Texas Health and Human Services Commission v. Willow Bend Center

NO. 12-21-00147-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TEXAS HEALTH AND HUMAN § APPEAL FROM THE 7TH
SERVICES COMMISSION,
APPELLANT
§ JUDICIAL DISTRICT COURT
V.

WILLOW BEND CENTER, § SMITH COUNTY, TEXAS
APPELLEE

MEMORANDUM OPINION
The Texas Health and Human Services Commission (HHS) appeals the trial court’s grant
of a temporary injunction in favor of Willow Bend Center. In two issues, HHS contends the trial
court lacked jurisdiction to issue the injunction and that the injunction is overbroad. We reverse
and remand.

BACKGROUND
Willow Bend is a residential treatment facility for children with special needs and has
been licensed since 2010. On March 9, 2021, the Department of Family and Protective Services
(the Department) notified Willow Bend that it was suspending all new placements “due to
multiple Reason to Believe dispositions related to abuse and neglect allegations” at Willow
Bend. Willow Bend was also notified that the Department had terminated their contract. On
March 23, HHS notified Willow Bend that it intended to revoke Willow Bend’s residential
childcare license. The notice cited a “repetition pattern of Reason to Believe findings for Abuse
and Neglect” as well as “a risk to the health or safety of children.” HHS further ordered Willow
Bend to cease operations pending the outcome of its administrative appeals as required by the
Texas Human Resources Code.

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On June 7, Willow Bend filed suit against HHS seeking, in part, a temporary injunction
to allow it to continue operating during the pendency of its administrative appeals. HHS,
although it contends it was not served with the lawsuit, filed a response in opposition to the
request for a temporary injunction. Following a hearing, the trial court granted Willow Bend’s
request for a temporary injunction, finding that Willow Bend does not pose a health or safety risk
to children. This appeal followed.

SOVEREIGN IMMUNITY
In its first issue, HHS argues that Willow Bend has not sufficiently pleaded a cause of
action that defeats its sovereign immunity. Alternatively, HHS urges that the trial court’s
injunction is broader than the scope of the limited immunity waiver.
Standard of Review
Sovereign immunity protects state agencies from lawsuits unless the Legislature waives
the immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011);
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Tex. Dep’t of
Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.–El Paso 2018, no pet.); Phillips v.
Tex. Dep’t of Criminal Justice, 366 S.W.3d 312, 315 (Tex. App.–El Paso 2012, no pet.). A
governmental unit’s sovereign immunity deprives a trial court of subject matter jurisdiction.
Miranda, 133 S.W.3d at 225–26; Tirado v. City of El Paso, 361 S.W.3d 191, 194 (Tex. App.–El
Paso 2012, no pet.). The Legislature has created a limited waiver of immunity for childcare
facilities seeking injunctive relief when they have been told to cease operations. The waiver
states in pertinent part:

A person who has been notified by the commission that the facility or home may not operate under
this section may seek injunctive relief from a district court in Travis County or in the county in
which the facility or home is located to allow operation during the pendency of an appeal. The
court may grant injunctive relief against the commission’s action only if the court finds that the
child-care operation does not pose a health or safety risk to children. A court granting injunctive
relief under this subsection shall have no other jurisdiction over an appeal of final commission
action unless conferred by Chapter 2001, Government Code.

TEX. HUM. RES. CODE ANN. § 42.072(e) (West Supp. 2021).
Ultimately, we review de novo the issue of whether a trial court has subject matter
jurisdiction. See Miranda, 133 S.W.3d at 226–27; Flores, 555 S.W.3d at 662. In so doing, we

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must accept as true all factual allegations in the petition. State of Tex. Parks & Wildlife Dep’t v.
Morris, 129 S.W.3d 804, 807 (Tex. App.–Corpus Christi 2004, no pet.). We further must
examine the pleader’s intent and construe the pleading in the plaintiff’s favor. See Cty. of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Dep’t of Transp. v. Ramirez, 74
S.W.3d 864, 867 (Tex. 2002). Subject matter jurisdiction is an issue that may be raised for the
first time on appeal; it may not be waived by the parties. Tex. Ass’n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 445 (Tex. 1993).
If the pleadings affirmatively negate the existence of jurisdiction, a plea to the
jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Brown, 80
S.W.3d at 555. However, the mere failure of a petition to state a cause of action does not show a
want of jurisdiction in the trial court. Bybee v. Fireman’s Fund Ins. Co., 331 S.W.2d 910, 917
(Tex. 1960). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does
not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency, and the plaintiff should be afforded the opportunity to amend. See id.
Analysis
HHS concedes that Section 42.072(e) contains a limited waiver of sovereign immunity.
However, it urges that Willow Bend’s pleadings were not specific enough to invoke the waiver.
Specifically, HHS contends that Willow Bend’s failure to plead that it does not pose a risk to
health or safety of children is fatal to Willow Bend’s cause. We agree.
In its pleadings that include an original petition and two amended petitions, Willow Bend
referenced Section 42.072 and stated that it gave the trial court jurisdiction over the case.
However, it did not plead that Willow Bend does not pose a health or safety risk to children.
Instead, it merely states that Section 42.072 permits it to seek an injunction so that it can
continue to operate during the pendency of its administrative appeal. It references the Texas
Administrative Code for its proposition that it can continue to operate during its appeal of HHS’s
revocation decision and cites to the Texas Constitution for its due process argument. 1 When
requesting both a temporary restraining order and temporary injunction, Willow Bend alleged
that its application for injunctive relief is authorized by Section 42.072. It further explained the
harm that failing to grant injunctive relief would cause Willow Bend, i.e., closing a private entity

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40 TEX. ADMIN. CODE § 745.8875.

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for a period of five years, which would be “career-ending.” Willow Bend alleged that it
considers the administrative appeal process “unfair and untimely,” which it contends supports its
request for a temporary injunction.
To establish that a trial court has jurisdiction over a tort claim against a state agency, a
plaintiff must allege consent to suit either by reference to a statute or express legislative
permission and plead facts that fall within the scope of the waiver. Wilson v. Tex. Workers’
Compensation Comm’n, No. 12-01-00337-CV, 2003 WL 22681793, at *4 (Tex. App.—Tyler
Nov. 13, 2003, no pet.) (mem. op.) (citing Tex. Dep’t of Transp. v. Jones, 8 SW.3d 636, 638
(Tex. 1999) and Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)).
Section 42.072 states that the trial court has jurisdiction to impose an injunction if the childcare
facility does not pose a risk to the health or safety of children. TEX. HUM. RES. CODE ANN.
§ 42.072. Willow Bend failed to plead that it did not pose a risk to the health or safety of
children. Therefore, Willow Bend has not pleaded facts within the scope of the waiver, and it
has not shown that sovereign immunity from suit has been waived. However, the petitions do
not affirmatively demonstrate incurable defects in jurisdiction; therefore, Willow Bend should be
afforded the opportunity to amend. See Brown, 80 S.W.3d at 555. Accordingly, we sustain
HHS’s first issue. 2

DISPOSITION
Having sustained HHS’s first issue, we reverse the trial court’s judgment and remand the
case for further proceedings consistent with this opinion.

BRIAN HOYLE
Justice

Opinion delivered April 6, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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Because HHS’s first issue is dispositive, we need not address its remaining arguments or issues. See TEX.
R. APP. P. 44.1.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 6, 2022

NO. 12-21-00147-CV

TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellant
V.
WILLOW BEND CENTER,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 21-1308-A)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the
same being considered, because it is the opinion of this Court that there was error in judgment of the court
below, it is ORDERED, ADJUDGED and DECREED by this Court that the judgment be reversed and
the cause remanded to the trial court for further proceedings in accordance with the opinion of this
Court; and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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