joined by PHILLIPS, Chief Justice, and GONZALEZ and CORNYN, Justices, dissenting.
A state agency is liable for attorney fees under Tex.Civ.Prac. & Rem.Code § 105.0021 only if it asserts a cause of action that the court finds to be frivolous, unreasonable or without foundation. The determinative issue is not how the agency acted, but how devoid of merit its action — its lawsuit— was. The district court did not make this distinction in this case, which was brought by the Department of Human Services for custody of two children whom it took into its possession based upon evidence that they were being sexually abused. The district court awarded $53,426.15 attorney fees against the Department of Human Services based solely upon a finding that “the State did act [emphasis added] frivolously, unreasonably, and without foundation” by retaining possession of the children longer than the court believed it should have. The district court never determined whether the Department’s cause of action was frivolous, unreasonable or without foundation, and for this reason the court of appeals reversed the award of attorney fees. 812 S.W.2d 620.
This Court agrees with the appeals court that the Department’s liability for attorney fees depends upon a determination that its lawsuit was frivolous, unreasonable or without foundation. In making this determination, however, the Court seems most swayed by its own feeling that the Department kept the children in this case too long.
The facts show that the Department did not keep the children any longer than it was allowed to keep them either by statute or by the district court, and that it returned them to their mother as soon as the district court ordered it to do so. But the facts regarding the Department’s conduct of the lawsuit are irrelevant to a determination of whether the lawsuit was frivolous, unreasonable or without foundation. The Court concludes that it was but does not say why. The effect of the Court’s decision is thus to punish the Department for erring on the side of caution in trying to protect children from sexual abuse and for retaining possession of the children even when the district court allowed it to do so. I would hold that the Department is not liable for attorney fees. I therefore dissent.
Section 17.03(a)(6) of the Texas Family Code authorizes the Department of Human Services to take possession of a child without a court order “upon information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse and that there is no time to obtain a temporary restraining order or attachment....” Acting on this authority, the Dallas County Child Welfare Unit of the Department took possession of two children — a four-year-old girl with cerebral palsy and her three-year-old brother— based upon evidence that their mother and her boyfriend had sexually abused them.
The evidence on which the Department relied is thoroughly detailed in the court of appeals’ opinion, 812 S.W.2d at 621-22, and I merely summarize it here. The girl’s teachers noticed while they were cleaning her that her genital area was red and swollen, and they became concerned that she might have been abused. A caseworker who had worked for the Department only *632three months interviewed the girl and her brother separately. Both children indicated, in their own words, that their mother’s boyfriend had fondled their genitals, and that the mother had been present at least once when it happened. The caseworker also interviewed the mother and her boyfriend, both of whom denied molesting the children and speculated that a babysitter might be to blame. A pediatrician experienced in treating child abuse victims examined the girl and found redness and a very minor abrasion in her genital area (so minor, in fact, that he testified he might even have caused it himself during the examination). The pediatrician could not confirm sexual abuse but did not rule it out.
In accordance with Tex.Fam.Code § 17.-03(b),2 the Department filed this action for temporary managing conservatorship of the children on Friday, May 6, 1988, the day after it took possession of them, and appeared before the district court through counsel, an assistant district attorney, to request an emergency order granting the Department immediate temporary custody. As permitted by Tex.Fam.Code § 17.03(c),3 the hearing was ex parte, and the only evidence presented was the caseworker’s
affidavit. That affidavit did not convince the district court that the children had been sexually abused or were in immediate danger, the statutory prerequisites for emergency ex parte relief. Tex.Fam.Code § 17.-02(a).4 Accordingly, the district court refused the Department’s request. The court did not order the children returned to their mother, however, as it should have done under Tex.Fam.Code § 17.03(d).5 Rather, the court referred the case to the court master for further hearing the following Monday, May 9, and the Department kept the children over the weekend.
We have no record of the May 6 proceeding, but we do have the district judge’s testimony explaining what transpired. As for why she referred the case to the master, and whether the Department should have returned the children on Friday, the judge explained:
I don’t recall independently the interaction I had with the [assistant district attorney representing the Department at the May 6 hearing], but I can say that I know what the court’s practice is when the DA presents a TRO that I believe to have insufficient evidence, and that is typically to recommend the DA gather the additional evidence they believe they *633have, and set it for an emergency hearing in front of the master/referee, ... and I assume that’s what I did in this case.
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I will give [the DA] the opportunity to have a hearing in front of the master in which they can present any additional evidence that they choose to present to establish the basis for their request for a TRO.
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As I said, I don’t have any independent recollection [of the May 6 hearing]. I know that on a regular basis I will say, get this [affidavit in support of the request for emergency relief] supplemented, or return the child. So I very well may have said that to the DA.
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Well, I sent [the case] over [to the master for a hearing on Monday, May 9], I don’t know whether [the DA is] going to be able to gain additional evidence or not. I don’t want them to go present the same thing to the master.
What I say is if they have got a better case, and they want to have the master hear it, set it; if not, return that child.
On Monday, May 9, the Department appeared through counsel before the district court master, and the mother of the children appeared pro se. The mother requested that the hearing be postponed until she could obtain legal counsel, and the master granted her request. The mother and a representative of the Department (not the caseworker) were sworn as witnesses, and the hearing was recessed. The master then transmitted her recommendation to the district court on a preprinted form which contained the following handwritten notation under “Other Orders”: “Ex parte order approved. Emergency orders continued.” The “ex parte order” the master referred to appears to have been the one the district court had refused to sign. Yet the notation suggests that the master was under the misimpression that emergency orders had already issued, since she recommended that they be continued. The assistant district attorney representing the Department did not advise the master that the district court had denied emergency ex parte relief the preceding Friday. How the master could have been misled, given the fact that the court had referred the case to her, or whether she was simply mistaken when she made the notation in her recommendation, is not clear.
In any event, the district judge, who could not have been mistaken about her own prior action, approved the master’s recommendation and signed the emergency custody order that she had refused to sign on May 6, changing the date from the 6th to the 9th. That order was incorrect in two respects, as the district judge later testified. First, it was titled, “Ex Parte Order”, although it did not issue until after both the Department and the mother had appeared before the master. Second, it recited that the court had found there to be “a continuing danger to the physical health and/or safety of the subject children ... if returned to the parent”, although neither the court nor the master had made such a finding. Nevertheless, the order gave temporary custody of the children to the Department, and there is no question that the district court meant to do so. In her later testimony, the district judge stated:
It’s my testimony that on May 9th I intended to enter an order that provided the Department the right to temporary custody of those children. That was not based on an ex parte hearing; it was based on a hearing held in front of Judge Lewis on May 9th wherein it was decided by the parties that the State would continue to have custody of those children until the full adversary hearing could be made.
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Well, what I’m saying is that order that was labeled “ex parte order” was, in fact, not an ex parte order, so there was no ex parte order ever entered in this case.
If I can look at that order, this is the same order that was presented to me on May 5th, 1988, that was not entered, and it was presented after the hearing on *634May 9th. And I intended to give the Department of Human Services the right to temporary custody and possession of the two children subject of the suit.
The finding that was made in Paragraph 1 that says, “The Court finds there is a continuing danger to physical safety of the subject children named below if returned to the parent, conservator, custodian or guardian presently entitled to possession,” that finding was never made, and that was not explained to the Department of Human Services. It was explained to their counsel.
As allowed by the May 9 order, the Department retained possession of the children. On May 18, after a second postponement at the mother’s request, the master heard the merits of the case and issued her recommendation that the Department’s request for temporary custody be denied, and that the children be returned to their mother. The next day the Department noticed its appeal of the master’s recommendation to the district court and moved to stay its effect until the appeal could be heard. That same day the district court denied the Department’s motion and ordered that the children be returned “instanter”. The Department complied, and returned the children that day.
We have held that whether an action is “groundless and brought in bad faith, or brought for the purpose of harassment”, Tex.Bus. & Com.Code § 17.50(c), is a question of law. Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 637 & n. 3 (Tex.1989). Likewise, whether an action is frivolous, unreasonable or without foundation is also a question of law which an appellate court can determine without findings by the trial court. Thus, the court of appeals in this case erred in setting aside the award of attorney fees simply because the trial court’s findings concerning the Department’s conduct were not the findings required by section 105.002. The court of appeals should have made its own determination whether the Department’s action was frivolous, unreasonable or without foundation. This Court also errs, in my view, in arguing that if the district court’s actual findings are insufficient, then we should give effect to its intended findings. I am not aware of any authority an appellate court has to disregard a trial court’s actual findings and give effect instead to findings the appellate court believes must have been intended. This strange, new concept is unnecessary to the decision in this case. The relevant facts are not in dispute. The Department’s evidence was what it was. Whether the Department’s lawsuit was frivolous, unreasonable, or without foundation is a question of law for the Court to decide irrespective of the district court’s findings.
There is no gainsaying that the Department had a weak case to take possession of these children. After all, it lost on the merits. But was the action frivolous, or unreasonable, or without foundation? Simply taking the ordinary meaning of these words, I think it clearly was not. When a little girl says she has been molested, and her genitals are red and swollen, and her teachers are concerned, and an experienced pediatrician cannot rule out sexual abuse, even if the pediatrician cannot confirm abuse and the investigating caseworker is inexperienced, a lawsuit filed by the Department to protect the child from harm that is potentially very serious and altogether too common in this day and time is not frivolous, or unreasonable, or without foundation.
The Department’s suit had enough merit for it to obtain an order giving it temporary custody of the children. The Department’s suit did not suddenly become frivolous when it ultimately did not prevail. Were this the rule, the Department would be liable for attorney fees whenever it lost a lawsuit. I suppose the same rule would apply in other contexts, such as under the Deceptive Trade Practices Act, Tex.Bus. & Com.Code § 17.50(c), and for the imposition of sanctions under Tex.R.Civ.P. 13. This is not a workable rule. The Department’s suit had no more or less merit to it on May 18, when the master recommended that relief be denied, than it did on May 9 when the district court signed an emergency order. The case was not open and shut, and the Department lost. That fact alone *635should not subject it to liability for attorney fees.
The Court does not explain why it reaches a contrary conclusion, other than to say that “the Department’s cause of action became frivolous, unreasonable, or without foundation from May 6, 1988 when Judge Stayman found insufficient evidence of abuse and denied the ex parte order requesting temporary custody.” Ante, at 630. Yet Judge Stayman signed the very same order three days later giving the Department temporary custody of the children. If the denial of the relief the Department requested established that its action was frivolous, unreasonable and without foundation, the converse of this proposition — that the granting of relief established that the action was meritorious — would certainly seem to be true as well. I do not agree, however, that the district court’s denial of ex parte emergency relief proves that the Department’s action was so merit-less that it should be liable for attorney fees. If that is to be the rule, the Court has greatly increased state agencies’ liability for attorney fees.
What appears to be most persuasive to the Court is not that the Department was denied relief on May 6, but that it retained the children after that date. I need not attempt to defend the Department’s conduct. Again, the issue is not how the Department acted, but whether it had a non-frivolous cause of action. The Court states that the Department should have returned the children to their mother on May 6, after the district court refused to give it emergency custody. Perhaps it should, but it was not legally required to do so. The governing statute, Tex.Fam.Code § 17.-03(d), requires the court to order return of the children if it fails to conclude that they are in immediate peril. The district court intentionally did not issue such an order so that the Department could present its evidence to the master. Following that hearing, the district court signed an order giving the Department temporary custody of the children. Assuming that the Department had no more evidence on May 9 than it presented on May 6, even though one new witness was ready to testify in its behalf, and assuming further that it misled the master by failing to disclose the court’s refusal to grant emergency relief, even though it was the court that referred the case to the master for hearing, the district judge, testifying after the events, clearly stated that she was not mistaken: she intended to give the Department custody of the children. If the Department’s conduct were in issue, and it is not, I do not see how it can be faulted for doing what the district court intended it to do. The Department returned the children to their mother as soon as the district court ordered it to do so.
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For the reasons I have expressed, I would hold that the Department’s action was not frivolous, unreasonable or without foundation, and would therefore affirm the judgment of the court of appeals in favor of the Department.
. "When a child is taken into possession under Subdivision ... (6) of Subsection (a) of this section, the person taking the child into possession shall, without unnecessary delay, cause to be filed a suit affecting the parent-child relationship and request the court to appoint a guardian ad litem for the child and to cause a hearing to be held by no later than the first working day after the child is taken into possession."
. “The court in which the suit affecting the parent-child relationship has been filed under Subsection (b) of this section shall hold a hearing on or before the first working day after the child is taken into possession and shall make such orders as are necessary to protect the physical health and safety of the child. If the court is unavailable for a hearing on the first working day, then, and only in that event, the hearing shall be held no later than the first working day after the court becomes available, provided that the hearing is held no later than the third working day after the child is taken into possession. The hearing may be ex parte and proof may be by sworn petition or affidavit if a full adversary hearing is not practicable. If the hearing established by this subsection is not held within the time limits required, the child shall be returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child."
. "Before any temporary restraining order or attachment of the child is issued without a full adversary hearing in a suit affecting the parent-child relationship brought by a governmental entity, the court must be satisfied from a sworn petition or affidavit that: (1) there is an immediate danger to the physical health or safety of the child or the child has been a victim of sexual abuse; and (2) there is no time, consistent with the physical health or safety of the child, for an adversary hearing.”
. "Unless the court at the hearing required under Subsection (c) of this section is satisfied that there is a continuing danger to the physical health or safety of the child if the child is returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child, the court shall order the return of the child to the person entitled to possession.”