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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2002 » Texas Department of Protection and Regulatory Services, et al v. Schutz, Ann Jeanette--Appeal from 122nd District Court of Galveston County
Texas Department of Protection and Regulatory Services, et al v. Schutz, Ann Jeanette--Appeal from 122nd District Court of Galveston County
State: Texas
Court: Texas Northern District Court
Docket No: 01-00-01245-CV
Case Date: 12/19/2002
Plaintiff: Wright, Gerald Anthony
Defendant: Andy Collins and Texas Department of Criminal Justice--Appeal from 12th District Court of Walker Co
Preview:Texas Department of Protection and Regulatory
Services, et al v. Schutz, Ann Jeanette--Appeal from
122nd District Court of Galveston County
Opinion issued December 19, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-00-01245-CV
DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES,
Appellant
V.
ANNJEANETTE SCHUTZ AND MARK SCHUTZ, Appellees
On Appeal from the 306th District Court
Galveston County, Texas
Trial Court Cause No. 00-CV-0194
O P I N I O NThis is an appeal from a bench trial in a declaratory-judgment action. The appellees, AnnJeanette and
Mark // Schutz ( the Schutzes ), brought against the Department of Protective and Regulatory Services ( the department
). The Schutzes sought a declaratory judgment that the definition of neglect in Family Code section 261.001(4)(B)(i)
was unconstitutionally vague as applied to AnnJeanette and that AnnJeanette Schutz was not guilty of neglect. Tex.
Fam. Code Ann. 261.001(4)(B)(I) (Vernon 2002). The district court enjoined the department from holding the
administrative hearing. After a bench trial, the district court rendered judgment that AnnJeanette Schutz was not guilty
of neglect and that section 261.001(4)(B)(i) was unconstitutionally vague on its face, and awarded attorney s fees to
the Schutzes counsel in the amount of $32,487.50. In five issues, the department argues the district court erred in
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rendering judgment in the Schutzes favor because: (1) the district court did not have subject-matter jurisdiction; (2) the
district court should have abated the case because an administrative hearing on the same subject was pending; (3) the
district court should have granted the department s motion for judgment because there were administrative proceedings
pending and declaratory relief was not a proper remedy; (4) the definition of neglect is not unconstitutionally vague;
and (5) AnnJeanette Schutz was guilty of neglect under the Family Code.
We reverse the district court s judgment and dismiss the cause.
Background
On September 15, 1999, Andrea O., a 14-month-old foster child who lived with the Schutzes drowned in the backyard
swimming pool at the Schutz home. On the evening Andrea O. drowned, Mark Schutz was at soccer practice with the
Schutzes son. Andrea O. was watching television in the living room with another foster child. AnnJeanette Schutz was
on the telephone in the kitchen and, although Andrea O. periodically joined AnnJeanette in the kitchen, AnnJeanette
did not continuously visually supervise Andrea O. While AnnJeanette was on the telephone, Andrea O. somehow
entered the backyard and drowned in the pool.
The department began an investigation that evening by interviewing the Schutzes. In the Schutz home, two doors lead
to the backyard, and therefore, the pool: a heavy wooden door that a child could not open and a sliding glass door that
was typically locked. Andrea O. had never exhibited she could open either door by herself. However, AnnJeanette told
the department investigator that it may have been possible for Andrea O. to open the sliding door if it were unlocked.
The department, based on its investigation, concluded the sliding door had been left unlocked and that Andrea O.
gained access to the pool by opening the door herself.
The department found that AnnJeanette Schutz was guilty of neglectful supervision because she did not maintain
adequate knowledge of Andrea O. s whereabouts to prevent the child from gaining access to the pool and because there
were not adequate barriers to prevent Andrea O. from reaching the pool. AnnJeanette Schutz requested an
administrative review. The department upheld the finding of neglect.
AnnJeanette then appealed the finding of neglect to the State Office of Administrative Hearings ( SOAH ), and SOAH
scheduled a hearing. However, before SOAH could conduct the hearing, the Schutzes filed suit in district court and
obtained a temporary restraining order to prohibit SOAH from proceeding with the hearing.
The department filed a plea to the jurisdiction and a plea in abatement in which it argued the district court did not have
jurisdiction because the Schutzes had not exhausted their administrative remedies and, in the alternative, the district
court should abate the proceeding because of the hearing pending before SOAH. The department also sought dismissal
of its executive director, Jim Hines, who was named as a defendant in the district court proceeding. The district court
dismissed Hines, but denied the department s plea to the jurisdiction and plea in abatement.
After a bench trial, the district court rendered judgment that the Family Code definition of neglect was unconstitutional
as applied to AnnJeanette and that AnnJeanette had not neglected Andrea O. In addition to the points of error related
to the judgment against the department, the Schutzes motion to dismiss the appeal is before this Court.
Motion to Dismiss
Appellees argue the appeal should be dismissed because the department waived its right to appeal. This argument is
based on an exchange between counsel and the district court during the hearing on the department s plea to the
jurisdiction:
Mr. Anderson (counsel for the Schutzes):Your Honor, the only reason he s [Jim Hines, Executive Director of the
department] in the lawsuit in his official capacity is if the Orders need to be issued, the Court can order them.
Mr. Russell:Your Honor, I ll just stipulate. If you order the agency to do something, I ll see that it s done.
The Court:I believe you.
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Mr. Anderson:No objection, Your Honor. We ll proceed against the department.
Citing In re Long, appellees argue that a party may, by agreement, waive its right to appeal and that is what the
department did when its counsel made the statement quoted above. 946 S.W.2d 97, 99 (Tex. App. Texarkana 1997, no
writ). Long, however, dealt with a situation in which a party waived its right to appeal in a written settlement
document. Id. The court stated that because the party had expressly agreed not to appeal from the orders at issue in the
appeal, it had no option but to hold him to the terms of his agreement. // Id.
Waiver is the intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.
Robinson v. Robinson, 961 S.W.2d 292, 299 (Tex. App. Houston [1st Dist.] 1997, no writ); Gilbert v. Pettiette, 838
S.W.2d 890, 894 (Tex. App. Houston [1st Dist.] 1992, no writ). In determining if a waiver has in fact occurred, the
court must examine the acts, words, or conduct of the parties and it must be unequivocally manifested that it is the
intent of the party to no longer assert the right. Robinson, 961 S.W.2d at 299; Enterprise-Laredo v. Hachar s, 839
S.W.2d 822, 835-36 (Tex. App. San Antonio 1992, no writ). Although waiver is ordinarily a question of fact, when the
facts and circumstances are admitted or clearly established, the question becomes one of law. Motor Vehicle Bd. v. El
Paso Indep. Auto. Dealers Ass n, 1 S.W.3d 108, 111 (Tex. 1999); Tenneco, Inc. v. Enter. Prods., 925 S.W.2d 640, 643
(Tex. 1996).
The facts in this case are not in dispute. Originally, both the department and its executive director, Jim Hines, were
defendants in district court. Both filed a plea to the jurisdiction. Taken in context, the department s counsel was
reassuring the district court that, if the district court dismissed Mr. Hines from the lawsuit, the department would
comply with court orders. The statement was made pretrial, not (as in Long) in relation to a settlement or arbitration
agreement. Counsel was referring to compliance with court orders generally, not a specific order or judgment that had
already been rendered. There was no express mention of the department waiving its right to appeal; if anything, it was
agreeing only to waive any complaint regarding Mr. Hines absence from the lawsuit. It was apparently based on this
representation that the district court dismissed Mr. Hines. Based on these facts and the circumstances surrounding the
exchange, the department simply did not unequivocally manifest an intention to waive its right to appeal.
We overrule the Schutzes motion to dismiss the appeal.
Plea to the Jurisdiction
In its first issue, the department argues the district court erred when it denied the department s plea to the jurisdiction.
The department s plea was based on its argument that SOAH had primary jurisdiction of the case because the Schutzes
failed to exhaust their administrative remedies before filing suit.
A. Standard of Review
The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject-matter jurisdiction.
Texas Ass n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Texas Dep t of Criminal Justice v.
Miller, 48 S.W.3d 201, 203 (Tex. App. Houston [1st Dist.] 1999), rev d on other grounds, 51 S.W.3d 583, 589 (Tex.
2001). A plea to the jurisdiction is appropriate whenever a governmental unit believes that the trial court lacks subject-
matter jurisdiction. Miller, 48 S.W.3d at 203; Texas Dep t of Transp. v. Jones, 983 S.W.2d 90, 91-92 (Tex. App.
Corpus Christi 1998) rev d on other grounds, 8 S.W.3d 636, 637 (Tex. 1999). When deciding whether to grant a plea to
the jurisdiction, the trial court must look solely to the allegations in the petition. Miller, 48 S.W.3d at 204; Liberty Mut.
Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App. Austin 1994, writ denied). The court of appeals must take the
allegations in the petition as true and construe them in favor of the pleader. Texas Ass n of Bus., 852 S.W.2d at 446;
Miller, 48 S.W.3d at 204. Whether a trial court has subject-matter jurisdiction is a question of law and is reviewed de
novo. Mayhew v. Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Miller, 48 S.W.3d at 204.
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B. Primary Jurisdiction and Exhaustion of Administrative Remedies
Primary jurisdiction is a judicially-created doctrine in which a court may dismiss or stay an action pending a
resolution of some portion of the case by an administrative agency. Harris County Mun. Util. Dist. No. 48 v. Mitchell,
915 S.W.2d 859, 863-64 (Tex. App. Houston [1st Dist.] 1995, writ denied); Shell Pipeline Corp. v. Coastal States
Trading, Inc., 788 S.W.2d 837, 842 (Tex. App. Houston [1st Dist.] 1990, writ denied). Under the doctrine of primary
jurisdiction, a matter delegated by statute to an administrative agency for initial action must be determined by that
agency before the matter may be reviewed by a court. Harris County, 915 S.W.2d at 864; Pedraza v. Tibbs, 826 S.W.2d
695, 699 (Tex. App. Houston [1st Dist.] 1992, writ dism d w.o.j.). Primary jurisdiction applies whenever enforcement
of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special
competence of an administrative body. Shell Pipeline, 788 S.W.2d at 842 (quoting United States v. W. Pac. R.R., 352
U.S. 59, 64, 77 S. Ct. 161, 165 (1956)). It is especially appropriate to apply the doctrine when uniformity of certain
types of administrative decisions is desirable, or when there is a need for the expert and specialized knowledge of the
agencies. Shell Pipeline, 788 S.W.2d at 842. However, the phrase primary jurisdiction indicates that both an
administrative agency and a court have subject matter jurisdiction. Id. Because the doctrine presumes the district court
had subject matter jurisdiction, we consider it below in connection with whether the district court should have abated
the case. // Therefore, in this context we consider only whether the Schutzes were required to, and did, exhaust their
administrative remedies.
Under the doctrine of exhaustion of administrative remedies, when the legislature has provided a method of
administrative review, a complainant must first exhaust his administrative remedies before filing suit. Firefighters &
Police Officers Civil Serv. Comm n v. Herrera, 981 S.W.2d 728, 732 (Tex. App. Houston [1st Dist.] 1998, pet. denied);
Pedraza, 826 S.W.2d at 699. In addition, if the legislature mandates that a claimant exhaust administrative remedies,
the mandate is the equivalent of a legislative investiture of exclusive original jurisdiction in the administrative agency.
See Davis v. Methodist Hosp., 997 S.W.2d 788, 793 (Tex. App. Houston [1st Dist.] 1999, no pet.). The exhaustion of
administrative remedies is therefore a jurisdictional issue. Id. However, when there is no such provision in a statute,
there is no jurisdictional issue. Id.
C. Did The Statutory Scheme Require Exhaustion of Remedies?
The Human Resources Code and the Family Code both contain provisions that relate to the department s functions of
regulating child-care facilities and investigating abuse and neglect.
The Human Resources Code created the department. Tex. Hum. Res. Code Ann. 40.002 (Vernon 2001). The
department has primary responsibility for: (1) providing protective services for children and elderly and disabled
persons; (2) providing family support and family-preservation services which respect the fundamental right of parents
to control the education and upbringing of their children; (3) regulating child-care facilities and child-care
administrators; and (4) implementing and managing programs intended to provide early intervention or prevent at-risk
behaviors that lead to child abuse, delinquency, running away, truancy, and dropping out of school. Id.
The department is subject to the Administrative Procedure Act. Tex. Hum. Res. Code Ann. 40.006 (Vernon 2001); Tex.
Govt. Code Ann. 2001.001-.902 (Vernon 2000 & Supp. 2002). SOAH conducts hearings in contested cases for the
department. Tex. Hum. Res. Code Ann. 40.066 (Vernon 2001).
Chapter 42 of the Human Resources Code sets out the duties and responsibilities relating to child-care-licensing
programs. The Shutzes were licensed and regulated as a foster care facility under the standards and rules set up in that
chapter. See Tex. Human Res. Code Ann. 42.001-.111. (Vernon 2001 & Supp. 2002). The purpose of that chapter is to
protect the health, safety, and well-being of the children of the State who reside in child-care facilities by establishing
statewide minimum standards for their safety and protection and by regulating the facilities. Tex. Hum. Res. Code
Ann. 42.001 (Vernon Supp. 2002).
The Family Code governs how the department conducts investigations of child abuse and neglect. See Tex. Fam. Code
Ann. 261.001-.409 (Vernon 2002). Subchapters D and E of Chapter 261 require that the department conduct the
investigations in a certain manner and to make determinations relating to those investigations. Tex. Fam. Code Ann.
261.001-.316 (Supchapter D), 261.401-409 (Subchapter E) (Vernon 2002).
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Family Code section 261.301 (part of subchapter D) provides:
(a) . . . [T]he department or designated agency 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 . . .
(b) A state agency shall investigate a report that alleges abuse or neglect occurred in a facility operated, license,
certified, or registered by that agency as provided by Subchapter E.
Tex. Fam. Code Ann. 261.301(a) (Vernon 2002) (emphasis added).
Family Code section 261.401, the relevant portion of subchapter E to which section 261.301 refers, states, [a] state
agency that operates, licenses, certifies, or registers a facility in which children are located shall make a prompt,
thorough investigation of a report that a child has been or may be abused, neglected, or exploited in the facility. The
primary purpose of the investigation shall be the protection of the child. Tex. Fam. Code Ann. 261.401(b) (Vernon
2002) (emphasis added).
The department argues that chapter 42 of the Human Resources Code chapter 42 applies to the Schutzes and that it
contains a provision requiring exhaustion of remedies. The Schutzes argue that Family Code chapter 261 rather than
Human Resources Code chapter 42 governs the investigation of allegations of neglect, and chapter 261 expressly
provides an accused need not exhaust its administrative remedies before seeking judicial review.
The purpose of chapter 42 is to:
protect the health, safety, and well-being of the children of the state who reside in child-care facilities by establishing
statewide minimum standards for their safety and protection and by regulating the facilities through a licensing
program or by requiring child-care facilities to be regulated by alternative accreditation bodies.
Tex. Hum. Res. Code Ann. 42.001 (Vernon Supp. 2002). A child-care facility means:
a facility licensed, certified, or registered by the department to provide assessment, care, training, education, custody,
treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the
facility, for all or part of the 24-hour day, whether or not the facility is operated for profit or charges for the services it
offers.
Tex. Hum. Res. Code Ann. 42.002(3) (Vernon Supp. 2002). According to the department, the Schutzes operate a foster
home, and therefore must comply with chapter 42. By extension, the department argues, chapter 42 incorporates the
requirements of the Government Code that a person who has exhausted all administrative remedies available within a
state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review . . .                    . Tex. Gov t
Code Ann. 2001.171 (Vernon 2000).
With respect to the remedies available within the department, an alleged perpetrator // about whom a finding of child
abuse or neglect is to be released or against whom an adverse action is to be taken by the department is entitled to a
hearing under the Administrative Procedures Act. 40 Tex. Admin. Code 730.1701, .1702 (2002). After the
administrative law judge has rendered a final decision, either party may file a written motion for rehearing. 40 Tex.
Admin. Code 730.1716(e), (g) (2002).
The Schutzes counter that Human Resources Code chapter 42 does not apply to an agency foster home or an agency
foster group home and that because they maintain an agency foster home, // they are exempt from its exhaustion-of-
remedies requirement. They further counter that the Family Code chapter 261 governs investigations of child abuse or
neglect, and it is that statute which determines whether they must exhaust their remedies before pursuing a judicial
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remedy.
Foster Home or Agency Foster Home?
Under chapter 42, a foster home means a child-care facility that provides care for not more than six children for 24
hours a day. Tex. Hum. Res. Code Ann. 42.002(6) (Vernon Supp. 2002). An agency foster home means a facility that
provides care for not more than six children for 24 hours a day, is used only by a licensed child-placing agency, and
meets department standards. Tex. Hum. Res. Code Ann. 42.002(11) (Vernon Supp. 2002). A child-placing agency
means:
a person, including an organization, other than the natural parents or guardians of a child who plans for the placement
of or places a child in a child-care facility, agency foster home, agency foster group home, or adoptive home.
Tex. Hum. Res. Code Ann. 42.002(12) (Vernon Supp. 2002).
The Schutzes argue they operate an agency foster home because the department is a child-placing agency within the
meaning of the statute. The department argues the Schutzes operate a foster home because they are directly licensed by
the department rather than a private child-placing agency.
In construing a statute, our objective is to determine and give effect to the legislature s intent. See Albertson s, Inc. v.
Sinclair, 984 S.W.2d 958, 960 (Tex. 1999); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484
(Tex. 1998). We first look at the statute s language and presume that the legislature intended the plain meaning of its
words. See Fleming Foods v. Rylander, 6 S.W.3d 278, 282 (Tex. 1999); Albertson s, 984 S.W.2d at 960. We then
consider the object sought to be obtained, circumstances under which the statute was enacted, legislative history,
consequences of a particular construction, and administrative construction of the statute. See Tex. Gov t Code Ann.
311.023 (Vernon 1998); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). We do this regardless of
whether or not the statute is considered ambiguous on its face. Tex. Gov t Code Ann. 311.023 (Vernon 1998). Finally,
it is a rule of statutory construction that every word of a statute must be presumed to have been used for a purpose.
Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981); Eddins-Walcher Butane Co. v. Calvert, 298
S.W.2d 93, 96 (Tex. 1957).
The legislature opted to draw a distinction between foster homes and agency foster homes that turned on whether a
child-placing agency acted as an intermediary between the foster home and the department. We see no indication the
legislature intended the department to be considered a child-placing agency. Instead, the statute s language apparently
sought to treat foster homes overseen by a child-placing agency differently because the private agency is held
accountable for problems in its foster homes. Further, the Schutzes construction would essentially render all foster
homes agency foster homes regardless of whether they are licensed directly by the department or by a private child-
placing agency. This would render the distinction made by the legislature meaningless. Therefore, we hold that the
Schutzes operated a foster home within the meaning of the Human Resources Code.
Application of the Family Code
Under the Family Code, the department shall investigate reports of child abuse or neglect allegedly committed by a
person responsible for the child s care, custody, or welfare. Tex. Fam. Code Ann. 261.301(a) (Vernon 2002). A person
responsible for the child s care, custody, or welfare includes a foster parent. Tex. Fam. Code Ann. 261.001(5)(A)
(Vernon 2002). Section 261.309 provides for informal review of department investigations of abuse. Tex. Fam. Code
Ann. 261.309 (Vernon 2002). Under that section, a department employee in administration who was not involved in or
did not directly supervise the investigation may, at the accused s request, review the investigation and sustain, alter, or
reverse the department s original findings. Id. at 261.309(c). The Schutzes argue that because section 261.309(e)
provides that a person is not required to exhaust the remedies provided by this section before pursuing a judicial
remedy provided by law, they were not required to submit to a hearing before SOAH before filing suit in district court.
We disagree. Section 261.309(e) states that a person who allegedly abused or neglected a child need not request an
internal review of the department s investigation before pursuing a judicial remedy. See 40 Tex. Admin. Code
730.1702 (2002). In other words, section 261.309(e) does not confer a right on the Schutzes to resort to filing suit in
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district court without submitting to a formal administrative hearing. See 40 Tex. Admin. Code 730.1701-1716 (2002).
Further, at least with respect to allegations of abuse or neglect that occurred in a foster home, a separate section of the
Family Code governs: a state agency shall investigate a report that alleges abuse or neglect occurred in a facility
operated, licensed, certified, or registered by that agency as provided by Subchapter E. // Tex. Fam. Code Ann.
261.301(b) (Vernon 2002). In conducting an investigation for such a facility, the department shall perform the
investigation as provided by Subchapter E (not Subchapter D, the subchapter on which the Schutzes rely) and the
Human Resources Code. Id.; Tex. Fam. Code Ann. 261.401-.409 (Vernon 2002). As noted above, the definition of
child-care facility includes a foster home. See Tex. Hum. Res. Code Ann. 42.002(3), (6) (Vernon Supp. 2002). In other
words, when the alleged abuse occurred in a foster home, the department conducts the investigation under Family
Code sections 261.401-.409 and Human Resources Code chapter 42. Because the Family Code provision that deals
with investigations of abuse or neglect in a foster home refers back to the Human Resources Code (and therefore
incorporates the exhaustion-of-remedies requirement), the Schutzes were required to submit to an administrative
hearing regardless of whether the Human Resources Code or the Family Code applies.
Additional Jurisdictional Considerations
In addition to the jurisdictional issues discussed above, the consideration of sovereign immunity also affects this case.
No right of judicial review from the action of an administrative agency exists unless a statute provides for such review,
the action violates constitutional procedural due process, or the constitution waives the state s immunity from suit.
Southwest Airlines Co. v. Texas High-Speed Rail Auth., 867 S.W.2d 154, 157 (Tex. App. Austin 1993, writ denied);
see City of Port Arthur v. S.W. Bell Tel. Co., 13 S.W.3d 841, 845 (Tex. App. Austin 2000, no pet.). Although the
reasoning behind this general rule is usually unstated, the rule is a necessary corollary to the doctrine of sovereign
immunity. Southwest Airlines, 867 S.W.2d at 157.
Absent specific legislative authorization, persons aggrieved by an administrative agency s action have no recourse in
the courts due to the first principle of the doctrine of sovereign immunity the state as sovereign cannot be sued without
its permission. Id.; see Hosner v. De Young, 1 Tex. 764, 769 (1847); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d
589, 592 (Tex. App. Austin 1991, writ denied). The doctrine bars a suit for judicial review against the state unless the
state has expressly given its consent to be sued. Dillard, 806 S.W.2d at 592; see Missouri Pac. R.R. v. Brownsville
Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970). A suit against an agency of the state is considered to be a suit
against the state. Id.; see Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). The second principle of the
doctrine of sovereign immunity is that the state has immunity from liability even though the state has consented to be
sued. Dillard, 806 S.W.2d at 592.
There is no statutory law affording an aggrieved party judicial review of a formal administrative hearing under these
circumstances, even had the Schutzes submitted to the hearing. See Carrizales v. Dep t of Protective & Regulatory
Servs., 5 S.W.3d 922, 924 (Tex. App. Austin 1999, pet. denied). In Carrizales, the Austin Court of Appeals noted the
Family Code authorizes the department to conduct investigations and make determinations in reported cases of abuse
or neglect of children. See Tex. Fam. Code Ann. 261.301(a), (e)(1) & (2) (Vernon 2002). If the name of a person
found to have committed neglect of a child is placed in the central registry governing future employment with children,
then that individual is entitled to a SOAH hearing before his name may be released. See Carrizales, 5 S.W.3d at 924;
40 Tex. Admin. Code 730.1702 (2002). Pursuant to that authority, the hearing is held before an administrative law
judge of SOAH, and the administrative law judge, after hearing evidence, makes findings of fact and conclusions of
law and issues a final decision. Carrizales, 5 S.W.3d at 924. There is no provision for judicial review of the
administrative law judge s order.
In Carrizales, the appellant relied solely on the Administrative Procedure Act as a basis for his suit in district court. Id.;
see Tex. Gov t Code Ann. 2001.171 (Vernon 2000). However, the Austin court has held in numerous opinions that
section 2001.171 is a procedural provision that does not confer subject-matter jurisdiction on the district court to
entertain a petition for judicial review unless review is authorized under the agency s enabling legislation or another
statutory provision. Carrizales, 5 S.W.3d at 924; P.R.I.D.E. v. Texas Worker s Comp. Comm n, 950 S.W.2d 175, 180
(Tex. App. Austin 1997, no writ); Texas Dep t of Transp. v. T. Brown Contractors, Inc., 947 S.W.2d 655, 658 (Tex.
App. Austin 1997, writ denied); Fireman s Pension Comm n v. Jones, 939 S.W.2d 730, 732-33 (Tex. App. Austin
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1997, no writ); Employees Ret. Sys. of Texas v. Foy, 896 S.W.2d 314, 316 (Tex. App. Austin 1995, writ denied); S.C.
San Antonio, Inc. v. Texas Dep t of Human Servs., 891 S.W.2d 773, 776 (Tex. App. Austin 1995, writ denied);
Motorola, Inc. v. Bullock, 586 S.W.2d 706, 708-09 (Tex. Civ. App. Austin 1979, no writ).
The Schutzes have not identified, either in the district court or in their brief to this Court, any statute under which the
legislature has waived governmental immunityfrom suit that would entitle them to judicial review of the department s
finding of neglect. Carrizales and our search for such a statute indicates there is not one. Therefore, had the Schutzes
complied with the administrative procedure for review of the finding of neglect, they would still not be entitled to a
judicial review of the administrative law judge s order. However, Mrs. Schutz s due-process challenge of the definition
of neglect would be reviewable if, in contrast to Carrizales, she brings that claim in district court once she has
exhausted her administrative remedies. See Carrizales, 5 S.W.3d at 924.
In this case, the Schutzes refused to submit to a formal administrative hearing. Neither party argues that, in the event
the district court did not have jurisdiction, the Schutzes would not be able to seek an administrative hearing to review
the department s finding of neglect. Once they have done so, AnnJeanette Schutz // is entitled to bring her due-process
claims in district court. Because AnnJeanette Schutz did not exhaust her administrative remedies, we hold the district
court did not have subject-matter jurisdiction over her due-process claim. In all other respects, the trial court did not
have subject-matter jurisdiction regardless of whether the Schutzes exhausted their administrative remedies.
We sustain issue one.
Conclusion
We reverse the district court s judgment and dismiss the cause.
Sherry J. Radack
Justice
Panel consists of Justices Mirabal, Nuchia, and Radack.
Publish. Tex. R. App. P. 47.4.
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