Reversed and Remanded and Majority Opinion and Concurring and Dissenting
Opinion filed August 14, 2018.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00028-CV

    TIM THIBODEAU, AS LEGAL GUARDIAN OF G.A.W.T., A MINOR
                       CHILD, Appellant

                                          V.

 DR. MARY LYLES AND KATY FAMILY COUNSELING, PLLC, Appellees

                     On Appeal from the 268th District Court
                             Fort Bend County, Texas
                      Trial Court Cause No. 16-DCV-235475

                       MAJORITY OPINION
      A father brought tort claims on behalf of his daughter against a therapist and the
therapist’s professional limited liability company. On appeal, the father challenges a
final order in which the trial court simultaneously granted both the defendants’ plea to
the jurisdiction and their motion to dismiss under Texas Rule of Civil Procedure 91a.
The defendants based the plea to the jurisdiction and the Rule 91a motion solely on
their purported immunity under section 261.106(a) of the Family Code, which they
read to establish immunity from suit that deprives the trial court of subject matter
jurisdiction. See Tex. Fam. Code Ann. § 261.106(a) (Vernon 2014).

        We reject this reading. Even if the defendants were entitled to immunity under
Family Code section 261.106(a), we conclude that this statute provides only immunity
from liability. Therefore, this statute cannot deprive the trial court of subject matter
jurisdiction. We reverse and remand because the trial court erred in dismissing the case
for lack of subject matter jurisdiction.

                                      BACKGROUND

      Appellant/plaintiff Tim Thibodeau, as legal guardian of G.A.W.T., a minor
child, sued appellees/defendants Dr. Mary Lyles and Katy Family Counseling, PLLC
(collectively “the Lyles Parties”), asserting negligence and intentional infliction of
emotional distress claims based on Dr. Lyles’s alleged acts and omissions while
allegedly acting as the child’s therapist and evaluator.

      The Lyles Parties filed a plea to the jurisdiction combined with a motion to
dismiss under Texas Rule of Civil Procedure 91a, which provides for the dismissal of
baseless claims. The Lyles Parties assert that all of Thibodeau’s claims arise from Dr.
Lyles’s reporting of suspected child abuse and her testifying as to the same and that
therefore the Lyles Parties enjoy immunity under Family Code section 261.106(a). In
their plea to the jurisdiction, the Lyles Parties contend that this statutory immunity is
an immunity from suit that operates to strip the trial court of subject matter jurisdiction.

      In the alternative, the Lyles Parties also moved to dismiss under Rule 91a,
arguing that Thibodeau’s claims have no basis in law because the Lyles Parties enjoy
immunity under section 261.106(a).

      The trial court signed a single order granting both the plea to the jurisdiction and
the Rule 91a motion to dismiss. Thibodeau challenges this order on appeal.
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                                        ANALYSIS

        In his first issue, Thibodeau asserts that the immunity provided by section
261.106(a) is immunity from liability. He challenges the trial court’s grant of the Lyles
Parties’ plea to the jurisdiction arguing that, even if the Lyles Parties enjoyed immunity
under section 261.106(a), they would have only an immunity from liability, not an
immunity from suit. Thus, Thibodeau argues, the trial court erred in granting the plea
to the jurisdiction and concluding that the court lacked jurisdiction. In his second issue,
Thibodeau contends that this immunity instead operates as an affirmative defense that
must be pleaded and proven by a preponderance of the evidence. In his third and fourth
issues, Thibodeau challenges the trial court’s simultaneous granting of the Lyles
Parties’ motion to dismiss under Rule 91a.

        The Lyles Parties purported to assert both a plea to the jurisdiction and a motion
to dismiss under Rule 91a in a single instrument filed in the trial court.

        We pause to consider the nature of this instrument before addressing whether the
trial court erred in dismissing the case. We do so to examine its substance as well as
its title and form, and to confirm that the Lyles Parties sought a dismissal of
Thibodeau’s claims based on an alleged lack of subject matter jurisdiction. We give
effect to the substance of the document the Lyles’ Parties filed rather than its title or
form.    See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig.
proceeding).

        Asserting in the plea to the jurisdiction that all of Thibodeau’s claims arise from
Dr. Lyles’s reporting of suspected child abuse and her testifying as to the same, the
Lyles Parties claim to have section 261.106(a) immunity. They assert that this statutory
immunity is an immunity from suit that strips the trial court of subject matter
jurisdiction. In the part of the instrument denominated as a plea to the jurisdiction, they
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do not refer to any other legal standard, rule, or procedural device.

      As a threshold matter, we conclude that the substance of this part of the
instrument is a plea to the jurisdiction based solely on the Lyles Parties’ alleged
immunity from suit under Family Code section 261.106(a).

      We also conclude that the portion of this instrument denominated as a Rule 91a
motion is an alternative vehicle for asserting the same basis for dismissal — predicated
on an asserted lack of subject matter jurisdiction — that was asserted in the plea to the
jurisdiction. The Rule 91a motion does not assert a basis for dismissal distinct from
lack of subject matter jurisdiction.1

      The Rule 91a motion merely reasserts that “Dr. Lyles has immunity for her
report as well as her involvement in the Minor Plaintiff’s custody case under Texas
Family Code 261.106(a).” The motion asserts that immunity “deprives Plaintiff of the
relief sought and renders the negligence, negligence per se and intentional infliction of
emotional distress claims without a [basis] . . . in law.” The motion does not attempt
to articulate a contention that appellees are immune from liability even if they are not
immune from suit — or any other basis for dismissal on grounds other than lack of
subject matter jurisdiction. The Lyles Parties’ invocation of Rule 91a in the trial court
does not by itself indicate that dismissal is being sought on a merits basis that is distinct
from lack of subject matter jurisdiction. This court has recognized that Rule 91a can
be used to obtain dismissal based on lack of subject matter jurisdiction. See, e.g., Univ.
of Tex.–MD Anderson Cancer Ctr. v. Porter, No. 14-17-00107-CV, 2017 WL 5196146,
at *1 (Tex. App.—Houston [14th Dist.] Nov. 2, 2017, no pet.) (mem. op.).

      The Lyles Parties’ brief in this court also does not articulate a basis for dismissal


      1
          Based on this determination, we need not address Thibodeau’s third and fourth issues.

                                                  4
under Rule 91a that is distinct from their contention that subject matter jurisdiction is
lacking. Their appellate brief does not assert any basis for dismissal under Rule 91a at
all. Instead, the brief argues that (1) dismissal is warranted based on lack of subject
matter jurisdiction; and (2) any asserted dispute regarding whether the Lyles Parties
established good faith in making a report of child abuse is moot.

      Looking at its substance rather than form, we conclude that the instrument filed
by the Lyles Parties asserts a single ground for dismissal based on lack of subject matter
jurisdiction. We now turn to Thibodeau’s first issue.

I.   Section 261.106(a) Does Not Defeat Subject Matter Jurisdiction
      The parties have not cited and research has not revealed any case from the
Supreme Court of Texas or this court addressing whether the immunity provided by
section 261.106(a) is immunity from suit that deprives the courts of subject matter
jurisdiction or immunity from liability that does not deprive the courts of jurisdiction.
To answer the question, we look to the statutory text.

      Section 261.106(a) of the Texas Family Code states:

             A person acting in good faith who reports or assists in the
             investigation of a report of alleged child abuse or neglect or
             who testifies or otherwise participates in a judicial
             proceeding arising from a report, petition, or investigation of
             alleged child abuse or neglect is immune from civil or
             criminal liability that might otherwise be incurred or
             imposed.
We review the trial court’s interpretation of applicable statutes de novo. See Johnson
v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex. 1989). In construing a statute,
we seek to give effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v.
Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from
the language the Legislature used in the statute and not look to extraneous matters for

                                            5
an intent the statute does not state. Id. If the meaning of the statutory language is
unambiguous, we adopt the interpretation supported by the plain meaning of the
provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.
1997). We must not engage in forced or strained construction; instead, we must yield
to the plain sense of the words the Legislature chose. See id.

      On its face, section 261.106(a) is unambiguous, so we need not and do not
venture into extraneous matters to determine the Legislature’s intent. After setting out
the class of people entitled to the immunity, the Legislature’s text plainly characterizes
the immunity as immunity from liability. No language in the statute states that the
people who fall within the statute’s scope enjoy immunity from suit or should be treated
as if they were governmental actors. Under its unambiguous wording, the statute does
not provide that courts lack jurisdiction over claims in which a plaintiff seeks to
establish civil liability against a person covered by the statute.

      The Lyles Parties have not cited, and we have not found, any cases in which a
court holds that section 261.106(a) confers immunity from suit or deprives courts of
jurisdiction over claims against a person covered by the statute.

      The First Court of Appeals has concluded that the immunity provided under
section 261.106(a) does not deprive courts of jurisdiction over any claims because the
immunity is immunity from liability and not immunity from suit. See Miranda v. Byles,
390 S.W.3d 543, 551 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). We agree
with our sister court that immunity under section 261.106(a) does not deprive courts of
jurisdiction over any claims and thus would not provide a basis for granting a plea to
the jurisdiction. See id. Presuming without deciding that the Lyles Parties enjoy
immunity under section 261.106(a) as to all of Thibodeau’s claims, we conclude that
this immunity does not deprive the courts of jurisdiction over these claims. See id.
Therefore, the trial court erred in dismissing this case based on a lack of subject matter

                                             6
jurisdiction. We sustain Thibodeau’s first issue.2

II. The Bird Privilege Does Not Defeat Subject Matter Jurisdiction
       The Lyles Parties argue on appeal that the trial court properly dismissed
Thibodeau’s claims for lack of subject matter jurisdiction based on the common-law
privilege the Supreme Court of Texas described in Bird v. W.C.W., 868 S.W.2d 767,
771 (Tex. 1994). According to the Lyles Parties, this privilege confers on them an
immunity from suit that deprives the courts of subject matter jurisdiction over
Thibodeau’s claims. The Lyles Parties did not assert this argument in the trial court.
Nonetheless, if this privilege would deprive the trial court of subject matter jurisdiction
over Thibodeau’s claims, we would have to consider the merits of this argument despite
the Lyles Parties’ failure to raise it in the trial court. See Waco Indep. Sch. Dist.
v. Gibson, 22 S.W.3d 849, 850-51 (Tex. 2000); Tex. Dep’t of Transp. v. Olivares, 316
S.W.3d 89, 95 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

       Communications made during the course of judicial proceedings are privileged.
See Bird, 868 S.W.2d at 771. The privilege extends to pre-trial proceedings and covers
affidavits filed with the court. See id. If the essence of a claim is libel or slander based
on a person’s communications in the context of judicial proceedings, this absolute
privilege applies to shield the person from liability. See id. The Bird court did not
state that this privilege confers immunity from suit or that the privilege deprives courts
of subject matter jurisdiction over such claims. See id. at 771-72.                 Instead, this
privilege results in a defense to the merits of such claims rather than a dismissal for
lack of subject matter jurisdiction. See id. at 768 (rendering a take-nothing judgment
on the claims to which the privilege applied rather than dismissing for lack of subject

       2
         We need not and do not address whether either of the Lyles Parties is entitled to immunity
from liability under Texas Family Code section 261.106(a). We need not address Thibodeau’s second
issue.

                                                7
matter jurisdiction).

       Presuming without deciding that the Lyles Parties are correct and the Bird
privilege applies to all of Thibodeau’s claims, we conclude that this privilege does not
deprive the courts of jurisdiction over these claims. See id. Therefore, this privilege
does not provide a possible basis for affirming the trial court’s dismissal of Thibodeau’s
claims.3

                                         CONCLUSION

       Presuming without deciding that the Lyles Parties enjoy immunity under Family
Code section 261.106(a) as to all of Thibodeau’s claims, this immunity does not
deprive the courts of jurisdiction over these claims. Therefore, the trial court erred in
dismissing this case. Thus, we reverse the trial court’s final order and remand for
further proceedings.




                                              /s/       William J. Boyce
                                                        Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jewell. (Frost, C.J.,
concurring and dissenting).




       3
           We need not and do not address whether this privilege applies in this case so as to preclude
liability as to any of Thibodeau’s claims.

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