      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00784-CV



                                     Melissa Gates, Appellant

                                                  v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-01-002857, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING



                                           OPINION


               Melissa Gates appeals from a judgment granting the Texas Department of Family

and Protective Services’s plea to the jurisdiction and dismissing her lawsuit against it. As its sole

ground for dismissal, the Department had urged that Gates had failed to exhaust her administrative

remedies. Concluding that Gates was not required to exhaust any administrative remedies before

prosecuting her suit, we reverse the judgment of dismissal and remand to the district court for further

proceedings.


                                         BACKGROUND

               At relevant times, Ms. Gates and her husband have been the parents of thirteen

children, eleven of whom were adopted and some of whom have special needs. On Friday, February

11, 2000, personnel of the school district where some of the Gateses’ children were enrolled

telephoned the Department and reported that the Gateses had allegedly abused one of the children
emotionally. That evening, the Department took emergency custody of all thirteen children without

court order or consent. See Tex. Fam. Code Ann. § 262.104 (West Supp. 2007).1 The following

Monday, the Department filed, in a Fort Bend County district court, a petition to terminate

the Gateses’ parental rights and appoint the Department managing conservator. Id. § 262.105

(West 2002). A hearing was held on the same day. Id. § 262.106 (West 2002). At the conclusion

of the hearing, the trial court ordered all thirteen children immediately returned to the Gateses. See

id. § 262.107 (West 2002). Subsequently, in September 2000, the Department non-suited its

parental-termination action.

               In the meantime, Department staff had continued to investigate the report of

emotional abuse. See id. § 261.301(a) (West Supp. 2007) (with assistance from appropriate law

enforcement agencies, Department “shall make a prompt and thorough investigation of a report of

child abuse or neglect allegedly committed by a person responsible for a child’s care, custody, or

welfare. The investigation shall be conducted without regard to any pending suit affecting

the parent-child relationship.”).2 In April 2000, Department staff made administrative “summary

findings” of “reason-to-believe” that Melissa Gates is a “designated perpetrator” of “child abuse.”

See 40 Tex. Admin. Code §§ 700.511(b)(1), .512(b)(2) (2007); see also Texas Dep’t of Family

& Protective Servs. v. Barlow, No. 03-05-00469-CV, 2007 Tex. App. LEXIS 5087, at *2 & n.4

(Tex. App.—Austin June 28, 2007, pet. denied) (mem. op.) (explaining that if the Department’s staff

       1
         Because there have been no amendments to the governing statutes during the relevant time
period that are material to this proceeding, we cite the statutes’ current versions for convenience.
       2
          See also Tex. Fam. Code Ann. § 261.001(5) (West Supp. 2007) (“person[s] responsible for
a child’s care, custody or welfare” includes a child’s parents, guardians, managing or possessory
conservators, and foster parents).

                                                  2
finds, by a preponderance of the evidence, that the reported abuse or neglect occurred and that “an

individual ‘is responsible for [the] abuse or neglect of a child for whom that person has responsibility

for care, custody or welfare as defined by [family code] § 261.001(5),’ it makes a ‘summary finding’

that the individual is a ‘designated perpetrator’ of the abuse or neglect”). One consequence of such

a finding is that the “designated perpetrator’s” name is placed in the Department’s central registry

of reported child abuse and neglect cases. See Tex. Fam. Code Ann. § 261.002 (West Supp. 2007);

40 Tex. Admin. Code § 700.104 (2007). The parties do not dispute that Gates’s name was entered

into the central registry and remains there.3

               A designated perpetrator is entitled to request removal of his or her name from

the central registry based on a favorable conclusion of the Department’s administrative appeal

process or “any other final ruling which has the legal effect of ruling out all allegations against

that individual stemming from the investigation.” 40 Tex. Admin. Code § 700.523 (2007). The

legislature has mandated that “[t]he department shall by rule establish policies and procedures to

resolve complaints relating to and conduct reviews of child abuse or neglect investigations conducted

by the department.” Tex. Fam. Code Ann. § 261.309(a) (West 2002). It has specified that the

Department must provide the following administrative remedy:


              (c) If, after the department’s investigation, the person who is alleged to have
       abused or neglected a child disputes the department’s determination of whether child


       3
         Although information maintained on the central registry is generally made confidential,
during this litigation Gates has continually disclosed her placement on the registry. Cf. Brief
of Appellant, L.C. v. Texas Dep’t of Family & Protective Servs., No. 03-07-00055-CV
(Tex. App.—Austin notice of appeal filed Jan. 29, 2007) (party identified by pseudonym challenging
placement on central registry).

                                                   3
       abuse or neglect occurred, the person may request an administrative review of the
       findings. A department employee in administration who was not involved in or did
       not directly supervise the investigation shall conduct the review. The review must
       sustain, alter, or reverse the department’s original findings in the investigation.

               (d) Unless a civil or criminal court proceeding or an ongoing criminal
       investigation relating to the alleged abuse or neglect investigated by the department
       is pending, the department employee shall conduct the review prescribed by
       Subsection (c) as soon as possible but not later than the 45th day after the date the
       department receives the request. If a civil or criminal court proceeding or an ongoing
       criminal investigation is pending, the department may postpone the review until the
       court proceeding is completed.

              (e) A person is not required to exhaust the remedies provided by this section
       before pursuing a judicial remedy provided by law.

               (f) This section does not provide for a review of an order rendered by a court.


Id. § 261.309.     The Department’s rules further elaborate that this administrative remedy,

which it terms an “Administrative Review of Investigative Findings” (ARIF), “is an informal

review in which the requestor, investigation worker, and investigation supervisor may

appear, make statements, provide relevant written materials, and ask questions,” although “[o]ther

interested individuals may participate or provide information at the sole discretion of the reviewer.”

40 Tex. Admin. Code § 700.516(f) (2007). “The reviewer may review the investigation case record,

ask questions, and gather other relevant information,” and “[t]he formal rules of evidence do not

apply.” Id. § 700.516(g).

               The Department by rule has created additional procedural stages in its administrative

review process. Simply described, the Department’s rules provide two “tracks” for appeals of its

administrative findings of child abuse or neglect. Under one track, a person dissatisfied with the

outcome of an ARIF may appeal to the Department’s Office of Consumer Affairs. Id. §§ 702.801-

                                                  4
.849 (2007). The Department apparently maintains that no further administrative appeal lies

from that determination and that the proceeding is not a “contested case” under the APA that would

entitle the complaining party to judicial review under the APA.4 Under the other track, the

complaining party is afforded the right to a contested-case hearing before the State Office of

Administrative Hearings, followed by a right to judicial review. Id. §§ 730.1701-.1702 (2007); see

Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 199

(Tex. 2004). The Department’s rules make the SOAH track available only to “any alleged

perpetrator about whom a finding of child abuse or neglect or adult abuse, neglect, or exploitation

is to be released without that individual’s consent” or “against whom an adverse action”—as defined

elsewhere in the rules—“is to be taken by the department.” Id. § 730.1702(a), (b). When an

administrative appeal is on this track, the Department has purported to confer discretion on itself to

grant or “waive” an ARIF and proceed directly to SOAH. Id. § 700.516(j) (“Notwithstanding

anything in this section, if an individual is entitled to an administrative hearing before the State

Office of Administrative Hearings (SOAH), [the Department] may, in its sole discretion, waive the

conduct of an ARIF and proceed directly to the SOAH hearing”); see also id. § 700.605 (2007)

(where “release hearing” is required, if “the person filing the appeal has not already been given an

[ARIF] relating to those same findings . . . [the Department] may, at its own discretion, offer an

ARIF prior to scheduling a release hearing.”).




       4
        Brief of Appellee at 5, L.C. v. Texas Dep’t of Family & Protective Servs., No. 03-07-
00055-CV (Tex. App.—Austin notice of appeal filed Jan. 29, 2007).

                                                  5
               In April 2000, Gates timely requested an ARIF, a step that ordinarily would have

triggered the 45-day deadline for the Department to conduct the review. See Tex. Fam. Code Ann.

§ 261.309(d); 40 Tex. Admin. Code § 700.516(d). However, the Department, purporting to rely on

the “pending litigation” exception to the 45-day deadline, declined to schedule the ARIF until mid-

2006. See Tex. Fam. Code Ann. § 261.309(d); 40 Tex. Admin. Code § 700.516(e).5

               Meanwhile, on August 30, 2001, Gates filed the lawsuit that gives rise to this appeal.

Among other theories, Gates alleges that the Department’s findings and ongoing maintenance of her

name in its central registry deprive her of her fundamental right and liberty interest in familial

integrity without due process of law. Gates seeks declarations that her designation and continued

placement in the registry violates her due process rights,6 as well as a mandatory injunction and

mandamus compelling the Department to purge its registry of all information relating to her.

               Gates’s suit was initially set for trial on April 24, 2006, but was later reset for

October 2, 2006. During the interim, on June 13, 2006, the Department’s “Deputy Regional

Director, Region 3, Child Protective Services” wrote the Gateses, giving notice that the ARIF they

had requested six years earlier “will now be held,” advising that “I have set aside time to meet

with you on July 13, 2006, from 12:30 p.m. to 2:00 p.m.,” and requesting the Gateses to confirm

their availability. Emphasizing “our fervent desire to have our names cleared in every regard” and



       5
          The Department apparently relied on the pendency of the parental-termination proceeding
and, later, on a section 1983 action the Gateses filed in federal court against the Department on
behalf of their children. The Gateses question this explanation, suggesting “gaps” and observing that
the Department ultimately elected to schedule the ARIF while the federal litigation was still pending.
       6
         See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1997 & Supp. 2007). Gates
also sought attorney’s fees. Id. § 37.009 (West 1997).

                                                  6
resulting interest in not “leav[ing] any stone unturned in preparation for the hearing,” the Gateses

responded on June 22 with several questions regarding the procedures “at the hearing,” including

whether and how their witnesses (including “numerous doctors, psychologists, and social workers”

or their children) could present testimony, whether or how state workers would be compelled to

attend, and whether they would need a court reporter. They expressed concern that scheduling

problems with their witnesses might render the proposed date infeasible and that the allotted

90 minutes would be inadequate. The Department official responded on July 7 with a short letter

summarizing the informal and limited review procedures of the ARIF and proposing dates for

rescheduling the ARIF. This prompted further inquiries from the Gateses. Several more similar

rounds of correspondence followed, without agreement as to a date for the ARIF.7

                On September 25, 2006, the Department faxed to Gates a letter from its “Assistant

Commissioner, Child Protective Services,” chiding the Gateses for what the Department

characterized as their “refusal to confirm any date that has been offered to you for an administrative

review” and giving notice that the Department was unilaterally “waiving” the ARIF and relegating

Gates to seeking a contested-case hearing before SOAH.8 See 40 Tex. Admin. Code § 700.516(j).

The letter stated that Gates had thirty days to file a written request for their “formal due process

hearing” before SOAH or waive her right to contest the administrative findings. The letter closed

with the following warning:




       7
           The Department introduced this correspondence in support of its plea to the jurisdiction.
       8
          In its plea to the jurisdiction, the Department acknowledges that it actually made the
decision to waive the ARIF four days earlier, on September 21, 2006.

                                                  7
       If you waive your right to a due process hearing or the SOAH judge upholds the
       abuse and/or neglect finding, [the Department] will be able to release your name and
       the finding to persons who monitor your access to, custody over, or control of
       children. This may jeopardize your ability to work or to be present in childcare
       related occupations, to work for certain volunteer agencies, or to be a foster or
       adoptive parent.


               On the same day that it notified Gates that it had “waived” her ARIF and would

be proceeding to SOAH, the Department filed a plea to the jurisdiction seeking to have Gates’s

lawsuit dismissed. The sole asserted basis for the plea was that Gates had failed to exhaust

her administrative remedies—the SOAH hearing. A hearing on the plea to the jurisdiction was

held three days later. At the hearing’s conclusion, the district court granted the plea and dismissed

Gates’s lawsuit in its entirety.9 This appeal followed.


                                            ANALYSIS

               On appeal, Gates brings three issues, arguing principally that the district court erred

in concluding that it lacked subject-matter jurisdiction and in dismissing the suit in its entirety. As

subsidiary contentions, Gates urges that the Department acted in excess of its statutory authority in

purporting to limit her administrative and judicial remedies and that section 700.516(j) of the

administrative code did not authorize the Department to unilaterally waive her ARIF and relegate

her to a SOAH hearing.

               An exhaustion-of-administrative-remedies requirement is a corollary of an agency’s

exclusive jurisdiction to make the initial determination in a dispute. See Texas Mut. Ins. Co. v. Texas


       9
         The district court also entered findings of fact and conclusions of law, but they are
ultimately immaterial to the legal questions that are dispositive of this appeal.

                                                  8
Dep’t of Ins., 214 S.W.3d 613, 616 (Tex. App.—Austin 2006, no pet.) (“[W]here an agency has

exclusive jurisdiction, the courts have no subject matter jurisdiction, and a party can turn to the

courts only after first exhausting all administrative remedies.”); Department of Protective

& Regulatory Servs. v. Schultz, 101 S.W.3d 512, 518 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Our analytical starting point for determining whether a trial court or administrative agency has

subject-matter jurisdiction over a dispute is article V, section 8 of the Texas Constitution. It provides

that a district court’s jurisdiction “consists of exclusive, appellate, and original jurisdiction of

all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original

jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or

administrative body.” Tex. Const. art. V, § 8. The legislature has provided by statute that district

courts possess “the jurisdiction provided by Article V, Section 8, of the Texas Constitution,” and

“may hear and determine any cause that is cognizable by courts of law or equity and may grant any

relief that could be granted by either courts of law or equity.” Tex. Gov’t Code Ann. §§ 24.007-.008

(West 2004). Thus, “[c]ourts of general jurisdiction presumably have subject matter jurisdiction

unless a contrary showing is made.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d

212, 220 (Tex. 2002).

                By contrast, “there is no presumption that administrative agencies are authorized

to resolve disputes. Rather, they may exercise only those powers the law, in clear and express

statutory language, confers upon them.” Id. “Courts will not imply additional authority to agencies,

nor may agencies create for themselves any excess powers.” Id. The courts are not divested by an

agency of the subject-matter jurisdiction they would otherwise possess to adjudicate a dispute unless

the legislature has granted the agency exclusive jurisdiction, or the sole power to make the initial

                                                   9
determination in the dispute. Id. at 221; Bexar Metro. Water Dist. v. City of Bulverde, 156 S.W.3d

79, 90 (Tex. App.—Austin 2004, pet. denied). Whether an agency has exclusive jurisdiction is

determined by construction of the relevant statutory scheme. See Thomas v. Long, 207 S.W.3d 334,

340 (Tex. 2006). The legislature’s intent to grant an agency the sole authority to make the initial

determination in a dispute may be reflected in either express statutory language to that effect or the

overall statutory scheme. Id. at 340-42.

               At oral argument, the Department conceded that Gates was not required to exhaust

any administrative remedies before prosecuting her due-process claims challenging the Department’s

procedures related to its central registry and administrative child abuse or neglect determinations.

See Juliff Gardens, L.L.C. v. Texas Comm’n on Envtl. Quality, 131 S.W.3d 271, 279

(Tex. App.—Austin 2004, no pet.). Consequently, it acknowledges that the district court erred in

dismissing these claims. However, the Department urges that, to the extent Gates seeks to challenge

the merits of the Department’s administrative findings against her, those claims must be adjudicated

in the SOAH proceeding.

               We first observe that Gates’s live pleadings appear to assert only the sorts of due-

process challenges that the Department concedes Gates may prosecute in district court.10 Even


       10
           Gates pleads only that the Department’s procedures for initial risk assessment,
administrative determination of abuse, maintaining of her name in the central registry, and continued
“monitoring” of her family on that basis violate her fundamental right and liberty interest in familial
integrity without due process of law. Specifically, Gates alleged that she was “denied a fair
and impartial determination” because (1) “investigators are not trained nor, directed nor, is it their
focus to gather and develop exculpatory evidence” and the Department here “ignored and
disregarded exculpatory information”; (2) the Department “is charged with gathering evidence and
is also charged with ‘adjudicating’ Plaintiff as a ‘perpetrator’”; (3) the Department “immediately
filed a civil suit against Plaintiff [that] creates an adversarial situation”; (4) the Department’s
requirement to “prove to the Court the reason for taking possession of the children” also creates an

                                                  10
assuming that Gates’s pleadings could be construed to challenge the merits of the administrative

findings themselves, however, we conclude that the legislature has not vested exclusive jurisdiction

over such complaints in the Department.

                In section 261.309 of the family code, as noted, the legislature explicitly provided

that the ARIF remedy is not exclusive of any judicial remedies: “A person is not required to exhaust

the remedies provided by this section before pursuing a judicial remedy provided by law.”

Tex. Fam. Code Ann. § 261.309(e). The Department does not dispute this, but instead urges that its

purported “waiver” of the pending ARIF in favor of a SOAH contested-case proceeding somehow

confers exclusive jurisdiction on itself, through SOAH, to adjudicate Gates’s claims. We reject

that premise.

                Some of our sister courts have concluded that the legislature delegated exclusive

jurisdiction to the Department to adjudicate, through SOAH contested-case hearings, disputes arising

from its investigations of its licensees. See Schultz, 101 S.W.3d at 518-20, 21-22 (observing that the

family code provisions governing investigations of “foster homes” incorporated chapter 42 of the

human resources code, which contained an exhaustion-of-remedies requirement). But Gates is not

a licensee of the Department, and the legislature has not required her to pursue complaints regarding

Department investigations through SOAH. Instead, it has mandated that she receive the ARIF



“adversarial situation”; and (5) “the ‘preponderance of the evidence’ standard is whatever evidence
[the Department] deems credible and a ‘preponderance.’”

        Gates also pled that she was denied due process by the application of a preponderance-of-the-
evidence standard rather than clear-and-convincing evidence, “because of several unconstitutional
policies and procedures,” the Department’s “total discretion” in its determination and absence of
judicial oversight, and the vagueness of the Department’s standards.

                                                 11
remedy and explicitly made it non-exclusive of any judicial remedies she may possess. Tex. Fam.

Code Ann. § 261.309(e). The SOAH proceeding that the Department is attempting to force upon

Gates, in short, is a creature entirely of its own making, ostensibly section 700.516(j). But exclusive

jurisdiction of an agency, again, exists only when and if the legislature divests the judiciary

of the subject-matter jurisdiction it otherwise presumptively possesses to adjudicate a dispute.

Subaru, 84 S.W.3d at 221. We reject the notion that by promulgating or applying section 700.516(j),

the Department could divest the judiciary of its subject-matter jurisdiction.

               Furthermore, we agree with Gates that section 700.516(j) does not authorize the

agency to unilaterally “waive” her ARIF remedy and force her into a SOAH contested-case

proceeding that she does not want. “We construe administrative rules, which have the same force

as statutes, in the same manner as statutes.” Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248,

254 (Tex. 1999). “Unless the rule is ambiguous, we follow the rule’s clear language.” Id. Although

we defer to an agency’s interpretation where there is vagueness, ambiguity, or room for policy

determinations in the regulation, we cannot defer to an administrative interpretation that is plainly

erroneous or inconsistent with the regulation or the underlying statute. Id. at 254-55 (quoting Public

Util. Comm’n of Tex. v. Gulf States Util. Co., 809 S.W.2d 201, 207 (Tex. 1991)); BFI Waste Sys. of

N. Am., Inc. v. Martinez Envtl. Group., 93 S.W.3d 570, 575 (Tex. App.—Austin 2002, pet. denied).

Here, the Department’s interpretation of section 700.516(j) is contrary to the legislature’s express

mandate that Gates have an ARIF if she timely requests it.




                                                  12
                                          CONCLUSION

               For these reasons, we conclude that the district court erred in holding that it lacked

subject-matter jurisdiction because Gates failed to exhaust administrative remedies. We accordingly

reverse the judgment of the district court dismissing Gates’s suit and remand for further proceedings.



                                               _____________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Reversed and Remanded

Filed: April 18, 2008




                                                 13
