08-0453 Geffrey Klein Baylor College of Medicine v. Cynthia Hernandez








IN THE SUPREME COURT OF TEXAS
 
════════════
No. 08-0453
════════════
 
Geffrey Klein, M.D. and Baylor College of 
Medicine, Petitioners,
 
v.
 
Cynthia Hernandez, as the Parent and Next 
Friend of N.H., a Minor, Respondent
 
════════════════════════════════════════════════════
On Petition for Review from 
the
Court of Appeals for the First District of 
Texas
════════════════════════════════════════════════════
 
 
Argued October 7, 
2009
 
 
            
Justice Medina delivered 
the opinion of the Court.
 
            
Justice Willett filed a 
concurring opinion.
 
            
By statute, a state employee may appeal an interlocutory order denying a 
motion for summary judgment based on an assertion of immunity. Tex. Civ. Prac. & Rem. 
Code § 51.014(5). The 
issue here is whether a resident physician, working at a public hospital under 
an agreement with his private medical school, may take an interlocutory appeal 
under this statute. The court of appeals decided he could not, dismissing the 
interlocutory appeal because the resident physician was not a state employee. 
260 S.W.3d 1, 10-11. We conclude, however, that by 
statute a resident physician at a private medical school is to be treated like a 
state employee for purposes of section 5l.014(5) when 
the underlying litigation arises from a residency program coordinated through a 
supported medical school at a public hospital. Accordingly, we reverse the court 
of appeals’ judgment, reinstate the physician’s interlocutory appeal, and remand 
the case to the court of appeals for its review.
I
            
Cynthia Hernandez sued Dr. Geffrey Klein and Baylor College of Medicine, 
alleging malpractice during the delivery of her daughter at Ben Taub General 
Hospital. Ben Taub is a part of the Harris County Hospital District, a political 
subdivision of the State. See Tex. Health & Safety Code § 
281.002(a); see also Tex. Const. art.
IX, § 4. Baylor is a private, non-profit medical 
school, but is also a “supported medical school,” which means that it has 
contracts with the Texas Higher Education Coordinating Board and receives state 
funding specifically allocated for training physicians who provide medical care 
at public hospitals such as Ben Taub. Tex. Health & Safety 
Code § 312.002(6). Dr. 
Klein was a Baylor obstetrics and gynecology resident at Ben Taub under this arrangement when he delivered Hernandez’s 
daughter in 1994.
            
Responding to Hernandez’s claims, Baylor and Klein jointly filed a motion 
to dismiss for lack of jurisdiction and a motion for summary judgment, asserting 
they were entitled to immunity under sections 312.006 and 312.007 of the Texas 
Health and Safety Code. Hernandez responded to the motions, but also non-suited 
her claim against Baylor. Despite the non-suit, the trial court denied the 
motions as to both defendants, and Baylor joined Klein in appealing the trial 
court’s interlocutory order.
            
The court of appeals dismissed both appeals. 260 S.W.3d 
1. The court held it lacked jurisdiction to consider the interlocutory 
appeals under either section 51.014(a)(5) or (a)(8) of 
the Civil Practice and Remedies Code. Id. at 7-11. Section 51.014(a)(5) allows an interlocutory appeal from the denial of “a 
motion for summary judgment that is based on an assertion of immunity by an 
individual who is an officer or employee of the state,” while section 
51.014(a)(8) authorizes an interlocutory appeal from the grant or denial of “a 
plea to the jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem. Code § 
51.014(a)(5), (8). The court reasoned that it lacked 
jurisdiction under (a)(5) because Klein was not an 
“officer or employee of the state,” and under (a)(8) because Baylor was not a 
“governmental unit.” 260 S.W.3d at 7-11. The court also 
concluded that Chapter 312 of the Texas Health and Safety Code did not confer 
immunity upon either Baylor or Klein. Id. at 8, 
10.
II
            
Because this is an interlocutory appeal, we first consider the matter of 
our own jurisdiction. Interlocutory appeals are generally final in the courts of 
appeals, Tex. Gov’t Code § 
22.225(b)(3), although exceptions to this general rule 
exist. See Tex. Gov’t Code 
§ 22.001(a)(1)-(2), (c), (d); see also Univ. of Tex. Sw. Med. Ctr. of 
Dallas v. Margulis, 11 S.W.3d 186, 187 (Tex. 2000) 
(per curiam). One exception is when a court of 
appeals’ decision conflicts with another court of appeals’ prior decision. Tex. Gov’t Code § 22.001(a)(2). That exception applies here as the court acknowledged 
that its decision regarding Klein conflicted with the Fourteenth Court of 
appeals’ decision in Young v. Villegas, 231 S.W.3d 1 (Tex. App.–Houston 
[14th Dist.] 2007, pet. denied). See 260 S.W.3d at 9-11 (disagreeing with 
the conclusion in Young that “a Baylor doctor, who was similarly situated 
to Dr. Klein in the instant case,” was authorized by section 51.014(5) “to 
appeal the denial of his summary judgment motion, in which he asserted immunity 
from individual liability”).
            
We also have jurisdiction over this appeal because the court of appeals 
declined to exercise its interlocutory-appellate jurisdiction. See Lewis v. 
Funderburk, 253 S.W.3d 204, 
206 (Tex. 2008). Even though we may lack jurisdiction over the substance 
of an appeal, we always have jurisdiction to determine whether the court of 
appeals correctly applied its jurisdiction. Badiga v. Lopez, 274 S.W.3d 681, 682 n.1 (Tex. 2009); Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 
1992) (citing Long v. Humble Oil & Ref. Co., 380 S.W.2d 554, 555 
(Tex. 1964) (per curiam)).
III
            
As another preliminary matter, we note the parties’ agreement here that 
Hernandez’s non-suit left no case or controversy as to Baylor. As a general 
rule, a plaintiff may voluntarily dismiss a case — take a non-suit — at any time 
before all of the plaintiff’s evidence other than rebuttal evidence has been 
introduced. Tex. R. Civ. P. 162. 
When this occurs, the non-suit typically moots the case or controversy from the 
moment of its filing or pronouncement in open court. Univ. 
of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 
(Tex. 2006) (per curiam). Exceptions exist, 
such as when the defendant has asserted a claim for affirmative relief, 
see Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 789 
S.W.2d 569, 570 (Tex. 1990), but Baylor submits it had no such claim in the 
trial court.
            
Appellate courts are prohibited from deciding moot controversies because 
the separation-of-powers article prohibits advisory opinions on abstract 
questions of law. Tex. Const. art 
II, § 1; Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004). Assuming the 
non-suit in the trial court ended the case against Baylor, as the parties 
apparently agree, there was no live controversy for the court of appeals to 
decide. But the court of appeals did not dismiss Baylor’s appeal because the 
case was moot, but rather reasoned that Baylor was not entitled to an 
interlocutory appeal because it was not a “governmental unit.” See 260 
S.W.3d at 7-8 (holding that the Health and Safety Code does not make Baylor a 
“governmental unit” entitled to interlocutory appeal). Baylor therefore asks us 
to declare the part of the court of appeals’ opinion pertaining to it void as an 
advisory opinion. Hernandez, on the other hand, argues that the court of 
appeals’ judgment is correct whether based on Baylor’s failure to meet the 
requirements for an interlocutory appeal or due to the absence of a live 
controversy between the parties. Under either circumstance, the correct action 
is to dismiss Baylor’s appeal, which is what the court of appeals has done.
            
When a plaintiff is entitled to a non-suit, the trial court’s dismissal 
order is ministerial. Hooks v. Fourth Court of Appeals, 
808 S.W.2d 56, 59 (Tex. 1991). Before the motions hearing in this case, 
the trial court acknowledged its understanding of this, observing that the 
non-suit had taken Baylor out of the case. Its subsequent order, however, 
purported to deny both Klein’s and Baylor’s motions. This may have been 
inadvertent, but even if the trial court changed its mind about Baylor’s status 
in the case, the determination is no basis for an interlocutory appeal. That is, 
even if we assume the trial court’s action here to be a refusal to comply with 
its ministerial duty to dismiss, no statute provides Baylor the right to an 
interlocutory appeal under these circumstances. Mandamus, we have said, is the 
appropriate remedy when a trial court refuses to comply with its ministerial 
duty to dismiss after a non-suit. Id.
            
While we do not necessarily agree with the court of appeals’ reasons 
for dismissing Baylor’s appeal, we agree with its judgment. The court did not 
err in dismissing Baylor’s appeal and that part of its judgment is accordingly 
affirmed. The viability of Klein’s interlocutory appeal, however, remains in 
dispute because Hernandez has not similarly dismissed her claim against him.
IV
            
Klein asserts a right to an interlocutory appeal under section 
51.014(a)(5) of the Civil Practice and Remedies Code. 
That section provides for the appeal of an order that “denies a motion for 
summary judgment that is based on an assertion of immunity by an individual who 
is an officer or employee of the state or a political subdivision of the state.” 
Tex. Civ. Prac. & Rem. Code § 
51.014(a)(5). The order here unquestionably meets some 
of the statutory requirements: (1) the summary judgment motion is based on an 
individual’s assertion of immunity, and (2) the trial court’s order denies the 
motion. The requirement in dispute concerns the status of the movant; that is, whether this individual, who is a resident 
physician at a supported medical school, is also a state employee for purposes 
of the statute.
            
Klein contends that section 312.007(a) of the Texas Health and Safety 
Code classifies him as a state employee for purposes of his work at Ben Taub. The section, entitled “Individual Liability,” 
provides:
 
A 
medical and dental unit, supported medical or dental school, 
or coordinating entity is a state agency, and a director, trustee, 
officer, intern, resident, fellow, faculty member, or other associated 
health care professional or employee of a medical and dental unit, 
supported medical or dental school, or coordinating entity is 
an employee of a state agency for purposes of Chapter 104, Civil Practice and 
Remedies Code, and for purposes of determining the liability, if any, of the 
person for the person’s acts or omissions while engaged in the coordinated or 
cooperative activities of the unit, school, or entity.
 
Tex. Health & Safety Code § 
312.007(a) (emphasis added). Under this section, a supported medical school, 
like Baylor, “is a state agency,” and a resident of a supported medical school, 
like Dr. Klein, “is an employee of a state agency” for two purposes: (1) obtaining indemnity under Chapter 
104, Civil Practice and Remedies Code, which requires the state to indemnify 
employees in certain circumstances based on acts or omissions in the course and 
scope of employment, and (2) determining liability, if any, for acts or 
omissions while engaged in the coordinated or cooperative activities of a 
supported medical school. Because 
Klein “is an employee of a state agency” for purposes of determining his 
liability in the underlying suit, he submits that he is a state employee for 
purposes of this litigation, which includes the right to an interlocutory appeal 
under section 51.014(a)(5).
            
The court of appeals, however, disagreed. It concluded Klein was not 
entitled to the same rights as an “actual” employee of a state agency. 260 S.W.3d at 9-11. More particularly, the court reasoned 
that the Legislature did not intend to extend sovereign or official immunity, or 
any attendant rights and benefits associated with such immunity, to a resident 
of a supported medical school by merely casting the resident as “an employee of 
a state agency” for purposes of determining liability. Id. at 10-11 (discussing Tex. Health & Safety 
Code § 312.007(a)). The 
court’s analysis of the preceding provision, section 312.006(a), informed its 
understanding of section 312.007(a).
            
Section 312.006(a), entitled “Limitation on Liability,” states that a 
supported medical school engaged in coordinated or cooperative medical 
education, including patient care at a public hospital,
 
is not liable for its acts and omissions in connection with 
those activities except to the extent and up to the maximum amount of liability 
of state government under Section 101.023(a), Civil Practice and Remedies Code, 
for the acts and omissions of a governmental unit of state government under 
Chapter 101, Civil Practice and Remedies Code.
 
Id. § 312.006(a). By its specific reference to section 
101.023(a), the court inferred that the Legislature intended only to limit a 
supported medical school’s liability to the damages caps in the Texas Tort 
Claims Act. 260 S.W.3d at 5-6 (quoting Tex. Civ. Prac. & Rem. Code 
§ 101.023(a) which limits liability under the 
Tort Claims Act). Extending that inference to section 
312.007(a) as well, the court reasoned that the Legislature intended to make 
Baylor a state agency and its residents state employees only to the extent of 
the Tort Claims Act’s damages cap provision, specifically mentioned in 
312.006(a), and Chapter 104's indemnity provisions, specifically mentioned in 
312.007(a). Id. at 6-8.
            
Klein asserts that the court misinterprets these provisions. He submits 
there are three parts to section 312.006(a): (1) a grant of immunity (“is not 
liable”), (2) a limited waiver for certain acts (“except to the extent ... of a 
governmental unit of state government [under the Tort Claims Act]”), and (3) a 
limitation on damages for those acts (“except ... up to the maximum amount of 
liability of state government [under the Tort Claims Act]”). He complains that 
the court of appeals’ analysis only accounts for the last part, ignoring the 
rest. We agree that the court of appeals reads these provisions too 
narrowly.
            
The cardinal rule of statutory construction is to ascertain and give 
effect to the Legislature’s intent. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). When 
determining that intent, the Code Construction Act further guides our analysis, 
listing a number of relevant factors including the object sought to be obtained 
by the legislation, the circumstances under which its 
was enacted, legislative history, and former statutory provisions on the same or 
similar subjects, among others. Tex. 
Gov’t Code § 
311.023.
            
The provisions at issue were first enacted in 1987. That year, the 
Seventieth Legislature amended Title 71 of the Revised Civil Statutes, which 
pertained to public health, by adding article 4494t, which related to 
coordinated medical and dental clinical education. Act of May 28, 1987, 70th 
Leg., R.S., ch. 219, 1987 Tex. Gen. Laws 1508-10. The 
Legislature concluded that the clinical education and patient care at public 
hospitals would benefit from coordination and cooperation rather than 
competition and that cooperation would enhance educational opportunities while 
conserving public resources. Id. at 1508. As 
further background, the senate bill analysis noted that Baylor College of 
Medicine and the University of Texas Health Science Center at Houston had 
preliminarily agreed to staff the Harris County Hospital District’s expanding 
health care facilities and coordinate their education and research efforts, but 
that “residents, interns, faculty and other health care professionals at the 
Baylor College of Medicine, a private institution, [did] not have the same level 
of liability as UTHSCH, a state agency-owned school.” Senate 
Comm. on Health and Human Services, Bill Analysis, S.B. 1062, 70th Leg., R.S. 
(1987). The analysis recited the intent to overcome this impediment by 
equalizing liability, noting that, among other purposes, the bill “establishes 
that liability of units, schools, and entities engaged in cooperative or 
coordinated activities and services is the same as state government liability 
for a governmental unit of state government.” Id.
            
Two years later, the Legislature repealed article 4494t and recodified it as Chapter 312 of the Health and Safety Code. 
Act of June 14, 1989, 71st Leg., R.S., ch. 678, § 1, 
1989 Tex. Gen. Laws 2230, 3165. The codification reorganized the original 
statute and retitled some of its provisions. For 
example, before codification, article 4494t contained a single liability 
section, providing:
 
Sec. 6. LIABILITY. No coordinating 
entity, medical and dental unit, or supported medical or dental school engaged 
in coordinated or cooperative medical or dental clinical education, including 
patient care and the provision or performance of health or dental services or 
research at a public hospital, pursuant to Section 4 of this article, shall be 
liable to any person for its acts and omissions in connection therewith except 
to the extent and up to but not in excess of the maximum amount of the liability 
of the state government as specified in Subsection (a) of Section 101.023 of the 
Texas Tort Claims Act (Chapter 101, Civil Practice and Remedies Code), for the 
acts and omissions of a governmental unit of the state government as provided in 
the Texas Tort Claims Act (Chapter 101, Civil Practice and Remedies Code), 
whether or not such a unit, school, or entity is a “governmental unit” as 
therein defined. A judgment in an action or a settlement of a claim against any 
such unit, school, or entity thus permitted under the provisions of the Texas 
Tort Claims Act shall ban any action involving the same subject matter by the 
claimant against any director, trustee, officer, intern, resident, fellow, 
faculty member, or other associated health care professional or employee of such 
unit, school, or entity whose act or omission gave rise to the claim, as if the 
person were an employee of a governmental unit against which such claim was 
asserted as provided in Section 101.106 of the Texas Tort Claims Act. All 
directors, trustees, officers, interns, residents, fellows, faculty, and other 
associated health care professionals and employees of the medical and dental 
unit, the supported medical or dental school, or the coordinating entity so 
engaged shall be deemed to be employees of a state agency, and said unit, 
school, or entity shall be deemed to be a “state agency” for purposes of Chapter 
104, Civil Practice and Remedies Code, and for purposes of determining the 
liability, if any, of such persons for their acts and omissions while engaged in 
such coordinated or cooperative activities of the units, schools, or 
entities.
 
Act of May 28, 
1987, 70th Leg., R.S., ch. 219, § 6, 1987 Tex. Gen. 
Laws 1509-10, repealed by Act of June 14, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 3165. After 
codification, this liability section became sections 312.006 and 312.007 of the 
Texas Health and Safety Code and was retitled, 
“Limitation on Liability” and “Individual Liability,” respectively. Tex. Health & Safety 
Code §§ 312.006 – .007. 
This reorganization, however, did not effect any 
substantive changes. Act of June 14, 1989, 71st Leg., R.S., 
ch. 678, § 1.001(a), 1989 Tex. Gen. Laws 2230, 
2236.
            
As before, Baylor remained a supported medical school. See Tex. Health & Safety 
Code § 312.002(6) (defining “supported 
medical or dental school”). As such, the Legislature has 
authorized Baylor to coordinate and cooperate with other medical or dental 
schools and contract to provide medical, dental, or other patient services to 
public hospitals, the rationale being that such relationships will “(1) enhance 
the education of students, interns, residents and fellows attending [the 
schools]; (2) enhance patient care; and (3) avoid any waste of public money.” 
Id. § 312.001(b); see also id. §§ 312.003 – 
.004; § 312.002(5) (defining “public hospital”). Under this 
authorization, Baylor has contracted with the Texas Higher Education 
Coordinating Board and receives state funding for training physicians who 
provide medical care at public hospitals.
            
Ben Taub is one such public hospital, being a 
part of the Harris County Hospital District. This District, like all such 
countywide districts, is a political subdivision of the State authorized by the 
Legislature to “provide for the establishment of a hospital or hospital system 
to furnish medical aid and hospital care to indigent and needy persons residing 
in the district.” Id. § 281.002(a). These 
districts and their hospitals are “governmental units” for purposes of the Tort 
Claims Act. Tex. Civ. Prac. & Rem. Code § 
101.001(3).
            
Here, Baylor and the University of Texas Medical School at Houston, 
through a coordinating entity called Affiliated Medical Services (“AMS”), have 
agreed to provide medical care and services, and medical education, training and 
research activities at Ben Taub and other public 
hospital facilities and clinics owned and operated by the Harris County Hospital 
District. The Commissioner of Health has approved this agreement between Baylor 
and UT regarding AMS, and the State Board of Medical Examiners has certified AMS 
as a non-profit corporation organized to benefit the public. Under the 
agreement, Baylor provides all obstetrical and gynecological medical care 
services at Ben Taub. That was the arrangement in 
1994, when Hernandez’s daughter was delivered, and it remains the arrangement 
today.
            
Had Klein been directly employed by Ben Taub, 
he would be a governmental employee under the Tort Claims Act. Similarly, had 
the University of Texas Medical Branch or a similar public university provided 
Klein to the hospital, he would be a governmental employee under the Act. 
Instead, Baylor provided Klein’s services to Ben Taub. 
This distinction, however, makes no difference under Chapter 312, which 
classifies Baylor as a “governmental unit of state government” and a “state 
agency” for certain purposes, including its services at 
Ben Taub. Tex. 
Health & Safety Code §§ 
312.006(a) – .007(a).
            
In addition to making Baylor a “state agency” for certain purposes, 
including its services at Ben Taub, Chapter 312 also 
makes Klein a state employee for these same purposes. Tex. Health & Safety 
Code § 312.007(a). The 
chapter provides that a supported medical school like Baylor “is not liable for 
its acts or omissions” in connection with the provision or performance of these 
services:
 
except to the extent and up to the maximum amount of 
liability of state government under Section 101.023(a), Civil Practice and 
Remedies Code, for the acts and omissions of a governmental unit of state 
government under Chapter 101, Civil Practice and Remedies Code.
 
Id. § 312.006(a).
            
Contrary to the court of appeals’ reading, we construe “the extent” and 
“the maximum amount” of liability as referencing separate subjects. Thus, a 
supported medical school is not liable, except (1) to the extent of liability of 
state government for the acts and omissions of a governmental unit of 
state government under the Tort Claims Act, and (2) up to the maximum amount of 
liability of state government under Section 101.023(a) of the Act. Section 
312.006(b) confirms this reading, stating that “[t]he 
limitation on liability provided by this section applies regardless of whether” 
the supported medical school “is a ‘governmental unit’ as defined by section 
101.001, Civil Practice and Remedies Code.” Id. § 
312.006(b). Thus, a supported medical school does not need to be a 
governmental unit — like UT Medical Branch — to be entitled to immunity; the 
Health and Safety Code bestows such status by its own terms.
            
We conclude that the Legislature intended through Chapter 312 to treat 
Baylor like other governmental entities providing services at public hospitals, 
extending the same protection and benefits to Baylor and its residents who work 
at these hospitals. In the words of the chapter, a supported medical school “is 
a state agency” and a resident of a supported medical school “is an employee of 
a state agency . . . for purposes of determining liability, if any.” Tex. Health & Safety 
Code § 312.007(a). As an 
employee of a state agency, complaining about the denial of his motion for 
summary judgment based on an assertion of immunity, Klein was entitled to bring 
this interlocutory appeal like any other state employee, and the court of 
appeals erred in holding otherwise.
* 
* *
            
The judgment of the court of appeals is reversed, in part, and Klein’s 
interlocutory appeal is remanded to the court for consideration of the 
merits.
                                    

 _____________________________
 David M. Medina
 Justice
 
 
OPINION DELIVERED: May 7, 2010