Protective & Regulatory Services v. Schutz, 01-00-01245-CV.

Citation101 S.W.3d 512
Decision Date19 December 2002
Docket NumberNo. 01-00-01245-CV.,01-00-01245-CV.
PartiesDEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellant, v. AnnJeanette SCHUTZ and Mark Schutz, Appellees.
CourtCourt of Appeals of Texas

Page 512

101 S.W.3d 512
AnnJeanette SCHUTZ and Mark Schutz, Appellees.
No. 01-00-01245-CV.
Court of Appeals of Texas, Houston (1st Dist.).
December 19, 2002.
Rehearing Overruled April 24, 2003.

Page 513


Page 514

Craig Carter, Assistant Attorney General, General Litigation Division, Austin, for Appellant.

David N. Anderson, Pearland, Dominic J. Merino, Alvin, for Appellees.

Panel consists of Justices MIRABAL, NUCHIA, and RADACK.



This is an appeal from a bench trial in a declaratory-judgment action. The appellees, AnnJeanette and Mark1 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

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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 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.


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

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pending before SOAR. 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 Ann-Jeanette 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.

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.2 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

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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 SOAR 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 Dept. 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 Dept. 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.

B. Primary Jurisdiction and...

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