                           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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                  DISSENTING MEMORANDUM OPINION1

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      Absent waiver or consent to suit, DADS, a state entity, is entitled to

sovereign immunity from suit. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 224 (Tex. 2004).          While not styled as such, the application for

appointment of DADS as the permanent guardian for Wooley is tantamount to a

lawsuit being brought against DADS. See Tex. Est. Code Ann. § 1051.103(a)(5)


      1
          See Tex. R. App. P. 47.4.
(West 2014) (providing that “the person named in the application to be appointed

guardian” is entitled to service of citation “to appear and answer” the application).

While the goal of promoting and protecting the well-being of an incapacitated

person is laudable, this action seeks to accomplish its goal in an impermissible

manner by controlling the action of a state agency, namely, compelling DADS to

serve as a permanent guardian when it has not consented to do so.

      DADS properly filed a plea to the jurisdiction, contesting the trial court’s

authority to consider the matter before it—the application for appointment of

DADS as a permanent guardian.               See Miranda, 133 S.W.3d at 225–26

(“Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction

and thus is properly asserted in a plea to the jurisdiction.”). Properly granted, the

trial court would have dismissed the permanent guardianship application pending

against DADS but would have retained its authority with regard to DADS’s

continuing service as temporary guardian. In other words, DADS would not be

entitled to be dismissed from the proceeding altogether, but it would be relieved

of the burden of defending an action seeking to compel it to serve as a

permanent guardian.

      Because I would hold that the trial court erred by denying DADS’s plea to

the jurisdiction, I respectfully dissent.


                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE
DELIVERED: June 2, 2016


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