IN THE SUPREME COURT OF TEXAS








IN THE SUPREME COURT OF 
TEXAS
 
════════════
No. 
04-0473
════════════
 
In the 
Interest of S.A.P.
 
════════════════════════════════════════════════════
On Petition for Review from 
the
Court of Appeals for the 
Tenth District of Texas
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PER CURIAM
 
Based 
on a unanimous jury verdict, the trial court terminated the respondents’ 
parent-child relationship with S.A.P., their one-year-old son.  Based on an estoppel defense that was neither pleaded nor submitted to 
the jury, a divided court of appeals reversed.  135 S.W.3d 165, 168-71.  Because estoppel was not proved conclusively, we hold it was waived, 
and thus reverse.
S.A.P. 
was born on June 8, 2001 to Scott and Rebecca Peterson.[1]  Viewing all the evidence in the light 
most favorable to the verdict,[2] 
both parents had a long history of involvement with child welfare agencies in 
New York and Texas.  Rebecca’s 
personal history included physical, sexual, and substance abuse, and her two 
children from a previous relationship had been left at various times with a 
grandmother (who severely abused one of them), with her father (whom she had 
accused of abusing her), and finally with the Texas Department of Protective and 
Regulatory Services (“TDPRS”), which obtained termination of her parental rights 
to both of them a few months before S.A.P. was born.  Similarly, Scott Peterson’s personal 
history included an involuntary commitment for psychiatric problems, termination 
of his parental rights with two children from a previous marriage based on 
allegations of sexual abuse, and a series of hostile, disruptive, and delusional 
episodes in therapy sessions after S.A.P.’s birth.
Almost 
immediately after S.A.P. was born, the TDPRS took custody of him pursuant to a 
court order.  Eleven months later, 
TDPRS amended its petition to seek termination of the respondents’ parent-child 
relationship with him.  
At 
trial, jurors found neither Rebecca nor Scott had knowingly placed or allowed 
S.A.P. to remain in conditions endangering his well-being.  Tex. Fam. Code § 161.001(1)(D).  Indeed, they could hardly do otherwise, 
as S.A.P. remained in the custody of TDPRS for virtually his entire life.        But the jury also 
found by clear and convincing evidence that (1) both parents had engaged in 
conduct that “endangers the physical or emotional well-being of the child,” 
id. § 161.001(1)(E); (2) Rebecca had a previous parent-child relationship 
terminated on the basis of endangerment, id. § 161.001(1)(M); (3) Scott 
failed to comply with a court order establishing actions necessary for return of 
a child placed with TDPRS due to abuse or neglect, id. § 161.001(1)(O); 
and (4) termination was in S.A.P.’s best interest, 
id. § 161.001(2).  The trial 
court rendered judgment on the jury verdict terminating the respondents’ 
parental rights.
The 
court of appeals reversed based on identical letters TDPRS sent to each 
respondent within two weeks of S.A.P.’s birth.  135 S.W.3d at 168-69,171.  The letters stated: 
 
Child 
Protective Services has completed an investigation based on a report dated 
6/8/2001 that you were responsible for abuse or neglect of one or more children 
in the above named case.  Agency 
staff has concluded that you did not have a role in the alleged abuse or 
neglect.  We will be offering 
services to your family to remedy any other problems identified during the 
investigation.  Because all 
allegations involving you as an alleged perpetrator have been ruled out, you 
have the right to request that we remove information about your alleged role 
from our records.
 
Accompanying 
each letter was a form for requesting removal of “role information” from the 
TDPRS files that stated:
 
Once 
the role information involving you is removed from our records, THIS INFORMATION 
WILL BE PERMANENTLY DESTROYED AND WILL NOT BE AVAILABLE TO USE FOR ANY PURPOSE 
WHATSOEVER.
 
Both 
respondents signed and returned the form to indicate their decision “to request 
that all information about my role as an alleged perpetrator in this 
investigation be removed from the department’s records.”
Based 
on these letters, the respondents unsuccessfully sought dismissal of the 
proceedings.  After the trial, they 
asserted the same argument in post-verdict motions for new trial.  
A 
majority of the court of appeals reversed, finding that the letters “effectively 
exonerated the parents of the only allegations against them regarding 
S.A.P.”  Id. at 170.  Despite finding the letters “dispositive,” the court nevertheless remanded for 
unspecified further proceedings.  
Id. at 171.
We 
hold any error in the trial court’s failure to dismiss the proceedings was not 
preserved.  First, estoppel was never pleaded.[3]  The Texas rules provide that a 
defendant’s answer “shall set forth affirmatively . . . estoppel . . . and any other matter constituting an 
avoidance or affirmative defense.”  
Tex. R. Civ. P. 94.  If estoppel is 
not pleaded, it is waived.  
See Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex. 1991); 
Concord Oil Co. v. Alco Oil & Gas Corp., 387 S.W.2d 635, 639 (Tex. 
1965).   
Second, 
estoppel was never submitted to the jury.  An unpleaded 
issue may be tried by consent, but it still must be submitted to the jury.  Tex. R. Civ. P. 279 (“Upon appeal all 
independent grounds of recovery or of defense not conclusively established under 
the evidence and no element of which is submitted or requested are waived.”); 
Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993).
Third, 
the letters did not conclusively estop the TDPRS from 
seeking termination.  As the court 
of appeals noted, equitable estoppel generally does 
not apply to governmental entities.  
135 S.W.3d at 169; Leeco Gas & 
Oil Co. v. Nueces County, 736 S.W.2d 629, 630 (Tex. 1987) (“When a 
governmental unit is exercising governmental powers it is not subject to estoppel.”); see also City of Hutchins v. Prasifka, 450 S.W.2d 829, 836 (Tex. 1970) (noting 
municipalities may be subject to estoppel in rare 
cases when it will not interfere with their governmental functions and manifest 
injustice would otherwise result).  

The 
court of appeals cited no case invoking the doctrine to prevent a state agency 
charged with protecting children from doing so.  Indeed, we have difficulty imagining how 
parents found by a jury to have endangered their children can have the “clean 
hands” needed to estop such a finding.  See Champlin 
Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 384 (Tex. 1965) (“The 
doctrine of estoppel is for the protection of innocent 
persons, and only the innocent may invoke it.”) (citation omitted).  
But 
even if the doctrine might apply in some parental termination case, it cannot be 
applied conclusively here.  First, 
the TDPRS letters arguably relate only to a report of abuse on the day S.A.P. 
was born; they do not promise TDPRS would never attempt termination for conduct 
that occurred before or after that date or that related to the respondents’ 
other children.  The grounds for 
termination answered affirmatively by the jury were broad enough to include all 
of the latter.
Second, 
the letters promise only to destroy evidence in the agency’s files, not to 
refrain from using the same evidence from other sources.  The respondents assert TDPRS could not 
rely at trial on anything it had ever reviewed, but the letters make no such 
promise.  Much of the evidence here 
came from witnesses who testified at trial and from the respondents’ own 
admissions B 
and thus would not have been impacted by expunction.
Third, 
the evidence of detrimental reliance, if any, was far from conclusive.  See Johnson & Higgins of Tex., 
Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 
515-16 (Tex. 1998) (holding estoppel requires proof of 
detrimental reliance).  The court of 
appeals found the respondents relied on the letters by cooperating with TDPRS, 
but the respondents never claimed the TDPRS letters were the reason they did 
so.  Indeed, their theory at trial 
and on appeal is that TDPRS did not provide them enough services and 
parental support, a position inconsistent with claiming that their cooperation 
with the agency was a detrimental change of position.  
Further, 
neither the court of appeals nor the respondents explain why their participation 
in counseling and other family support services was detrimental.  It is hard to see how their chances of 
regaining custody of S.A.P. would have been increased by refusing to do so.
We 
recognize the form letters sent by TDPRS have the potential to be misleading if 
routinely used in circumstances like those here.  Given the agency’s previous involvement 
with the parents and the speed with which it acted to remove S.A.P., it is hard 
to see why it promised to destroy its files almost immediately thereafter.  But because estoppel was never submitted to the jury, we hold that the 
letters alone did not (as the respondents claim) require as a matter of law that 
the agency return S.A.P. to them and “wait for them to fail.”
Accordingly, 
without hearing oral argument, we reverse the court of appeals’ judgment and 
remand to that court for consideration of the other issues raised on 
appeal.  See Tex. R. App. P. 59.1.
 
OPINION 
DELIVERED:  January 21, 
2005



[1] The respondents married in the interim between S.A.P.’s birth and the termination trial.  S.A.P.’s birth 
records show his mother’s name as Rebecca Williams.

[2] See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) 
(holding reviewing court should view all evidence and resolve all factual 
disputes in favor of verdict if reasonable jurors could do so). 


[3] Respondents mentioned the letters sent by TDPRS in 
their motions for summary judgment, but a motion for summary judgment is not a 
pleading.  See Tex R. Civ. P. 
45(a).