## 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

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

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### CONCURRING MEMORANDUM OPINION 1

---------- I agree with the majority opinion’s ultimate conclusion that the probate court’s order denying the amended plea to the jurisdiction file d by appellant the Department of Aging and Disa bility Services (DADS) must be affirmed. I write separately to delineate my bases for this conclusion. No party disputes that DADS, specifically it s guardianship-services program, received a referral to assess t he appropriate guardianship services

1 See Tex. R. App. P. 47.4.2 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 t he appointment of a permanent guardian, “possibly” DADS. See generally Tex. Est. Code Ann. § 1054.152 (West 2014) (delineating general duties of court-appo inted investigator). The probate court set a September 2014 hearing on the app lication for a permanent guardian. DADS filed a plea to the jurisdiction contending that it had completed its assessment of Wooley and “determined t hat guardianship was not appropriate”; thus, DADS argued that the probate court had no jurisd iction 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 perman ent 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, Wo oley’s guardian ad litem filed an application for the appoint ment of a temporary guar dian, “possibly” DADS, on August 11, 2014. See Tex. Est. Code Ann. § 1251.0 03 (West Supp. 2015). The trial court set a hearing on the application for a tempor ary 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 fo r temporary guardianship” because “the [Estates ] Code expressly provides that the Court may appoint3 DADS as a tempor ary guardian.” See generally id. § 1022.005 (West 2014) (conferring exclusive jurisdiction on co unty probate court for “all guardianship proceedings”), § 1251.011 (West 2014) (allowing ap pointment of DADS as temporary guardian “only as a last resort ”). The probate court, after hearing evidence, entered an order appointing DA DS as Wooley’s temporary guardian over DADS’s objection. See id. §§ 1251.001, .010 (Wes t 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 outsi de of the probate court’s subject-matter jurisdiction. After the probate court appointed DA DS 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 perman ent guardian. DADS then filed an amended plea to the jurisdic tion, again arguing that section 161.101 barred its appointment as permanent gu ardian and asserting for the first time that it was entitled to immunity from suit and liabilit y as an agency of the State, which had not been affirmatively waived. DADS re quested that the prob ate court “dismiss” DADS and “strike those portions of th e [investigator’s] pleadings” requesting appointment of DADS as a permanent g uardian. When the trial court held its September 2014 hearing on the investigator’s application for appointment of a permanent guardian, DADS raised the pr obate court’s lack of subject-matter4 jurisdiction based on sectio n 161.101 and on its immuni ty from suit. The trial

court stated that it woul d take DADS’s amended pl ea and, presumably, the application for appointment of a permanen t guardian “under advisement.” That same day, the trial court entered an or der denying DADS’s am ended plea to the jurisdiction. The record reflects that a permane nt guardian has not been appointed, and it appears DADS continue s to serve as Wooley’s temporary guardian. On appeal, DADS argues that the probate court did not have subjectmatter jurisdiction over it because no valid waiver of its sovere ign immunity exists

and it has not consented to suit. DADS further assert s that any ap pointment of DADS as the permanent guardian is “jur isdictionally 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 g uardian. Immunity from liability is not an appropriate subject for a plea to the jurisdiction because it does not implicate a trial court’s subjec t-matter jurisdiction; thus, any immunity from liability that DADS might be entitled to should not be addressed in this appeal from the trial cour t’s denial of DADS’s pl ea 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 liabilit y in its brief on appeal. But DADS’s argument that the probate court lacked jurisd iction based on its alleged immunity from suit should be addressed.5 DADS currently is a state agency. 2 See Tex. Hum. Res. Code Ann. § 161.002 (West 2013). In general, state ag encies 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 in vestigator’s applicat ion 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. Wa ter 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. Co de § 7.905 (2016) (Tex. Dep’t of Aging & Disa bility Servs., DADS Admin. Responsibilities) (stating that provisions governing negotiation an d mediation of contra ct claims brought against DADS does not waive its immunityfrom suit or liability). Again, the investigator’s application for a permanent guardian fo r Wooley was not a suit brought against DADS. Inde ed, the cases cited by DADS in its brief are cases involving claims brought direct ly 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 abolit ion will not affect any actions taken by DADS before that date. See id. § 531.0202(c).6 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 co mpany 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 es tablish that it was entitled to immunity from suit because the application for ap pointment 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 prop erly before the cour t 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 guardiansh ip and assessment duties); 40 Tex. Admin. Code § 10.203 (specifying DADS’s assessment duties, including requiring it to file “appropriate pleadings . . . stat[i ng] the reasons that DADS may not be appointed guardian”). Because the probate court had subjectmatter 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 su it as a state agency, and I agree. But I believe that the court investigator’s app lication for a permanent guar dian is not a suit against DADS as was the case in Miranda

.7 incapacitated person “according to th e circumstances a nd considering the incapacitated person’s best interests”). DADS’s argument that section 161.101 is a jurisdictional bar to its appointment as perma nent 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 determin e whether permanent guardianship is appropriate and who should serve as guardian. A find ing 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 guar dianship proceedings. With these comments, I conc ur in this court’s judgment.

/s/ Lee Gabriel LEE GABRIEL JUSTICE DELIVERED: June 2, 2016