                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-14-00315-CV

IN THE MATTER OF THE
GUARDIANSHIP OF EDWIN
WOOLEY, AN ALLEGED
INCAPACITATED PERSON


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              FROM PROBATE COURT NO. 2 OF TARRANT COUNTY
                     TRIAL COURT NO. 2014-GD00251-2

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                 CONCURRING MEMORANDUM OPINION1

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      I agree with the majority opinion’s ultimate conclusion that the probate

court’s order denying the amended plea to the jurisdiction filed by appellant the

Department of Aging and Disability Services (DADS) must be affirmed. I write

separately to delineate my bases for this conclusion.

      No party disputes that DADS, specifically its guardianship-services

program, received a referral to assess the appropriate guardianship services

      1
          See Tex. R. App. P. 47.4.
needed by Edwin Wooley.           See Tex. Hum. Res. Code Ann. §§ 48.209,

161.101(b) (West Supp. 2015); 40 Tex. Admin. Code § 10.203 (2016) (Tex. Dep’t

of Aging & Disability Servs., Guardianship Servs.).         The court-appointed

investigator filed an application for the appointment of a permanent guardian,

“possibly” DADS. See generally Tex. Est. Code Ann. § 1054.152 (West 2014)

(delineating general duties of court-appointed investigator). The probate court

set a September 2014 hearing on the application for a permanent guardian.

DADS filed a plea to the jurisdiction contending that it had completed its

assessment of Wooley and “determined that guardianship was not appropriate”;

thus, DADS argued that the probate court had no jurisdiction to appoint it as

permanent guardian because DADS had not filed an application for such an

appointment. See Tex. Hum. Res. Code Ann. § 161.101(d) (providing DADS

may not be appointed permanent guardian unless it “files an application to serve

or otherwise agrees to serve”).

      Apparently after discovering that an application for the appointment of a

temporary guardian had not been filed, Wooley’s guardian ad litem filed an

application for the appointment of a temporary guardian, “possibly” DADS, on

August 11, 2014. See Tex. Est. Code Ann. § 1251.003 (West Supp. 2015). The

trial court set a hearing on the application for a temporary guardian for the next

day. See id. § 1251.006(a) (West 2014). At the hearing, the probate court

overruled DADS’s plea “for purposes of application for temporary guardianship”

because “the [Estates] Code expressly provides that the Court may appoint


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DADS as a temporary guardian.” See generally id. § 1022.005 (West 2014)

(conferring exclusive jurisdiction on county probate court for “all guardianship

proceedings”), § 1251.011 (West 2014) (allowing appointment of DADS as

temporary guardian “only as a last resort”). The probate court, after hearing

evidence, entered an order appointing DADS as Wooley’s temporary guardian

over DADS’s objection. See id. §§ 1251.001, .010 (West 2014). The record

reflects that a DADS representative took the oath to serve as Wooley’s

temporary guardian. See id. § 1251.101 (West 2014); Tex. Hum. Res. Code

Ann. § 161.105 (West Supp. 2015). DADS does not argue on appeal that the

temporary guardianship was improperly ordered or was outside of the probate

court’s subject-matter jurisdiction.

      After the probate court appointed DADS as Wooley’s temporary guardian,

the investigator filed a notice in which he requested that DADS or any suitable

person be appointed as Wooley’s permanent guardian.         DADS then filed an

amended plea to the jurisdiction, again arguing that section 161.101 barred its

appointment as permanent guardian and asserting for the first time that it was

entitled to immunity from suit and liability as an agency of the State, which had

not been affirmatively waived. DADS requested that the probate court “dismiss”

DADS and “strike those portions of the [investigator’s] pleadings” requesting

appointment of DADS as a permanent guardian. When the trial court held its

September 2014 hearing on the investigator’s application for appointment of a

permanent guardian, DADS raised the probate court’s lack of subject-matter


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jurisdiction based on section 161.101 and on its immunity from suit. The trial

court stated that it would take DADS’s amended plea and, presumably, the

application for appointment of a permanent guardian “under advisement.” That

same day, the trial court entered an order denying DADS’s amended plea to the

jurisdiction.   The record reflects that a permanent guardian has not been

appointed, and it appears DADS continues to serve as Wooley’s temporary

guardian.

       On appeal, DADS argues that the probate court did not have subject-

matter jurisdiction over it because no valid waiver of its sovereign immunity exists

and it has not consented to suit. DADS further asserts that any appointment of

DADS as the permanent guardian is “jurisdictionally barred” based on section

161.101.

       DADS raised in the probate court its alleged immunity from suit and from

liability as a bar to its appointment as Wooley’s permanent guardian. Immunity

from liability is not an appropriate subject for a plea to the jurisdiction because it

does not implicate a trial court’s subject-matter jurisdiction; thus, any immunity

from liability that DADS might be entitled to should not be addressed in this

appeal from the trial court’s denial of DADS’s plea to the jurisdiction.

See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003).

Indeed, DADS does not seem to urge immunity from liability in its brief on appeal.

But DADS’s argument that the probate court lacked jurisdiction based on its

alleged immunity from suit should be addressed.


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      DADS currently is a state agency.2      See Tex. Hum. Res. Code Ann.

§ 161.002 (West 2013). In general, state agencies are entitled to immunity from

suit unless the State clearly consents. See Kerrville State Hosp. v. Fernandez,

28 S.W.3d 1, 3 (Tex. 2000). But the investigator’s application was not a suit

brought or maintained against DADS such that sovereign immunity was

implicated. Immunity from suit bars a suit brought against a state agency absent

legislative consent. See Lubbock Cty. Water Control & Improvement Dist. v.

Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014); Tooke v. City of Mexia,

197 S.W.3d 325, 332 (Tex. 2006); see cf. 40 Tex. Admin. Code § 7.905 (2016)

(Tex. Dep’t of Aging & Disability Servs., DADS Admin. Responsibilities) (stating

that provisions governing negotiation and mediation of contract claims brought

against DADS does not waive its immunity from suit or liability).      Again, the

investigator’s application for a permanent guardian for Wooley was not a suit

brought against DADS. Indeed, the cases cited by DADS in its brief are cases

involving claims brought directly against a state agency. See, e.g., Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 231–34 (Tex. 2004) (concluding

state parks department had immunity from suit regarding personal-injury claim




      2
       Effective September 1, 2017, DADS will be abolished and its functions
transferred to the Health and Human Services Commission. See Tex. Gov’t
Code Ann. § 531.0202(b) (West Supp. 2015). This future abolition will not affect
any actions taken by DADS before that date. See id. § 531.0202(c).


                                        5
brought against it by park visitor);3 Tex. Dep’t of Aging & Disability Servs. v.

Sierra Home Care, L.L.C., 235 S.W.3d 835, 837–38 (Tex. App.—El Paso 2007,

no pet.) (holding DADS had immunity from suit regarding declaratory-judgment

action brought by home-healthcare company against DADS based on DADS’s

termination of its contracts with company to provide Medicaid services for DADS

clients). I would hold that DADS did not establish that it was entitled to immunity

from suit because the application for appointment of a permanent guardian was

not a suit brought against it.

      DADS had an undisputed statutory duty to assess the guardianship

services needed for Wooley and was properly before the court as his appointed

temporary guardian. See Tex. Hum. Res. Code Ann. §§ 161.071(10), 161.101(b)

(West Supp. 2015) (setting forth DADS’s general guardianship and assessment

duties); 40 Tex. Admin. Code § 10.203 (specifying DADS’s assessment duties,

including requiring it to file “appropriate pleadings . . . stat[ing] the reasons that

DADS may not be appointed guardian”). Because the probate court had subject-

matter jurisdiction to appoint a permanent guardian for Wooley, it did not err by

denying DADS’s plea to the jurisdiction. See Tex. Est. Code Ann. § 1104.101

(West 2014) (requiring probate court to appoint a permanent guardian for an



      3
        The dissenting opinion relies on Miranda for the proposition that DADS is
entitled to immunity from suit as a state agency, and I agree. But I believe that
the court investigator’s application for a permanent guardian is not a suit against
DADS as was the case in Miranda.


                                          6
incapacitated person “according to the circumstances and considering the

incapacitated person’s best interests”).

      DADS’s argument that section 161.101 is a jurisdictional bar to its

appointment as permanent guardian also does not implicate the probate court’s

subject-matter jurisdiction. It is, on the one hand, an argument attempting to

raise DADS’s alleged immunity from liability, which is not appropriately raised in

a plea to the jurisdiction. See Taylor, 106 S.W.3d at 696. The probate court has

the ultimate responsibility to determine whether permanent guardianship is

appropriate and who should serve as guardian. A finding that the probate court

has this jurisdiction and authority, does not preclude DADS from arguing that

section 161.101 prohibits the appointment of DADS in this case. Accordingly, we

should not address these arguments in our review of the probate court’s

conclusion that it had subject-matter jurisdiction over the investigator’s

application and the guardianship proceedings.

      With these comments, I concur in this court’s judgment.




                                                  /s/ Lee Gabriel
                                                  LEE GABRIEL
                                                  JUSTICE

DELIVERED: June 2, 2016




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