendants LINDA ROE and/or DOLAN E. ROE were employees,
representatives, agents, servants, borrowed servants and/or under the control
of Defendants HCCPS, LCCPS and/or [DFPS].  At all times relevant to the
facts made the basis of the present cause, Defendants LINDA ROE and/or
DOLAN E. ROE were subject to the rules, policies and procedures of Defendants HCCPS, LCCPS and/or [DFPS].

 (Emphasis in original.)
          I would conclude that the Atwoods adequately pleaded that DFPS, through the
Roes as operators of a licensed child-care facility and through its supervisory
employees, exercised control over the premises as an agency foster home.  See
Brown, 80 S.W.3d at 556. 
DFPS’s Duty Not to Injure the Licensee and Duty to Warn the Licensee or
Make the Premises Reasonably Safe

          The duty of control of premises entails a responsibility not to injure a licensee
through willful, wanton, or grossly negligent conduct.  Brown, 80 S.W.3d at 554
(citing Payne, 838 S.W.2d at 237).  The duty of control also entails a responsibility
either to warn the licensee or to make the condition reasonably safe if the property
possessor has knowledge of a dangerous condition and the licensee does not.  Id. at
554-55.
          The Atwoods pleaded that
At the time of the incident made the basis of the present litigation, the
[Roe] foster home contained a premise defect, the deck attached to the
back of the Roe home extended to the pool and provided open access to
the pool.  This condition or defect presented an unreasonable risk of
harm in which there was sufficient probability of a harmful event
occurring that a reasonable prudent person would have foreseen it or
some similar event was likely to happen.  Defendants [DFPS and
HCCPS] along with Linda Roe and Dolan E. Roe were the possessors
of the property in that they exercised control over the Roe home and/or
the premise defect and had the power or authority to manage, direct,
restrict, superintend, regulate, govern, administer or oversee the [Roe]
home and/or the premise defect.  Defendants [DFPS, HCCPS, and the
Roes] owed Plaintiffs the same duty owed to a licensee to exercise
ordinary care to warn Plaintiffs or to make reasonably safe a known
dangerous condition about which Plaintiffs were unaware and not to
injure Plaintiffs through willful, wanton, or grossly negligent conduct. 
Defendants breached this duty.  Additionally, Defendants had
knowledge of the dangerous condition and therefore had the duty to
warn Plaintiffs of the condition or to make the condition reasonably
safe.  Defendants breached this duty.  Plaintiffs were unaware of the
condition, Defendants failed to warn Plaintiffs of the condition, and
Defendants failed to make the condition reasonably safe.  Defendants
breach was a proximate cause of the injuries sustained by Plaintiffs and
the death of three year old Jonathan Atwood.

The Atwoods asserted that DFPS waived sovereign immunity from this claim because
Plaintiffs claims involved personal injury and death caused by a
condition and/or use of real property, the deck attached to the back of
the Roe home provided open access to the pool.  This condition and/or
use of the real property was defective and/or negligent, such that under
Texas law, a private person would be liable to Plaintiffs for this
defective and/or negligent condition and/or use.  

          In my view, the Atwoods pleaded facts sufficient to state a claim for premises
liability based on DFPS’s duty not to injure the Atwood children through willful,
wanton, or grossly negligent conduct.  They also pleaded facts sufficient to show that
DFPS employees had statutory and contractual responsibilities to make the pool area
of the Roe foster home reasonably safe and that they breached those duties.  Finally,
they pleaded facts that would show, if proved, that DFPS had knowledge of the
dangerous condition posed by the Roes’ above-ground swimming pool, that the
Atwoods did not have that knowledge, and that DFPS neither warned the Atwoods
about the danger nor made the premises reasonably safe, proximately causing the
Atwoods’ injuries.
          I would hold that the Atwoods adequately pleaded a premises-defect claim
against DFPS for which sections 101.021(2) and 101.022 of the Tort Claims Act
waive sovereign immunity.  See Tex. Civ. Prac. & Rem. Code §§ 101.021(2),
101.022.  
          I agree with the panel that the Atwoods did not establish the existence of a joint
venture between the Roes and DFPS.
 
CONCLUSION
          The implications of the panel’s holding in this important case of first
impression are far-reaching.   The stated purpose of Chapter 42 of the Human
Resources Code is the protection of the health and safety of children in the care of the
State.  If state agencies charged with the placement, custody, and supervision of
children are as, as the panel holds, immune from liability for claims arising from the
injury or death of those children whom the State has removed from their parents and
placed in foster care in state-licensed and state-supervised agency foster homes, then
I fear that the effectiveness of Chapter 42 will be severely undermined.
          I do not believe that the Legislature intended that state agencies be immune
from liability when a child in the care of the State is killed or injured at a state-licensed agency foster home by the use or misuse of tangible property by persons
charged by the State with the protection of the health and safety of that child or by a
premise defect at that child-care facility.  Nor do I believe that the Legislature
intended that foster parents who maintain state-licensed agency foster homes not be
considered state employees in performing their statutory and contractual duties as
foster parents or that agency foster-homes not be considered property controlled by
the State.  Rather, I believe that state agencies are responsible for the protection of
children they have placed in foster care in state-licensed agency foster homes and that
the Legislature provided for a waiver of sovereign immunity in cases such as this one
precisely to ensure that the laws protecting the health and safety of children in state
care are respected and enforced.  I also fear the chilling effect of the panel’s opinion
on the willingness of persons to operate state-licensed agency foster homes because,
under that opinion, the full brunt of liability for any injury to the child falls on the
foster parents personally, as independent contractors, and not on the state agencies
or departments that license, regulate, supervise, and inspect such foster homes.
          I would hold that the Atwoods’ petition alleges a cause of action that falls
within two of the three categories for which the Texas Tort Claims Act waives
sovereign immunity; thus, the trial court correctly denied DFPS’s plea to the
jurisdiction.  Accordingly, I would grant en banc consideration, affirm the order of
the trial court denying DFPS’s plea to the jurisdiction, and remand the cause for
further proceedings.

                                                             Evelyn V. Keyes
                                                             Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.

En banc consideration was requested.

A majority of the justices voted to deny en banc consideration.

Justice Keyes, dissenting from denial of en banc consideration, joined by Justice
Jennings and joined by Justice Higley in regard to premises defect.
