Texas Health and Human Services Commission v. Amy Bazan A/K/A Amy Fairbank

ACCEPTED
15-25-00130-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
12/19/2025 8:13 AM
Cause No. 15-25-00130-CV CHRISTOPHER A. PRINE
_______________________________________________________ CLERK
FILED IN
15th COURT OF APPEALS
FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS
_______________________________________________________
12/19/2025 8:13:16 AM
CHRISTOPHER A. PRINE
Clerk
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellant,

v.

AMY BAZAN a/k/a AMY FAIRBANK,
Appellee.
____________________________________________________

On Appeal from the 353rd Judicial District Court of Travis County, Texas
No. D-1-GN-22-000773

REPLY BRIEF OF APPELLANT, THE TEXAS
HEALTH AND HUMAN SERVICES COMMISSION
____________________________________________________

KEN PAXTON ERNEST C. GARCIA
Attorney General of Texas Chief, Administrative Law Division

BRENT WEBSTER TED A. ROSS
First Assistant Attorney General Assistant Attorney General
State Bar No. 24008890
RALPH MOLINA Office of the Attorney General
Deputy First Assistant Attorney P.O. Box 12548 (MC 018)
General Austin, Texas 78711-2548
(512) 475-4191
AUSTIN KINGHORN ted.ross@oag.texas.gov
Deputy Attorney General for Civil
Litigation Attorneys for Appellant, the Texas Health
and Human Services Commission
December 19, 2025
TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................... 3

INTRODUCTION .......................................................................................... 4

REPLY ............................................................................................................. 5

Reply Point 1: Fairbank misunderstands the substantial evidence
standard of review ............................................................................................ 5

Reply Point 2: The Court should reject Fairbank’s repeated
attempts to convince the Court to weigh the record evidence .......................... 6

Reply Point 3: Fairbank misinterprets the plain language in the
Family Code’s definitions of “abuse” and “physical injury” ............................ 9

CONCLUSION AND PRAYER .................................................................... 10

CERTIFICATE OF COMPLIANCE .............................................................. 12

CERTIFICATE OF SERVICE........................................................................ 12

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INDEX OF AUTHORITIES

Cases
Hyde v. Harrison Cty.,
710 S.W.3d 403 (Tex. App. 15th Dist. 2025, no pet.)........................................... 5

Scally v. Tex. State Bd. of Med. Exam’rs,
351 S.W.3d 434 (Tex. App.—Austin 2010, pet. denied) ...................................... 6

Tex. Comm’n on Envtl. Quality v. Maverick Cty.,
642 S.W.3d 537 (Tex. 2022), reh’g denied (Apr. 22, 2022)................................ 5, 6

Statutes
Tex. Fam. Code
§ 261.001(1)(C) ................................................................................................... 4

Rules
40 Tex. Admin. Code
§ 707.455(b)(2) .............................................................................................. 4, 10

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INTRODUCTION

Fairbank’s brief is nothing more than another attempt to ask the court to re-

weigh the substantial record evidence in violation of the substantial evidence

standard of review. And she was unfortunately successful in the trial court. However,

there is more than substantial evidence in the record that Fairbank abused her child,

thus warranting her placement on the Child Abuse and Neglect Central Registry.

In reversing the SOAH Decision and Order (SOAH Order), the district court

ignored the substantial evidence and substituted its judgment for the judgment of the

state agency on the weight of the evidence. This is a flagrant violation of the standard

of review, where questions of weight are committed to the agency’s discretion. The

district court improperly usurped the agency’s authority as the trier of fact. This

Court should reverse the district court’s judgment and affirm the SOAH Order

because the evidence in the record supports the finding of abuse.

Fairbank is also wrong in her interpretation of the unambiguous language in

section 261.001(1)(C) of the Family Code defining “abuse” and in DFPS Rule

707.455(b)(2) defining “Physical injury that results in substantial harm to the child.”

Further, there are several misstatements in Fairbank’s brief that are not

shown to be supported by the record. This Court should reject Fairbank’s attempt

4
to distract the Court from the real issue in this case. This case is about parental abuse

of a child, not a contentious divorce.

REPLY

Reply Point 1: Fairbank misunderstands the substantial evidence standard
of review.

The discussion in Fairbank’s brief about the applicable standard of review is,

at best, incomplete. Br at 9-10.

This Court recently addressed the well-settled substantial evidence standard

of review in Hyde v. Harrison Cty., 710 S.W.3d 403 (Tex. App. 15th Dist. 2025, no

pet.). The Court notes that, in applying the standard, (i) a court may not substitute

its judgment for the judgment of the state agency on the weight of the evidence; (ii)

in assessing whether the agency’s decision is reasonably supported by substantial

evidence, the issue is not whether the agency’s decision is correct, but only whether

the record demonstrates some reasonable basis for the decision; and (iii) a court must

uphold the agency’s ultimate decision if the evidence is such that reasonable minds

could have reached the conclusion that the agency must have reached in order to

justify its action. Hyde, 710 S.W.3d at 407-408. Also, the party contesting a state

agency final decision has the burden to refute the presumption that the agency’s

findings, inferences, conclusions, and decisions are supported by substantial

evidence. Tex. Comm’n on Envtl. Quality v. Maverick Cty., 642 S.W.3d 537, 547 (Tex.
5
2022), reh’g denied (Apr. 22, 2022). “The burden is a heavy one—even a showing

that the evidence preponderates against the agency’s decision will not be enough to

overcome it, if there is some reasonable basis in the record for the action taken by the

agency.” Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434, 441 (Tex. App.—

Austin 2010, pet. denied).

Reply Point 2: The Court should reject Fairbank’s repeated attempts to
convince the Court to weigh the record evidence.

Fairbank continues to ignore the substantial evidence in this case and attempts

to distract the court from the simple issue of whether Appellee abused her child

(Child 1). In making that determination “[a]n administrative law judge as factfinder,

determines the credibility of witnesses and the weight of their testimony.” Scally,

351 S.W.3d at 441. Further, a court may not set aside an agency decision merely

because testimony was conflicting or disputed as long as the evidence can support

either affirmative or negative findings on a specific issue. Id.

First, contrary to Appellant’s statement on p. 6 of her brief, HHSC staff did

in fact offer pictures relating to physical injuries. AR at 000235 (color photography

of broken flyswatter). The picture showed a substantial cut in the flyswatter which

indicates that it was capable of causing bodily harm.

Second, the alleged behavior on the part of the father has absolutely nothing

to do with whether Child 1 was abused. The same is true regarding the allegation that
6
the father did not call law enforcement, that Child 1 did not mention being spanked

or disciplined by a flyswatter, or that there was no mention of bleeding or bruising

from the use of the flyswatter. It is not uncommon for abused children not to report

or reach out due to fear of punishment from the parent(s). Also, both children made

outcry statements to the amicus attorney, Cynthia Kent. AR 65, 66, 124. Child 1 also

told Ms. Kent that Fairbank recently spanked her, and it made blood marks. AR 79,

125. The ALJ determined that “[t]he Children provided consistent statements that

Petitioner had spanked Child 1 with a broken fly swatter which caused Child 1’s leg

to bleed.” AR 125. The ALJ’s fact-findings are conclusive. Furthermore, the

children’s father confirmed that Fairbank had hit Child 1 on the leg causing her to

bleed in four spots on her leg. AR 81, 124. A certified forensic interviewer confirmed

the fact that Fairbank spanked Child 1 with a flyswatter, and it left a big purple mark.

AR 61, 124-125. And Fairbank herself admitted that she struck Child 1 with a broken

flyswatter and that it cut Child 1, and that she hit Child 1 this way because Child 1

had flooded the bathroom floor. AR 61, 124, 125. The flyswatter left a mark on the

child’s leg and caused a partial skin break. AR 10, 61, 125. The amicus attorney also

concluded that Fairbank is struggling with physically abusing her children. AR 86,

124.

7
Fairbank speculates that Child 1 was somehow “coached.” Br. at 12-13. To

the contrary, there is not one shred of evidence to even remotely suggest that Child

1 was “coached” by anyone.

Fairbank also refers to her own testimony in her brief. Br. at 15. That’s her

self-serving side of the story. The ALJ was well within her discretion to determine

that Fairbank’s testimony was either not credible or did not rise to the level of

refuting the substantial evidence showing that she abused her daughter.

Without any authority, Fairbank further claims that the factfinder cannot rely

on so-called inconsistencies in statements given by the children. Br. at 13-14. The

statements she refers to, however, are not inconsistent. Fairbank claims that Child 2

told the interviewer that Fairbank spanked her sister with a flyswatter, but that Child

1 made no mention of being spanked with a flyswatter when she was interviewed by

the investigator. Br. at 13. These statements are hardly inconsistent. Just because

Child 1 made no mention of being hit with a flyswatter and her sister did mention it

does not mean that the testimony was conflicting. The same is true regarding the

children’s interviews with the amicus attorney. Br. at 13-14. Inconsistent statements

would be if Child 1 had affirmatively stated that she was not spanked with a flyswatter

and, on the other hand, Child 2 saying she was. That’s not the case here. Fairbank

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can’t dispute the fact that she spanked Child 1 with a flyswatter; in fact, she admits

that she hit and cut Child 1. AR 61, 124, 125.

Fairbank’s legally unsupported argument that the ALJ should have rejected

the children’s testimony just because one child didn’t mention something in one

interview and the other child did in another should be rejected. Under the substantial

evidence rule, courts focus on whether some credible evidence supports the ALJ’s

findings.

Reply Point 3: Fairbank misinterprets the plain language in the Family
Code’s definitions of “abuse” and “physical injury.”

Fairbank contends that her actions did not constitute abuse and that hitting

her child with a broken flyswatter did not result in “physical injury to the child”

under the Family Code and the DSHS rule. Br. at 11-12. She further claims that any

harm or injury to Child 1 was “transient.” Id. To the contrary, the ALJ as the

factfinder was well within her discretion to conclude that:

A bruise is more than a temporary minor mark. Petitioner testified she
believed spanking Child 1 with a broken fly swatter was reasonable
discipline. But the law provides that causing injury to a child is not
reasonable discipline and causing a child to bleed is an injury. In this
case the evidence shows the discipline was not reasonable.

In short, causing a child to bleed and bruise falls squarely into the list of
examples of forms of abuse pursuant to the Texas Administrative Code.
Child 1 suffered a physical injury by the actions of the Petitioner.
Therefore, the preponderance of the credible evidence supports a
finding that Petitioner abused Child 1.
9
AR 129.

The ALJ’s decision is based on the plain and unambiguous language of the

DSHS rule defining “physical injury that results in substantial harm to a child”:

(A) Any of the following, if caused by an action of the alleged
perpetrator directed toward the alleged victim: substantial or frequent
skin bruising; substantial cuts, welts, lacerations, or pinch marks;
skull or other bone fractures; damage to cartilage; brain damage;
subdural hematoma; soft tissue swelling; impairment of or injury to any
bodily organ or function; any other internal injury otherwise not
specified; permanent or temporary disfigurement; burns; scalds;
wounds . . . .

40 Tex. Admin. Code § 707.455(b)(2) (emphasis added).

The ALJ, as the factfinder, was also correct in lending little weight to

Fairbank’s contentions that the injuries to Child 1 were merely “transient.”

CONCLUSION AND PRAYER

This Court should reject Fairbank’s attempts to turn the substantial evidence

standard of review on its head, to ignore the discretion of the ALJ as the factfinder,

and to disregard the plain language of the applicable statute and rule.

For the reasons stated herein and in HHSC’s opening brief, HHSC

respectfully requests this Court to reverse the district court’s judgment and affirm

the agency’s Decision and Order in all respects.

Dated: December 19, 2025

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Respectfully submitted,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney General

AUSTIN KINGHORN
Deputy Attorney General for Civil Litigation

ERNEST C. GARCIA
Chief, Administrative Law Division

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General
State Bar No. 24008890
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P. O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4191
Email: ted.ross@oag.texas.gov

Attorneys for Appellant, Texas Health and Human
Services Commission

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CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2)(B), this brief

contains 1,660 words, excluding the portions of the brief exempted by Rule 9.4(i)(1).

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and forgoing
document has been served on the 19th day of December 2025 to the following
counsel:

Prema Autry via e-Service
Texas State Bar No. 24082357
223 S. Bonner Ave.
Tyler, Texas 75702
T: (903) 705-7211
F: (903) 705-7221
pautry@laddtxlaw.com
Attorney for Appellee,
Amy Bazan a/k/a Amy Fairbank

/s/ Ted A. Ross
Ted A. Ross
Assistant Attorney General

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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Jeff Lutz on behalf of Ted Ross
Bar No. 24008890
jeff.lutz@oag.texas.gov
Envelope ID: 109291769
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: 2025 1219 HHSC Reply Brief
Status as of 12/19/2025 8:19 AM CST

Associated Case Party: Texas Health and Human Services Commission

Name BarNumber Email TimestampSubmitted Status

Jeff Lutz jeff.lutz@oag.texas.gov 12/19/2025 8:13:16 AM SENT

Ted Ross ted.ross@oag.texas.gov 12/19/2025 8:13:16 AM SENT

Associated Case Party: Amy Bazan

Name BarNumber Email TimestampSubmitted Status

Cheryl Kuester ckuester@laddtxlaw.com 12/19/2025 8:13:16 AM SENT

Norman Ladd nladd@laddtxlaw.com 12/19/2025 8:13:16 AM SENT

Prema Autry pautry@laddtxlaw.com 12/19/2025 8:13:16 AM SENT