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 

 1See 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 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 
3 

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 
4 

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 subjectmatter 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. 
5 

 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 

 2Effective 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). 
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 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 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 

 3The 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. 
7 

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