In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-21-00092-CV ________________________
TEXAS HEALTH AND HUMAN SERVICES COMMISSION, APPELLANT
V.
ELLIOT DAVIS, APPELLEE
On Appeal from the 250th District Court Travis County, Texas Trial Court No. D-1-GN-20-001438; Honorable Maya Guerra Gamble, Presiding
February 23, 2022
MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.
This is an appeal by Appellant, Texas Health and Human Services Commission
(“THHSC”), from the district court’s order reversing a decision by the administrative law
judge that upheld a finding that Appellee, Elliot Davis, abused a child in the context of his position as a caregiver and counselor at a residential treatment center. 1 THHSC brings
one issue via this appeal through which it argues the administrative law judge’s finding
that Davis abused the child was supported by substantial evidence such that his name
should remain on the central registry. 2 As such, THHSC seeks the reversal of the district
court’s order that effectively removes his name from the registry. We will reverse the trial
court and render judgment reinstating the administrative law judge’s Decision and Order.
BACKGROUND
This matter arose from an incident between Davis and a child in June 2017. At
that time, twenty-two-year-old Davis had worked as a youth care counselor and caregiver
at the Burke Center in Driftwood, Texas, for ten days. The Burke Center is a residential
treatment center for boys, aged eleven to seventeen, who present with mental, emotional,
and behavioral problems. The child involved in the incident was fourteen years old, five
feet ten inches tall, and weighed 175 pounds. He had an IQ of about 70 and had
previously been neglected and suffered physical abuse. The child had a “long history of
violent behavior” and had been “kicked out” of numerous facilities. He had been “in
1 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Third Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
2 The Texas Department of Family and Protective Services maintains the central registry. The
central registry contains names of persons who have been found to have abused or neglected a child. THHSC is the agency responsible for checking the central registry as part of the background check process and for providing a person whose name is on the registry with the opportunity for a due process hearing. TEX. FAM. CODE ANN. § 261.002(a). If a person’s name is maintained on the central registry, it may be disclosed to third parties such as when a childcare provider runs a required background check regarding employment at its establishment. Tex. Dep’t of Family & Protective Servs. v. Barlow, No. 03-05-00469-CV, 2007 Tex. App. LEXIS 5087, at *3 (Tex. App.—Austin June 28, 2007, pet. denied) (mem. op.) (citing 40 TEX. ADMIN. CODE ANN. §§ 745.611, 745.615).
2 numerous fights with both staff members and residents. He had required physically
restraining similar to what [Davis] initiated in this case on numerous occasions, at least
ten to twenty that are documented[.]” Prior to the incident in question, Davis received
training in “de[-]escalation techniques and in emergency behavioral intervention.” 3
However, his practical experience was only in restraining children much smaller than the
child involved in this incident. 4 In fact, Davis was himself similar in size to the child who
was subjected to restraint in this matter.
The incident giving rise to this appeal occurred on a Sunday morning. 5 That day,
the child became upset because another resident was permitted to use a bathroom in the
older children’s dormitory. The child went outside. One counselor confronted the child in
an attempt to de-escalate the child’s agitated state and the child asked him to give him
some space. The counselor did so. Under the child’s plan, he was to be supervised at
all times when outside the building. Davis came outside, and another counselor joined
them. Several younger children were also outside, about thirty to forty feet from the child
at issue here. 6 The child refused redirection and refused to go inside. He was verbally
abusive to both counselors and threw a small stick in Davis’s direction. The stick flew
3 Under the applicable minimum standards, a restraint should only be performed when there is
immediate danger. 4Davis told an investigator that he “mostly works for the cougar dorm [consisting of the younger and smaller children].” He stated that “20% of the time he might be with the eagle dorm [consisting of the older and larger children].”
5 The record contains a video of the incident. The video does not contain audio. 6 The younger children are not visible in the video of the incident.
3 quite close to Davis. 7 The director of the facility stated that the child “threw a stick at staff
and was being aggressive and dangerous . . . this should not be happening period.” Davis
asked the child if he just threw a stick at him. The child responded, “Yeah, what the f*ck
are you going to do about it?” According to testimony, the child appeared to continue to
search the ground, ostensibly for another object to throw. The child’s history indicated
that when he began to act in this manner, he “typically reaches a point where he attempts
to physically harm someone.” That fact was mentioned several times in the child’s plan
of service and apparently, staff members were provided with summary information
concerning each child.
Davis looked at the child, then to the area where the other children were located,
and then in the direction of another counselor just out of view of the video. He nodded
and then looked back at the child. 8 The child looked at Davis, standing with his arms at
his sides. Davis approached the child and initiated a one-on-one physical confrontation
in an attempt to physically restrain the child. 9 Davis first attempted a “basket hold” but
realized that type of restraint would not work because the child was very strong. He then
initiated another type of restraint in which he held the child’s wrist and put his other hand
7 Another counselor stated that “he could not tell if [the stick] struck” Davis but “did seem to be close.” Davis told an investigator that “the stick was extremely close to him and landed next to him after hitting his shoulder.” He said he felt “threatened because [the child] has threatened him in the past.” 8 Another counselor said that at that time, Davis “is de-escalating.”
9 The program director told an investigator that there are three types of restraints that the facility uses. Team control “is done by one person on each side.” Each person holds an arm above the wrist and uses the other hand to hold the shoulder down. The second is the “Child Control Position” in which the child’s arms “are crossed over the chest and the staff is holding the child’s opposites [sic] arms by the waist level.” The child is held so as to lean on the staff and the staff are advised to keep their head close to the child to avoid “head butting.” The third is a transport position that is used as a less restrictive hold. The staff hold the child under the arm and by the wrist.
4 on the child’s shoulder. The record shows that the Burke Center had a “rule of thumb”
that two people should restrain this particular child because he was strong. The second
counselor was about ten to fifteen feet away when Davis initiated the altercation but joined
Davis a few seconds later. That counselor performed a similar restraint to that being
utilized by Davis, holding the other arm and shoulder. The child resisted and struggled
and during that time, the child and the counselors came down to the ground. The
counselor who first initiated contact with the child returned and supervised the restraint
as required under the rules. He then joined in the attempt to restrain the child because
the child resisted the attempts by the first two counselors and those counselors lost
control of the child. After a struggle, the three counselors eventually successfully
restrained the child, and the child suffered no injury. Two staff members, including Davis,
were injured during the incident. 10
Following the incident, Davis told an investigator that as the new person, he had
to show that he was able to handle the children. He could not let the child bully him.
Davis said the child was testing him and he had to show the child that he needed to
respect him. Davis said he “engaged into the restraint because he felt threatened”
because the child had “threatened him in the past.” He first attempted a “basket hold” but
then realized how strong the child was and knew that restraint would not be effective.
Davis told the investigator he felt the restraint was necessary under the circumstances
with this child. The program director agreed that the restraint was necessary because
10 The child was later arrested for assault.
5 the child had thrown a stick. This was assaultive behavior, particularly coupled with this
child’s history. He characterized throwing the stick as “a danger to himself or others.”
The Texas Department of Family and Protective Services (“the Department”)
regulates facilities that provide childcare services. When the Department receives an
allegation of abuse or neglect of children, it conducts an investigation. The Department
conducted such an investigation in this case. At the conclusion of its investigation, it
found Davis’s “actions did constitute abuse and/or neglect.” The Department found that
Davis “participated in a lengthy, unnecessary, improper, and/or prohibited restraint” of the
child. It further found that Davis “unequivocally violated applicable minimum standards
regarding discipline, punishment, and emergency behavior intervention.” The
Department determined that the “improper or prohibited restraint methods could easily
have caused physical injury to or death of [the child].” Davis appealed the Department’s
finding, and a hearing was held before an administrative law judge. Following the hearing,
the administrative law judge issued a lengthy Decision and Order by which it found the
evidence presented by THHSC was sufficient to support the Department’s finding that
Davis abused the child. Therefore, it found that Davis’s name shall be maintained on the
central registry in reference to the finding. 11
Davis appealed the administrative law judge’s Decision and Order to the district
court. A hearing was held in that court after which the judge issued an Order Granting
Plaintiff’s Petition for Judicial Review. Through that order, the district judge reversed the
11 Davis continued to work at the Burke Center for six months following this incident. He left the
facility to pursue an employment opportunity in the construction field. His departure from the facility was not related to this incident.
6 Decision and Order issued by the administrative law judge and ordered that Davis’s name
be removed from the central registry maintained by the Department. THHSC now
appeals that decision, arguing the administrative law judge’s finding that Davis abused
the child was supported by substantial evidence and thus, Davis’s name should remain
on the central registry maintained by the Department.
ANALYSIS
APPLICABLE LAW
Whether the Department’s finding and the administrative law judge’s Order and
Decision was supported by substantial evidence is a question of law. Montgomery Indep.
Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000). Therefore, the district court’s
judgment is not entitled to deference on appeal. Tex. Dep’t of Pub. Safety v. Alford, 209
S.W.3d 101, 103 (Tex. 2006) (per curiam). On appeal of that judgment, we consider the
same question presented to the district court—whether the order was supported
by substantial evidence. Montgomery Indep. Sch. Dist., 34 S.W.3d at 562.
When reviewing an agency decision under the “substantial evidence” standard, a
court “may not substitute its judgment for the judgment of the state agency on the weight
of the evidence on questions committed to agency discretion . . . .” TEX. GOV’T CODE ANN.
§ 2001.174. Whether the agency’s order satisfies the substantial evidence standard is a
question of law. Firemen’s & Policemen's Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d
953, 956 (Tex. 1984). Substantial evidence review is, in essence, “a rational-basis test
to determine, as a matter of law, whether an agency’s order finds reasonable support in
the record.” Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin
7 2017, no pet.). To meet the substantial evidence standard, one must show “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion’ of
fact.” Lauderdale v. Tex. Dep’t of Agric., 923 S.W.2d 834, 836 (Tex. App.—Austin 1996,
no writ) (citation omitted). We presume that the order is supported by substantial
evidence. Id.
Substantial evidence analysis is comprised of two inquiries: (1) whether the
agency made findings of underlying facts that logically support the ultimate facts and legal
conclusions establishing the legal authority for the agency’s decision or action and, in
turn, (2) whether the findings of underlying fact are reasonably supported by the evidence
presented. See Vista Med. Ctr. Hosp. v. Tex. Mut. Ins. Co., 416 S.W.3d 11, 26-27 (Tex.
App.—Austin 2013, no pet.). The second inquiry, or the “crux” of the substantial evidence
review, is highly deferential to the agency’s determination. Employees Ret. Sys. of Tex.
v. Garcia, 454 S.W.3d 121, 132 (Tex. App.—Austin 2014, pet. denied). “[S]ubstantial
evidence” as used in this context “does not mean a large or considerable amount of
evidence.” Id. Rather, the evidence may even preponderate against the agency’s finding,
requiring only “such relevant evidence as a reasonable mind might accept as adequate
to support a [finding] of fact.” Id. (citing Slay v. Tex. Comm’n on Env’t Quality, 351 S.W.3d
532, 549 (Tex. App.—Austin 2011, pet. denied)). The finder of fact determines the
credibility of the witnesses and the weight to be given to their testimony, see Granek v.
Tex. State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex. App.—Austin 2005, no pet.),
and we “may not substitute [our] judgment for the judgment of the state agency on the
weight of the evidence on questions committed to agency discretion[.]” TEX. GOV’T CODE
8 ANN. § 2001.174(1). 12 In contrast, the first inquiry, concerning the extent to which the
underlying facts found by the agency logically support its ultimate decision or action, may
entail questions of law that we review de novo. Garcia, 454 S.W.3d at 133. See R.R.
Comm’n of Tex. v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624
(Tex. 2011).
12 This provision reads as follows:
If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:
(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
TEX. GOV’T CODE ANN. § 2001.174.
9 APPLICATION OF LAW TO FACTS
ISSUE—IS THE ADMINISTRATIVE LAW JUDGE’S FINDING THAT DAVIS ABUSED THE CHILD SUPPORTED BY SUBSTANTIAL EVIDENCE SUCH THAT HIS NAME SHOULD REMAIN ON THE CENTRAL REGISTRY?
THHSC argues that the administrative law judge’s finding that Davis abused the
child is supported by substantial evidence and accordingly, his name should remain on
the central registry. Davis contends the administrative law judge erred in holding that
THHSC established, by a preponderance of the evidence, that he abused the child
because substantial evidence did not support that finding. Consequently, Davis argues
his name should be removed from the central registry as per the district court’s Order
Granting Plaintiff’s Petition for Judicial Review.
At issue here is whether the administrative law judge’s finding that Davis abused
the child during the June 2017 incident was supported by substantial evidence.
The definition of “abuse” applicable at the time of the incident provided that “abuse”
means:
an intentional, knowing, or reckless act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program that causes or may cause emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy.
TEX. FAM. CODE ANN. § 261.401(a)(1), Act of May 31, 2017, 85th Leg. R.S., ch. 261, §
261.401(a), sec. 32, 2017 Tex. Gen. Laws 713, 735 (repealed 2017). The Department
further stated that an act or omission is “intentional, knowing, or reckless” if the person
committing it:
10 (1) deliberately causes or might cause physical injury or emotional harm to the child;
(2) knows or should know that physical injury or emotional harm to the child is a likely result of the act or omission; or
(3) consciously disregards an unjustifiable risk of physical injury or emotional harm to the child.
40 TEX. ADMIN. CODE ANN. §745.8555(b).
Physical injury was defined as “[a]ny bodily harm, including minor scrapes, cuts,
and bruises. This includes any bodily harm resulting from the discipline of a child and
any ‘substantial physical injury.’” 40 TEX. ADMIN. CODE ANN. § 745.8555(d).
An emergency behavior intervention, such as the restraint used by Davis on the
child, is to be used only under emergency circumstances. Before using an emergency
behavior intervention, the caregiver must: (1) attempt less restrictive behavior
interventions that prove to be ineffective, and (2) determine that the situation is an
emergency. 26 TEX. ADMIN. CODE ANN. § 748.43(21).
An emergency situation is a situation in which attempted preventative de-
escalatory or redirection techniques have not effectively reduced the potential for injury,
so that intervention is immediately necessary to prevent:
(A) imminent probable death or substantial bodily harm to the child because the child attempts or continually threatens to commit suicide or substantial bodily harm;
or
(B) imminent physical harm to another because of the child’s overt acts, including attempting to harm others. These situations may include
11 aggressive acts by the child, including serious incidents of shoving or grabbing others over their objections. These situations do not include verbal threats or verbal attacks.
26 TEX. ADMIN. CODE ANN. § 748.43(21).
THHSC argues that the administrative law judge was correct in finding that there
was no emergency present here. It contends substantial evidence in the record shows
the lack of emergency circumstances. The child threw a small stick at Davis. It was not
thrown hard, did not appear to hit Davis, and fell to his side. While the child’s verbal
response included profanity when Davis asked if he threw a stick, the child did not engage
in any other behavior that could have been seen as aggressive. At the time Davis initiated
the restraint, the child was “standing still with his arms at his sides.” Additionally, the
administrative law judge determined that Davis’s assertion that the child was looking for
something else to throw was not credible. THHSC agrees and says none of these
circumstances constitute an emergency.
Further, THHSC contends the administrative law judge was correct in determining
that Davis’s actions constituted abuse. The administrative law judge determined that the
preponderance of the evidence supported a finding of abuse because Davis knew or
should have known that physical injury to the child was a likely result of the restraint he
used. Davis knew the child was approximately the same size that he was and was difficult
to restrain. Davis knew the child was strong and he was aware that his own experience
in restraining children was only on those much smaller than this child. He also knew or
should have known that the child presented “a particularly difficult challenge” because
there was a “rule of thumb” to have at least two staff members restrain the child. The
12 administrative law judge also found that the second counselor’s proximity did not change
the situation as he was too far away when Davis initiated the restraint. As such, Davis’s
actions constituted abuse under the applicable law. THHSC further argues on appeal
that this is the correct outcome in this case, not what the district court determined in its
judicial review.
Davis argues, however, that the administrative law judge incorrectly interpreted the
statutory definition of “abuse.” It is undisputed that the child did not suffer any emotional
harm or physical injury from this incident. Accordingly, the issue was whether Davis
performed an intentional, knowing, or reckless act that “may cause emotional harm or
physical injury” to the child. Davis argues that at the time of the incident, the definition of
abuse as cited above had been repealed in the 2017 legislative session, but that repeal
was not effective until September 1, 2017. He argues that the definition of abuse that
was applicable less than three months after this incident is instructive and should have
influenced the administrative law judge’s interpretation in the matter now before us.
The definition applicable as of September 1, 2017, provides that (1) “Abuse”
includes the following acts or omissions by a person:
(A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child,
13 including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm . . . .
TEX. FAM. CODE ANN. § 261.001(1)(A), (B), (C).
Davis argues that the amended definition of abuse required physical injury that
results in substantial harm to the child or the genuine threat of substantial harm from
physical injury to the child. He contends that an interpretation of the term “abuse” as
applicable to this case was one that required an inference that the Legislature always
intended that, to constitute abuse, an act required more than the threat of a minor physical
injury. As such, an act that “may cause” only a minor and insubstantial injury does not
meet the statutory definition of “abuse.” He asserts that the amended definition clarified,
but did not change, the previous definition of abuse, because the Legislature could not
have intended actions having only the potential to cause minor or insubstantial harm to
be “abuse.” Such an interpretation would “lead to absurd and unjust results” because
under that view, no staff member of a facility such as Burke Center would initiate or
perform a physical restraint on any resident because any physical restraint would
constitute knowing abuse.
We are certainly sympathetic to Davis’s position and argument concerning the
effect the amended definition of “abuse” might have on the present matter. However,
given the state of the law applicable at the time, we cannot adopt his reasoning or agree
with his conclusion. See Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 44 (Tex. 2020)
(citation omitted) (court is “constrained to construe the statute as it existed” at the time of
the incident at issue). The administrative law judge found Davis knew or should have
14 known that physical injury to the child was a likely result of initiating a one-on-one physical
confrontation with the child. The record supports this finding as it shows Davis knew or
should have known from his training that physical restraints can pose a risk of injury and
death and thus, such restraints are to be used as a last resort in emergency
circumstances only. The video and supporting testimony show Davis did not attempt to
de-escalate the situation before utilizing physical restraint on the child. An employee of
the Department testified she believed the child could have suffered emotional or physical
injuries from the restraint Davis used. The facts in this case therefore fit within the
definition of “abuse” applicable at the time the incident occurred. The facts that the child
escaped injury and indeed, inflicted injury on staff members, and that the definition was
amended a short time later is irrelevant. The record contains substantial evidence that
Davis committed abuse of the child as it was defined at the time the restraint occurred.
We also find that substantial evidence exists in the record to support the
administrative law judge’s finding that there was no emergency such that Davis’s restraint
of the child was even necessary. An emergency situation is one in which de-escalatory
or redirection techniques have not effectively reduced the potential for injury such that
intervention is immediately necessary to prevent imminent physical harm to another
because of the child’s overt acts, including attempting to harm others. Those acts may
include aggressive acts by the child, such as serious incidents of shoving or grabbing
others over their objection, but do not include verbal threats or attacks. As noted here,
the record contains evidence indicating the child was in an agitated state, threw a small
stick in Davis’s direction, allegedly appeared to be looking for other objects to throw, and
responded to Davis with profanity. However, the child did not engage in any other
15 aggressive conduct and at the time of the intervention, was standing with his arms at his
sides. An employee of the Department testified she did not believe the child was a danger
to others at the time the restraint was utilized. Based on the statutory definitions
applicable at the time, none of the child’s acts constituted aggressive acts to such a
degree that immediate intervention was necessary to prevent harm to others and nothing
suggests an emergency existed at that time. Accordingly, we find substantial evidence
supported the administrative law judge’s findings of fact and conclusions of law. We
sustain THHSC’s issue.
CONCLUSION
Having sustained THHSC’s issue, we reverse the district court’s Order Granting
Plaintiff’s Petition for Judicial Review and render judgment reinstating the administrative
law judge’s Decision and Order.
Patrick A. Pirtle Justice