                                                                                        ACCEPTED
                                                                                    05-15-00246-CV
                                                                         FIFTH COURT OF APPEALS
                                                                                    DALLAS, TEXAS
                                                                               4/30/2015 4:26:18 PM
                                                                                         LISA MATZ
                                                                                             CLERK


                          NO. 05-15-00246-CV
                                                                 FILED IN
                                                          5th COURT OF APPEALS
                   In the Fifth Court of Appeals              DALLAS, TEXAS
                                                          4/30/2015 4:26:18 PM
                          Dallas, Texas                         LISA MATZ
                                                                  Clerk




           The University of Texas Southwestern Medical Center,
                                             Appellant,
                                    vs.

 Verba Klingsick, Diana Klingsick and Jana Carrasco, Individually and on
          Behalf of the Estate of William R. Klingsick, Deceased,
                                            Appellees.


     On Appeal from the 95TH Judicial District of Dallas County, Texas
                  Trial Court Cause No. DC-12-07946
             The Honorable Ken Molberg, Judge Presiding


                        APPELLANT’S BRIEF

KEN PAXTON                           JASON WARNER
Attorney General of Texas            Assistant Attorney General
                                     State Bar No.: 24028112
CHARLES E. ROY                       Tort Litigation Division, MC 030
First Assistant Attorney General     P.O. Box 12548, Capitol Station
                                     Austin, Texas 78711-2548
JAMES E. DAVIS                       (512) 463-2197
Deputy Attorney General for Civil    FAX: (512) 457-4430
Litigation                           jason.warner@texasattorneygeneral.gov
                                     Counsel for Appellant
KARA KENNEDY
Chief, Tort Litigation Division

                       ORAL ARGUMENT REQUESTED
                    IDENTITY OF PARTIES & COUNSEL
      Appellant certifies that the following is a complete list of the parties, attorneys,

and any other person who has any interest in the outcome of this lawsuit:

Presiding trial judge:          Honorable Ken Molberg
                                Judge, 95th District Court
                                George L. Allen, Sr. Court Bldg.
                                600 Commerce Street, Box 640
                                6th Floor New Tower
                                Dallas, TX 75202
                                214.653.6609 – phone

Appellant:                      The University of Texas Southwestern
                                Medical Center
Attorney of Record:             Jason Warner
                                Assistant Attorney General
                                State Bar No. 24028112
                                Tort Litigation Division, MC 030
                                P.O. Box 12548, Capitol Station
                                Austin, Texas 78711-2548
                                (512) 463-2197
                                FAX: (512) 457-4430
                                jason.warner@texasattorneygeneral.gov
Appellees:                      Verba Klingsick, Diana Klingsick and Jana
                                Carrasco, Individually and on Behalf of the
                                Estate of William R. Klingsick, Deceased

Attorney of Record:             Andrew B. Sommerman
                                SOMMERMAN & QUESADA, L.L.P.
                                3811 Turtle Creek Boulevard, Suite 1400
                                Dallas, TX 75219-4461
                                214.720.0720 - phone
                                214.720.0184 - fax
                                State Bar No. 18842150
                                andrew@textrial.com
                                         ii
Other Parties To The Underlying
Suit, But Not A Party To This
Appeal:

                            Southwest Transplant Alliance
Attorney of Record:         Gary Lykins
                            THE BERRY FIRM, P.L.L.C.
                            1412 Main Street, Suite 2300
                            Dallas, TX 75202
                            214.915.9806 – direct no.
                            214.752.8250 – fax
                            State Bar No. 12715600
                            lykins@berryfirm.com


                            Vitrolife, Inc.
Attorney of Record:         Tim Ryan
                            SCHELL COOLEY LLP
                            15455 Dallas Parkway, Suite 550
                            Addison, TX 75001
                            (214) 665-2005 – phone
                            (214) 754-0060 – Fax
                            State Bar No. 17483600
                            tryan@schellcooley.com




                                     iii
                     REQUEST FOR ORAL ARGUMENT

      Pursuant to rules 39.1 and 39.7 of the Texas Rules of Appellate

Procedure, Appellant hereby requests oral argument in this case.




                                        iv
                                         TABLE OF CONTENTS

                                                                                                                PAGE

IDENTITY OF PARTIES & COUNSEL ................................................................. ii

REQUEST FOR ORAL ARGUMENT ................................................................... iv

TABLE OF CONTENTS ...........................................................................................v

INDEX OF AUTHORITIES................................................................................... vii

STATEMENT OF THE CASE ............................................................................... xii

STATEMENT OF JURISDICTION...................................................................... xiv

ISSUES PRESENTED.............................................................................................xv

APPELLANT’S BRIEF .............................................................................................1

STATEMENT OF FACTS ........................................................................................2

    A. Introduction .....................................................................................................2
    B. Organs and Medication Provided by STA....................................................... 3
    C. STA Solely Responsible to Preservation Solution Mixing and
       Preparation .......................................................................................................3
    D. Mr. Klingsick’s Transplant .............................................................................. 5
    E. Preservation Solution Questioned ................................................................... 6
    F. STA Acknowledgement of the Breach of the Standard of Care ...................10

SUMMARY OF THE ARGUMENT ......................................................................12

ARGUMENT ...........................................................................................................13

   A. Standard of Review & Sovereign Immunity ................................................13




                                                            v
   ISSUE I: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING
            UTSWMC’S PLEA TO THE JURISDICTION WHEN APPELLEES DID
            NOT GIVE UTSWMC FORMAL NOTICE OF THEIR CLAIMS AND
            UTSWMC DID NOT HAVE ACTUAL NOTICE OF THEIR CLAIMS
            WITHIN SIX MONTHS FROM THE DATE OF INCIDENT? ............................. 16

   A. Quick Answer ...............................................................................................16
   B. The Statute: TTCA Notice Requirement for a Waiver of Sovereign
      Immunity .......................................................................................................16
   C. The Texas Supreme Court & Actual Notice .................................................17
   D. McQueen Opinion & Actual Notice in Health Care Liability Cases ............ 20
   E. UTSWMC Did Not Have the Required “Subjective Signal” ........................21
   F. Conclusion ....................................................................................................24

   ISSUE II: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING
             UTSWMC’S PLEA TO THE JURISDICTION WHEN NO TANGIBLE
                     PERSONAL PROPERTY WAS NEGLIGENTLY USED BY ITS
                     EMPLOYEES DURING THE ALLEGED NEGLIGENT MEDICAL
                     TREATMENT IN QUESTION? .................................................................25

    A.        Quick Answer ..........................................................................................25
    B.        TTCA §101.021’s Waiver of Sovereign Immunity Requirements ......... 25
    C.        Appellees’ Negligent Use Allegations Concerning Mr. Klingsick’s
              Lung Transplant .......................................................................................26
    D.        The TTCA Waiver of Immunity Requires a Negligent Use of
              Tangible Personal Property .....................................................................28
    E.        Appellees’ True Allegations Fail to Assert a Waiver of Sovereign
              Immunity .................................................................................................32
    F.        Conclusion ...............................................................................................33

PRAYER .................................................................................................................33

CERTIFICATE OF COMPLIANCE .......................................................................35

CERTIFICATE OF SERVICE ......................................................................... 35, 36

APPENDIX .............................................................................................................37


                                                           vi
                                       INDEX OF AUTHORITIES

CASES                                                                                                            PAGE

Arnold v. Univ. of Texas Southwestern Med. Ctr.,
  279 S.W.3d 464 (Tex. App.—Dallas 2009, no pet.). ..................................... 29-31

Bourne v. Nueces County Hosp. Dist.,
 749 W.W.2d 630 (Tex. App.—Corpus Christi 1988,
 writ denied). ..........................................................................................................18

Cathey v. Booth,
 900 S.W.2d 339 (Tex. 1995). ........................................................................ 18, 24

City of Corsicana v. Stewart,
  249 S.W.3d 412 (Tex. 2008) ......................................................................... 26, 41

City of Dallas v. Carbajal,
  324 S.W.3d 537 (Tex. 2010) ................................................................... 19, 24, 29

City of Garland v. Rivera,
  146 S.W.3d 334 (Tex. App.—Dallas 2004, no pet.). ...........................................31

City of Houston v. Harris,
  192 S.W.3d 167 (Tex. App.– Houston [14th Dist.] 2006, no pet.) .......................26

City of North Richland Hills v. Friend,
  370 S.W.3d 369 (Tex. 2012) ................................................................................14

Colquitt v. Brazoria County,
 324 S.W.3d 539 (Tex. 2010). ...............................................................................17

County of Cameron v. Brown,
 80 S.W.3d 549 (Tex.2002) ...................................................................................14

Dallas Area Rapid Trans. v. Edwards,
 171 S.W.3d 584 (Tex. App.—Dallas 2005, pet. denied) .....................................30

                                                           vii
Dallas Area Rapid Transit v. Whitley,
 104 S.W.3d 540 (Tex. 2003). ........................................................................ 26, 30

Dallas Cty. MHMR v. Bossley,
 968 S.W.2d 339 (Tex. 1998) ................................................................................26

Dung Ngoc Huynh v. Washington,
 339 S.W.3d 309 (Tex. App.—Dallas 2011, no pet.). .................................... 14, 15

El Paso MHMR v. Crissman,
  241 S.W.3d 582 (Tex. App.—El Paso 2007, no pet.) ..........................................30

Franka v. Velasquez,
  332 S.W.3d 367 (Tex. 2011) ......................................................................... 14, 15

Gipson v. City of Dallas,
 247 S.W.3d 465 (Tex. App.—Dallas 2008, pet. denied) .....................................29

Griffin v. Hawn,
 341 S.W.2d 151 (Tex. 1960) ................................................................................13

Harris County v. Cabazos,
 177 S.W.3d 105 (Tex. App.-- Houston [1st Dist.] 2005, no pet.) ........................14

Hosner v. DeYoung,
 1 Tex. 764 (1847) .................................................................................................13

Kamel v. Univ. of Texas Health Sci. Ctr. at Houston,
 333 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) .................30

Kerrville State Hospital v. Clark,
 923 S.W. 2d. 582 (Tex. 1996) ....................................................................... 29, 30

Mission C.I.S.D. v. Garcia,
 253 S.W.3d 653 (Tex. 2008) ......................................................................... 14, 15

Putthoff v. Ancrum,
  934 S.W.2d 164 (Tex. App.—Fort Worth 1996, writ denied) .............................17
                                                         viii
Redden v. Denton Cty,
  335 S.W.3d 743 (Tex. App.– Fort Worth 2011, no pet. h.) .......................... 14, 30

San Antonio State Hosp. v. Cowan,
  128 S.W.3d 244 (Tex. 2004). ...............................................................................28

Somervell County Healthcare Authority v. Sanders,
  169 S.W.3d 724 (Tex. App. - Waco 2006, no pet.)..............................................30

State v. Tennison,
  509 S.W.2d 560 (Tex. 1974) ................................................................................26

Streetman v. Univ. of Tex. Health Sci. Ctr. at San Antonio,
  952 S.W.2d 53 (Tex.App.-- San Antonio 1997, writ denied) ..............................17

Tex. Dep’t of Criminal Justice v. Simons,
  140 S.W.3d 338 (Tex. 2004). ....................................................................... 18, 24

Tex. Dept. of Public Safety v. Petta,
  44 S.W.3d 575 (Tex. 2001) ..................................................................................14

Tex. Dept. of Trans. v. Lueck,
  290 S.W.3d 876 (Tex. 2009) ......................................................................... 13, 15

Tex. Dept. of Transp. v. Jones,
  8 S.W.3d 636 (Tex. 1999). ...................................................................................14

Texas A&M Univ. v. Bishop,
  156 S.W.3d 580 (Tex. 2005) ................................................................................30

Texas A&M Univ. v. Koseoglu,
  233 S.W.3d 835 (Tex. 2007) ................................................................................14

Texas Dep't of Criminal Justice v. Miller,
  51 S.W.3d 583 (Tex. 2001). .................................................................... 15, 28, 29



                                                       ix
Texas Dept. of Crim. Just. v. Hawkins,
  169 S.W.3d 529 (Tex. App.—Dallas 2005, no pet.) ..................................... 30, 31

Texas Dept. of Parks & Wildlife v. Miranda,
  133 S.W.3d 217 (Tex. 2004) ......................................................................... 13, 14

Texas Dept. of Transp. v. Able,
  35 S.W.3d 608 (Tex. 2000) ..................................................................................26

Texas Tech Health Sci. Ctr. v. Ward,
  280 S.W.3d 345 (Tex. App.– Amarillo 2008, pet. denied). .................................29

Timmons v. Univ. Med. Ctr.,
  331 S.W.3d 840 (Tex. App.—Amarillo 2011, no pet.) ........................................17

TNRCC v. IT-Davy,
 74 S.W.3d 849 (Tex. 2002) ..................................................................................13

Univ. of Tex. Health Sci. Ctr. v. Schroeder,
 190 S.W.3d 102 (Tex. App.-- Houston [1st Dist.] 2005, no pet.) ........................30

Univ. of Texas Health Sci. Ctr. at Houston v. McQueen,
 431 S.W.750 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ................... 20, 24

Univ. of Texas M.D. Anderson Cancer Ctr. v. King,
 329 S.W.3d 876 (Tex. App.—Houston [14th Dist.] 2010) ........................... 29, 30

Univ. of Texas Medical Branch at Galveston v. Tatum,
  389 S.W.3d 457 (Tex. App.—Houston [1st Dist.] 2012, no pet. ........................30

Univ. of Texas Medical Branch at Galveston v. York,
 871 S.W.2d 175 (Tex. 1994) ................................................................................28

Univ. of Texas Medical Branch v. Kai Huo Qi,
 402 S.W.3d 374 (Tex. App.-- Houston [14th Dist.] 2013, no pet.) .............. 29, 30

Univ. of Texas Southwestern Med. Ctr. v. Arancibia,
 324 S.W.3d 544 (Tex. 2010) ................................................................................19
                                                       x
Univ. of Texas Southwestern Med. Ctr. v. Loutzenhiser,
 140 S.W.3d 351 & FN 5 (Tex. 2004) ...................................................................15



STATUTES

Tex. Civ. Prac. & Rem Code §51.014(a)(8). ......................................................... xiv

Tex. Civ. Prac. & Rem. Code Ann §§ 101.001(2) & 101.021 ................................28

Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 & 101.022 ...................................26

Tex. Civ. Prac. & Rem. Code § 101.101. ......................................................... 15, 17

Tex. Civ. Prac. & Rem.Code § 101.001(3)(A); .......................................................15

Tex. Educ. Code Ann. §§ 65.02(a)(7) & 74.101 (West 2014) ................................15

Tex. Govt. Code Ann. §311.034 .............................................................................17




                                                     xi
                        STATEMENT OF THE CASE

Nature of the Case:           This is a health care liability suit brought under the
                              Wrongful Death Statute, Chapter 71(a), the Texas
                              Survival Statute, Chapter 71(b), the Medical
                              Liability Act, Chapter 74, and the Texas Tort
                              Claims Act, Chapter 101, of the Texas Civil
                              Practice and Remedies Code. William R. Klingsick
                              underwent a lung transplant surgery at UTSWMC
                              on or about July 23, 2010, and died two days later
                              as a result of complications from the transplant. The
                              procurement and implantation of donor lungs into
                              Mr. Klingsick were done by Southwest Transplant
                              Alliance (STA) and a faculty cardiothoracic
                              surgeon at The University of Texas Southwestern
                              Medical Center (UTSWMC). Appellees Klingsick
                              complain of negligent healthcare and treatment
                              provided by UTSWMC in connection with the
                              preservation solution that was mixed and provided
                              by STA and used for the transportation of the lungs
                              implanted in Mr. Klingsick. UTSWMC filed a plea
                              to the jurisdiction, asserting Appellees failed to
                              provide timely notice of their claims under
                              §101.101 and that no use of tangible personal
                              property caused injury to Appellees under §101.021
                              of the TTCA. As a result, their suit was barred as
                              there is no waiver of sovereign immunity, depriving
                              the trial court of subject-matter jurisdiction. The
                              trial court denied the plea.

Parties in the Trial Court:   The University of Texas Southwestern Medical
                              Center, Appellant, was the Defendant in the trial
                              court.     The Klingsicks, Appellees, were the
                              Plaintiffs. (CR1518-30).

Trial Court:                  The 95th Judicial District Court of Dallas County,
                              Texas, The Honorable Ken Molberg, Presiding
                              Judge. (CR 1301).
                                      xii
Trial Court Disposition:   An Order denying UTSWMC’s plea to the
                           jurisdiction was entered on March 1, 2015 (CR
                           2459-60)(App. A).

Abbreviations:             Throughout this Brief, the original Clerk’s Record
                           will be cited as “CR,” and the Reporter’s Record
                           from the hearing of February 13, 2015 will be cited
                           as “RR.” Where applicable, documents located in
                           the Appendix will be cited to the record and the
                           appendix as “App.”




                                   xiii
                       STATEMENT OF JURISDICTION

      This Court has jurisdiction over this appeal pursuant to Section 51.014(a)(8)

of the Texas Civil Practice and Remedies Code, which provides an interlocutory

appeal from an order of a district court that denies a plea to the jurisdiction filed by

a governmental unit. Tex. Civ. Prac. & Rem Code §51.014(a)(8) (West 2015)(App.

B). This appeal is further accelerated pursuant to the Texas Rules of Appellate

Procedure. Tex. R. App. P. 28.1.




                                          xiv
                          ISSUES PRESENTED

ISSUE I:    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING
            UTSWMC’S PLEA TO THE JURISDICTION WHEN APPELLEES DID NOT GIVE
            UTSWMC FORMAL NOTICE OF THEIR CLAIMS AND UTSWMC DID NOT
            HAVE ACTUAL NOTICE OF THEIR CLAIMS WITHIN SIX MONTHS FROM THE
            DATE OF INCIDENT?

ISSUE II:   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING
            UTSWMC’S PLEA TO THE JURISDICTION WHEN NO TANGIBLE PERSONAL
            PROPERTY WAS NEGLIGENTLY USED BY ITS EMPLOYEES DURING THE
            ALLEGED NEGLIGENT MEDICAL TREATMENT IN QUESTION?




                                    xv
                             NO. 05-15-00246-CV


                       In the Fifth Court of Appeals
                              Dallas, Texas

                The University of Texas Southwestern Medical Center,
                                                  Appellant,
                                        vs.

  Verba Klingsick, Diana Klingsick and Jana Carrasco, Individually and on
           Behalf of the Estate of William R. Klingsick, Deceased,
                                                  Appellees.


      On Appeal from the 95TH Judicial District of Dallas County, Texas
                   Trial Court Cause No. DC-12-07946
              The Honorable Ken Molberg, Judge Presiding


                           APPELLANT’S BRIEF

TO THE HONORABLE FIFTH COURT OF APPEALS:

      Pursuant to Rule 38.1 of the Texas rules of Appellant Procedure, Appellant

The University of Texas Southwestern Medical Center (“UTSWMC”), in the above

styled and numbered appeal, files this Appellant’s Brief and would respectfully show

that the Court should reverse the order denying Appellant’s Plea to the Jurisdiction

and render judgment dismissing the case against Appellant for lack of subject matter

jurisdiction.

                                         1
                          STATEMENT OF FACTS

A.     Introduction

       On July 23, 2010, William Klingsick underwent a bilateral lung transplant

surgery at UTSWMC and died two days later due to complications from the

attempted transplant. (CR 2226-32, 2234). Dr. Matthias Peltz, a faculty cardio-

thoracic surgeon on UTSWMC, removed the lungs from the donor and participated

in the implantation procedure of Mr. Klingsick. (CR 2226-2232, 2239). Mr.

Klingsick suffered several different complications during the surgery, including

graft dysfunction problems and/or reperfusion injuries, which can develop in up to

25 percent of lung transplant patients. (CR 2276-77). Appellees allege that these

injuries were caused by the pH level of the fluid used to preserve the donor lungs

during transportation was not maintained optimally. (CR 1518-30). This allegedly

resulted in damage to the donor lungs that led to injuries and the death of Mr.

Klingsick. (CR 1518-30). They also allege that UTSWMC had actual notice of their

claims within the six (6) months of the implantation surgery through the alleged

knowledge Dr. Peltz had in January 2011 concerning how STA mixed the lung

preservation solution at a subsequent lung procurement. (CR 1518-30; RR 17-25,

41).


                                        2
B.     Organs and Medication Provided by STA

       UTSWMC contracted with STA, an organ procurement organization, to

provide organ procurement services for transplant candidates. (CR 642-54). Within

the contract, UTSWMC and STA agreed that “Southwest Transplant Alliance will

provide    qualified   medical     personnel    with    specialized    training    in

transplantation…and organ recovery and preservation, to perform organ

procurement services.” (CR 646).        UTSWMC and STA further agreed that

“Southwest Transplant Alliance will provide medications, supplies, or devices for

the medical evaluation…and management of the cadaveric donor.” (CR 646, 1155-

56).

       Dr. Marlon Levy, Medical Director of STA, testified that pursuant to the

Transplant Agreement, STA was responsible for bringing and preparing all organ

transport solutions used for organ procurement. (CR1128). Dr. Levy additionally

testified that it was reasonable for UTSWMC and its employees to rely on STA

employees to prepare all organ transport solutions at the donor procurement hospital.

(CR 1396).

C.     STA Solely Responsible to Preservation Solution Mixing and Preparation

       James Cutler was the CEO of STA at the time of the lung procurement and

transplant made the basis of this lawsuit. (CR 1396). The testimony of Mr. Cutler

                                         3
establishes, in relevant part, the Organ Recovery Department of STA was in charge

of mixing transplant solutions and the direct person responsible for such was

Tammie Peterson, Director of Organ Recovery. (CR 1379). His testimony also

established that the individuals who actually did the mixing of preservation solutions

are the surgical coordinators that worked under Tammie Peterson. (CR 1379 – 80).

Tammie Peterson was the person who was in charge of making sure the surgical

coordinators were mixing the preservation solution correctly. (CR 1381). As Mr.

Cutler also described in his testimony:

      In this instance a policy was in place and the concentration of Tham
      changed. We didn't catch that change in concentration and as a result
      we made a mistake and didn't change our policy and retrain our staff to
      the administration of the changed dosage and our organization
      admitted, you know, we made a mistake in that regard.

(CR 1382). Mr. Cutler also testified, “the dose [of THAM] changed one time. We

[STA] didn't catch that change. We [at STA] didn’t incorporate that change into our

policy and procedure and because we didn’t, we made a mistake.” (CR 1382). Mr.

Cutler also testified that “[b]ecause when informed of the change in the dosage,

Tammie Peterson did not make the appropriate changes in the policy and practice.”

(CR 1389).

      In his deposition testimony, Mr. Cutler additionally acknowledged that STA

“takes responsibility for having missed the initial notification of the dosage

                                          4
concentration and not incorporating that” into STA’s policy. (CR 1420). He also

acknowledged that STA regrets that “a mistake was made,” that “it wasn’t caught

before [patients] got their transplant,” and that “it could have been caught and it

wasn’t caught.” (CR 1421). Mr. Cutler’s testimony also describes that it was the

STA’s responsibility to make sure it had a correct policy and procedure. (CR 1394

– 95). Mr. Cutler likewise testified that employees of STA that mixed the solution

in the field were instructed and trained by STA to follow STA’s specific policies and

procedures and not the package inserts contained with the containers of the solutions.

(CR 1434 – 35).

D.    Mr. Klingsick’s Transplant

      On or about July 23, 2010, Tina Reynolds, STA surgical coordinator, in

conformance with the terms of the transplant agreement between STA and

UTSWMC, traveled to the lung donor site to transport and prepare the lung

preservation solution for the lungs that were implanted in Mr. Klingsick. (CR 1729,

1897 – 98, 1902). Tina Reynolds testified she did not follow the instructions on the

bottle of THAM or the bag of Perfadex to mix the solutions. (CR 1897-98, 1908-

10). Instead, Ms. Reynolds testified she mixed the preservation solution according

to STA’s protocol for this lung procurement and transplant. (CR 1897-98, 1908-10).

She testified she prepared the transport solution to flush the lungs according to

                                          5
STA’s policy and flushed the lungs with the solution. (CR 1897 – 98, 1908, 1910,

1914).

      Dr. Matthias Peltz, a faculty cardiothoracic surgeon at UTSWMC, was both

the procuring surgeon involved in retrieving the donor lungs and the surgeon that

participated in implanting the lungs into Mr. Klingsick. (CR 2239, 2269).

Importantly, he did not mix the lung preservation fluid in question. (CR 2274, 974-

75; Exh. O, Pg. 150:6 – 153:18; Exh. P, Pg. 329:15 – 330:4; 331:22 – 332:2). During

Mr. Klingsick’s surgery on July 23, 2010, the implanted lungs were procured and

transported in the preservation solution mixed and prepared by STA. (CR763).

Complications developed during the procedure and the preserved lungs could not be

properly implanted into Mr. Klingsick. (CR 765 – 68, 839). He subsequently died

from complications from this surgery on July 25, 2010. (CR 839, 2234). Dr. Peltz

testified that he did not know at the time of Mr. Klingsick’s surgery that there were

any issues with the pH level of the preservation fluid that Ms. Reynolds mixed and

prepared to transport the donor lungs. (CR 2274 – 75, 1900 – 01).

E.    Preservation Solution Questioned

      On January 10, 2011, while performing a lung transplant for Baylor Medical

Center and one of its patients, Dr. Peltz testified he decided to test the pH level of

some residual preservation fluid using a blood-gas analyzer after that patient’s

                                          6
transplantation. (CR 2249 - 50). He testified his concern was that the preservation

solution may have been too acidic, having a pH level below the optimal range for

lung preservation, because the metabolism of the lungs produces more acid over

time. (CR 2251-52). After the test was done, Dr. Peltz testified the blood-gas

analyzer at Baylor Medical Center returned an out-of range result, meaning that the

device could not register the pH level of the sample. (CR 2251). Dr. Peltz testified

he was not sure how the blood-gas analyzer was calibrated and chalked up the out-

of-range reading as possibly being too low (too acidic), below the optimal pH level

of 7.4, not above. (CR 2251 - 52). He testified that the out-of-range reading was not

indicative of anything wrong. (CR 2252). And although he later mentioned this

reading in passing to his colleagues at UTSWMC, he testified that the out-of-range

result did not motivate him to pursue the matter further as “[t]here was no reason to

believe there was anything incorrect about the way the preservation solution was

made.” (CR 2252). His testimony was he had no reason to believe that there was

anything wrong with the preservation solution being used or how it was mixed and

prepared by STA. (CR 2252, 2276).

      On or about January 25, 2011, Dr. Peltz went on a lung procurement for a

patient on behalf of UTSWMC. (CR 691 – 94, 973, 2257). He testified that upon

return and during the transplant of the lungs on January 26, 2011, he decided to send

                                         7
a sample of the preservation solution to the hospital lab to test the pH level of the

solution. (CR 973 – 74, 2239 – 2256). The result of that test indicated the pH level

to be 8.7, which was alkalotic, or higher, than the optimal level of 7.4. (CR 973 –

75, CR 2413 – 15).

      The following day on January 27, 2011, Dr. Peltz testified that he went on

another lung procurement for another patient at Baylor Medical Center and while

removing the donor lungs, he observed the STA surgical coordinator mixing and

preparing the Perfadex and THAM. (CR 978). He testified that he observed the STA

employee mixing the Perfadex with a bottle THAM that was smaller than he had

seen in the past. (CR 978). Dr. Peltz asked to see the bottle and pointed out to the

STA employee that the manufacturer’s instructions directed that 0.3 ml of THAM

be mixed into each liter of Perfadex. (CR 2260). The STA employee informed Dr.

Peltz that he had been trained and instructed by STA to add 9.5 ml of THAM to each

bag of Perfadex. (CR 691 – 94, 2260). Dr. Peltz testified he informed the STA

employee that he should follow the manufacturer’s instructions instead of the

instructions provided by STA and proceeded with the lung procurement. (CR 978).

      After his completion of the lung transplant on January 27, 2011, Dr. Peltz

notified Tammie Peterson, the STA Director of Organ Recovery, of his discovery

that the preservation solution mixture was being improperly prepared by STA

                                         8
employees and suggested that STA follow the manufacturer’s instructions. (CR 691

– 94, 1101 – 03, 2263). Dr. Peltz also asked STA how long it had been using bottles

of THAM with instructions that 0.3 ml rather than 9.5 ml be mixed with the

Perfadex. (CR 691 – 94, 1101 – 03, 2263). Dr. Levy, STA’s Medical Director,

confirmed in his testimony that on January 27, 2011, STA was informed by

UTSWMC that STA staff were incorrectly mixing the lung preservation solution

during a lung procurement procedure. (CR 1155).

         On January 28, 2011, Janel Tedesco, the UTSWMC Administrative

Transplant Director, emailed STA CEO Jim Cutler requesting that the mixing error

be “addressed in a formal fashion at STA for performance improvement.” (CR 1104

- 05). On February 17, 2011, STA completed an investigation and acknowledged a

mixing error. (CR 673 – 89, 875). At this time, UTSWMC did not know that Mr.

Klingsick was a patient that could have been affected by the mixing error. (CR 673

- 89).

         On July 13, 2011, almost six months after UTSWMC requested an

investigation, STA informed UTSWMC that it had confirmed that the wrong amount

of THAM was mixed by STA for 22 of 31 transplant recipients from October 2009

to February 2011. (CR 660 – 61, 673 – 77, 681 - 85). As Mr. Klingsick’s lung

procurement and transplant occurred during the dates provide by STA, UTSWMC

                                        9
subsequently identified him as a patient who was possibly affected by STA’s

preservation solution mixing error. (CR 696 - 97). On or about June 12, 2012,

Appellees Klingsick sent their first written notice of any claim of liability to

UTSWMC. (CR 699 - 702).

F.    STA Acknowledgement of the Breach of the Standard of Care

      For lung procurements and transplants done by STA between October 2009

and February 2011, which included Mr. Klingsick’s lung transplant, former STA

CEO Cutler specifically testified that STA took responsibility for having the

incorrect dosage in the preservation solution for the lungs received by Mr.

Cummings and for failing to find this error. (CR 1421). Patricia Niles, the current

President and CEO of STA, also acknowledged that STA breached the standard of

care in over-buffering the Perfadex, that STA personnel were improperly mixing

preservation fluid, that there are allegations that such error caused injury and death

to the affected lung transplant recipients, and that at all times relevant to the issues

in this case, STA did not notify UTSWMC of the dosage change. (CR 1747 – 51,

1758, 1777 – 79, 1781). These acknowledgements were reaffirmed by the testimony

of other key STA officials. (CR 1824, 1827 – 28, 1831, 2098 – 99, 2103, 2108,

2152).




                                          10
      In addition, Dr. Levy testified that the incorrect mixing of transplant fluid was

a result of STA employees following STA policy. (CR 1134 – 35, 1137 – 38, 1141,

1157). Dr. Levy explained that STA’s faulty policy gave rise to the lawsuit,

testifying:

                              192
      11        Q. (By Mr. Giberson) Do you agree that all of these lawsuits
      12      arise from a single occurrence – STA’s routine and
      13      repetitive adherence to their faulty (not updated)
      14      written policy and protocol? Do you agree with that
      15      or not?
      16               MR. LYKINS: Objection, form.
      17         A. See, I think the root cause was the policy
      18      wasn’t changed when it should have been.
      19        Q. Okay.
      20        A. And - -
      21               MR. LYKINS: You’ve answered his
      22       question. Wait for a question.
      23        Q. I want to see if you agree with this
      24      statement: There is no evidence that at any time of
      25      any of the transplants made the basis of these

                       193
       1 lawsuits such individuals who actually mixed the
       2 solutions for the transplants in question did so in a
       3 manner other than consistent with the then existing
       4 STA written policy and protocol.
       5       Do you agree with that?
       6   MR. LYKINS: Objection, form.
       7   Subject to that, you may answer.
       8   A. I do agree
       9   Q. Would you agree with the statement that STA
       10 personnel, who actually mixed the solution used with
       11 organ recovery, were trained to and did follow the
       12 then existing written STA policy and protocol
                                           11
       13 regarding how much THAM to mix with Perfadex? Do you
       14 agree with that?
       15 A. I do agree.

(CR 1160). Accordingly, based on the undisputed testimony of STA officials, STA

is the one who was solely responsible for preservation solution mixing error that

occurred in the lung procurement for Mr. Klingsick.

                         SUMMARY OF ARGUMENT

      In this appeal, the trial court erred in denying UTSWMC’s Plea to the

Jurisdiction based on sovereign immunity. Under the TTCA, Appellees are required

to give notice of their claims within six (6) months of the date of the incident in

question for there to be a waiver of UTSWMC’s immunity. Additionally under the

TTCA, the limited waiver only applies to claims that involve some negligent use of

tangible personal property by a UTSWMC employee.

      In the case of Mr. Klingsick’s lung transplant, Appellees did not give formal

notice of their claims within six (6) months of his transplant procedure on July 23,

2010. During the six months after this procedure, UTSWMC also did not have the

subjective awareness of fault to provide it actual notice of Appellees’ claims. In

addition, the only tangible personal property alleged to have caused harm to Mr.

Klingsick and Appellees was the lung preservation solution used to transport his

donor lungs, which was not mixed or prepared by a UTSWMC employee. That

                                        12
solution was mixed and prepared by a STA employee.

      Consequently, Appellees claims do not waive UTSWMC’s sovereign

immunity under the TTCA. This failure deprived the trial court of subject-matter

jurisdiction, requiring it to dismiss Appellees’ suit in its entirety as UTSWMC’s Plea

to the Jurisdiction requested. As a result, the trial court’s order denying UTSWMC’s

plea should be reversed and judgment should be rendered in UTSWMC’s favor.

                                   ARGUMENT

A.    Standard of Review & Sovereign Immunity

      It is a fundamental rule of Texas law that the State of Texas, its governmental

units, and its officers may not be sued without the express consent of the Texas

legislature. Tex. Dept. of Trans. v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Texas

Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); TNRCC v.

IT-Davy, 74 S.W.3d 849, 853-54 (Tex. 2002); Griffin v. Hawn, 341 S.W.2d 151

(Tex. 1960); Hosner v. DeYoung, 1 Tex. 764 (1847). A trial court’s jurisdiction is

conferred by the Constitution and the statutes and a trial court without jurisdiction

cannot render a valid judgment. Miranda, 133 S.W.3d at 226. Whether a trial court

had subject-matter jurisdiction is a question of law and on appeal is reviewed under

the de novo standard. See id. at 228; IT-Davy, 74 S.W.3d at 855. These are long-

standing, well-established principles of Texas law.

                                         13
      A lack of a waiver of a State governmental unit’s sovereign immunity deprives

a trial court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 225-26; Tex.

Dept. of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999). At the trial court, it is the

plaintiff’s burden to prove there is a waiver of sovereign immunity. Miranda, 133

S.W.3d at 226; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If a

plaintiff’s allegations and the jurisdictional evidence negate subject-matter

jurisdiction, the trial court must dismiss the suit. Texas A&M Univ. v. Koseoglu, 233

S.W.3d 835, 840 (Tex. 2007); Miranda, 133 S.W.3d at 226; County of Cameron v.

Brown, 80 S.W.3d 549, 556–57 (Tex.2002); see also City of North Richland Hills v.

Friend, 370 S.W.3d 369, 373 (Tex. 2012); Tex. Dept. of Pub. Safety v. Petta, 44

S.W.3d 575, 577 & 580 (Tex. 2001); Harris County v. Cabazos, 177 S.W.3d 105,

111–12 (Tex. App.-- Houston [1st Dist.] 2005, no pet.)(enlarging the scope of the

waiver of sovereign immunity under the TTCA through artful pleading is not

permitted).

      Concerning tort actions and actions under the common law, the State of Texas,

even if it has committed tortious acts, is immune from suit unless it gives its consent

to be sued. Miranda, 133 S.W.3d at 224; see also Franka v. Velasquez, 332 S.W.3d

367, 369 (Tex. 2011); Mission C.I.S.D. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008);

see also Dung Ngoc Huynh v. Washington, 339 S.W.3d 309, 311 (Tex. App.—Dallas

                                          14
2011, no pet.). Governmental units of the State, such as Appellant UTSWMC, enjoy

the protection afforded by this sovereign immunity. Lueck, 290 S.W.3d at 880; Univ.

of Texas Southwestern Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 353-54 & FN 5

(Tex. 2004)(acknowledging that UTSWMC is a State governmental unit under the

TTCA). 1 The Texas Tort Claims Act (TTCA) is the only statute that provides a

potential waiver of this immunity and is applicable in limited circumstances, subject

to further limitations, exclusions, and exceptions. Tex. Civ. Prac. & Rem. Code Ann.

§§ 101.001 et seq. (West 2015). This Court must look to the terms of the TTCA to

determine the scope of the waiver and then consider the particular facts of the case

to determine whether it comes within that scope. Texas Dept. of Criminal Justice v.

Miller, 51 S.W.3d 583, 586-87 (Tex. 2001). And unless and until the Legislature

states otherwise, there are absolutely no other waivers of sovereign immunity which

can arise against a State agency for tort causes of action. Franka, 332 S.W.3d at 369;

Garcia, 253 S.W.3d at 659; Washington, 339 S.W.3d at 311.

      In this case, Appellees fail to meet the requirements for waiver under TTCA

§§ 101.101 (notice) and 101.021 (use of tangible personal property). The true

allegations of Appellees and the evidence clearly negates a waiver of Appellant



1
  See Tex. Civ. Prac. & Rem.Code § 101.001(3)(A); Tex. Educ. Code Ann. §§ 65.02(a)(7) &
74.101 (West 2014)(App. C, D & E)(UTSWMC is a component of the University of Texas System
and under the control and management of the Board of Regents).
                                             15
UTSWMC’s sovereign immunity.

ISSUE I:    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING
            UTSWMC’S PLEA TO THE JURISDICTION WHEN APPELLEES DID NOT
            GIVE UTSWMC FORMAL NOTICE OF THEIR CLAIMS AND UTSWMC
            DID NOT HAVE ACTUAL NOTICE OF THEIR CLAIMS WITHIN SIX MONTHS
            FROM THE DATE OF INCIDENT?

A.    Quick Answer

      Yes. In this case, Appellees did not give formal notice of their claims within

six (6) months of his transplant procedure on July 23, 2010. In addition, during the

six months after Mr. Klingsick’s procedure, UTSWMC did not have the subjective

awareness of fault required to provide it with actual notice of Appellees’ claims.

Accordingly, the trial court should have dismissed Appellees’ suit against

UTSWMC.

B.    The Statute: TTCA Notice Requirement for a Waiver of Sovereign
      Immunity

      The Notice of Claim provision in the TTCA provides in its entirety:

      (a)   A governmental unit is entitled to receive notice of a claim
            against it under this chapter not later than six (6) months after
            the day the incident giving rise to the claim occurred. The
            notice must reasonably describe:
                  (1) The damage or injury claims;
                  (2) The time and place of the incident; and
                  (3) The incident.

      (b)    A city’s charter and ordinance provisions requiring notice within
            a charter period permitted by law are ratified and approved.

                                        16
       (c)    The notice requirements provided or ratified and approved by
              Subsections (a) and (b) do not apply if the governmental unit has
              actual notice that death has occurred, that the claimant has
              received some injury, or that the claimant’s property has been
              damaged.

Tex. Civ. Prac. & Rem. Code § 101.101 (West 2015)(emphasis added)(App. F). This

notice requirement is jurisdictional and without compliance, UTSWMC’s sovereign

immunity is not waived. Tex. Govt. Code Ann. §311.034 (West 2015) (“Statutory

prerequisites to a suit, including the provision of notice, are jurisdictional

requirements in all suits against a governmental entity.”)(App. G); Colquitt v.

Brazoria County, 324 S.W.3d 539, 542-43 (Tex. 2010).

       In this case, it is undisputed that Appellees did not provide written notice of

their claim within six (6) months of Mr. Klingsick’s lung transplant procedure and

they asserted before the trial court that they are relying on the actual notice of claim

portion of the TTCA. 2 (RR 17-25, 41; CR699 - 702, Klingsick’s Notice of Claim

Letter, dated June 12, 2012, Exh. P). However, Appellees’ assertion that UTSWMC

had actual knowledge is negated by the evidence in this case.

C.     The Texas Supreme Court & Actual Notice

       Concerning actual notice under §101.101(c), the Texas Supreme Court has


2
 The discovery rule does not apply to claims under the TTCA Timmons v. Univ. Med. Ctr., 331
S.W.3d 840, 848 (Tex. App.—Amarillo 2011, no pet.); Streetman v. Univ. of Tex. Health Sci. Ctr.
at San Antonio, 952 S.W.2d 53, 55–56 (Tex.App.-- San Antonio 1997, writ denied); Putthoff v.
Ancrum, 934 S.W.2d 164, 174 (Tex. App.—Fort Worth 1996, writ denied).
                                              17
issued three (3) landmark opinions which pertain to the TTCA’s notice of claim’s

actual notice provision and are pertinent to this case. The first landmark case is

Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The Cathey court held that actual

notice exists only when the governmental unit, within six (6) months of the act upon

which the claim is based, has knowledge of (1) the death or injury, (2) its alleged

fault producing or contributing to death or injury, and (3) the names and

addresses of all persons involved. Cathey, 900 S.W.2d at 341 (emphasis

added)(approving of Bourne v. Nueces County Hosp. Dist., 749 W.W.2d 630, 632-

33 (Tex. App.—Corpus Christi 1988, writ denied)). In Cathey, the Supreme Court

held that medical records that merely report the event or procedures on a patient of

the complained of event, fails to adequately convey to the hospital its possible

culpability for any injury to the plaintiff. Cathey, 900 S.W.2d at 342.

      The second landmark Supreme Court case is Tex. Dep’t of Criminal Justice v.

Simons, 140 S.W.3d 338 (Tex. 2004). The Simons court held:

      [W]e hold that actual notice under section 101.101(c) requires that a
      governmental unit have knowledge of the information it is entitled to
      be given under section 101.101(a) and a subjective awareness that its
      fault produced or contributed to the claimed injury.

Simons, 140 S.W.3d at 348 (emphasis added). The Simons court clarified that the

notice of claim provision “includes subjective awareness of its fault, as ultimately

alleged by the claimant, in producing or contributing to the claimed injury.” See id.
                                         18
at 347. Merely investigating an event is insufficient to provide actual notice of a

claim. See id. at 348; see also Univ. of Texas Southwestern Med. Ctr. v. Arancibia,

324 S.W.3d 544, 549-550 (Tex. 2010)(evidence and knowledge of a “bad result,” in

and of itself, is not enough for subjective awareness of fault).

      The third landmark Supreme Court case is City of Dallas v. Carbajal, 324

S.W.3d 537 (Tex. 2010). In Carbajal, the Supreme Court held that a “police report”

on an improperly blocked roadway, “did not provide the City with subjective

awareness of fault because it did not even imply, let alone expressly state, that the

City was at fault.” Id. at 539. In this case, the Dallas Police report in question

reported that the plaintiff had stated that she saw barricades, but none were blocking

her way into the freeway. See id. at 538. As a result, the police report stated plaintiff

drove onto the unblocked freeway and into an excavated gap of the road. See id. The

police report also contained the officer’s observation that there were no barricades

blocking the freeway entrance. See id. Additionally, the report did not indicate who

was responsible for the missing barricades or rule out “the possibility that a private

contractor or another governmental entity (such as the county or state) could have

been responsible for” the missing barricades. Id. at 539. Accordingly, the Carbajal

court held that pursuant to its decision in Simmons, the City of Dallas did not have

the specific subjective awareness of fault required for actual notice because the

                                           19
police report did not indicate that the City was at fault. See id.

D.    McQueen Opinion & Actual Notice in Health Care Liability Cases

      Since Carbajal, the Houston Court of Appeals in health care liability cases

has also found that the health care provider must have subjective awareness of its

specific fault beyond the medical records or a “bad result.” Univ. of Texas Health

Sci. Ctr. at Houston v. McQueen, 431 S.W.750, 761 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). As the McQueen court stated, for there to be actual notice to

the governmental unit:

      [T]here must exist something in the circumstances to provide a
      subjective signal to the governmental unit within the six-month
      period that there might be a claim… There must be something more
      than the mere fact of a “bad result,” even one that perhaps a prudent
      person or physician would have investigated.

McQueen, 431 S.W.3d at 761 (emphasis added). This case is on-point with

Appellees Klingsick’s suit.

      In McQueen, the evidence consisted of medical records and a UTHSCH

physician’s note in a progress report of a “‘bowel injury during hysterectomy’ that

would delay [plaintiff’s] recovery.” Id. at 760. After the procedure in question, risk

management was not notified, no supervising physician was given a “heads up”

about the incident, and no UTHSCH review or investigation was done, “much less

one leading to any assessment by UTHSCH that any particular error, even if

                                           20
‘technical,’ probably had occurred or that any portion of Teresa’s care ‘contributed’

to her injury.” Id. Additionally, no review concerning the “standard of care”

occurred during the six months after the procedure. See id. With regard to the

testimony of the UTHSCH physician who provided the care in question, she

acknowledged “that the most likely possible cause of [plaintiff’s] bowel injury was

a thermal injury from the cautery tools, although she did not see or note any direct

contact of any tool to [plaintiff’s] bowel or any coupling between tools.” Id. She

testified that she did not see this injury during the procedure and “that if she had

noted a bowel injury during the hysterectomy, she would have documented it and

called in general surgery to evaluate the bowel.” Id. The physician also testified that

she “would not change anything she did during the procedure,” and that “she did not

believe that her use of any of the cautery tools fell below the standard of care.” Id.

As a result, the Houston Court of Appeals ruled that this evidence did not show that

UTHSCH had a “subjective signal” of fault within the six month notice period and

there was no waiver of UTHSCH’s sovereign immunity under the TTCA. See id. at

761 & 762.

E.    UTSWMC Did Not Have the Required “Subjective Signal”

      In the case before the Court, the trial court denied UTSWMC’s plea to the

jurisdiction based on Appellees’ assertion that within six (6) months of Mr.

                                          21
Klingsick’s surgery, a UTSWMC employee had the requisite subjective awareness

of its fault. (CR 2459-60)(RR 17-25, 41). The trial court’s ruling, however,

completely ignores the evidence in the record.

      Appellees’ claims against UTSWMC arise from Mr. Klingsick’s lung

transplant procedure that occurred on July 23, 2010. Hence, at the latest, UTSWMC

was entitled to notice of Appellees’ claims under the TTCA on or before January 23,

2011. The evidence shows that the first time UTSWMC knew that Mr. Klingsick

was one of the patients whose transplanted lungs had been transported in the

improperly mixed STA preservation solution was on July 13, 2011. (CR 660 – 61,

673 – 89). This occurred when STA informed UTSWMC of the date ranges of the

transplant patients affected. (CR 660 – 61, 681 - 85). Prior to this date, UTSWMC

could not identify Mr. Klingsick as an affected patient and did not have any

knowledge that Mr. Klingsick’s transplanted lungs were preserved in the improperly

mixed and prepared solution. (CR 673 - 77).

      But, in attempt to confer jurisdiction on the trial court, Appellees argued at

the trial court that the knowledge Dr. Peltz had of an inconclusive result of a blood-

gas analyzer test of the STA preservation solution on January 10, 2011, while

performing a lung transplant procedure at Baylor Medical Center for a Baylor

Medical Center patient, gave UTSWMC subjective awareness of its fault within the

                                         22
six (6) month notice period. This incident failed to provide UTSWMC with actual

notice of the Klingsicks’ claims for multiple reasons.

      At deposition, Dr. Peltz testified the January 10, 2011, he performed the lung

procurement and transplant for Baylor Medical Center on a Baylor patient, not for

or at UTSWMC or on a UTSWMC patient. (CR 2250). He testified that after that

transplant, although the blood-gas analyzer returned an out-of-range reading for the

sample of preservation solution he tested, his concern was that the preservation

solution may have been too acidic, having a pH level below the optimal range

because the metabolism of the lungs produces more acid over time, not above, as

was later determined to be the problem. (CR 2251 - 52). He testified that he did not

know how the blood-gas analyzer was calibrated and therefore the out-of-range

reading was not indicative of anything specifically wrong. (CR 2252 - 55). Although

he later mentioned this reading to his colleagues at UTSWMC in passing, Dr. Peltz

testified this result did not motivate him to pursue the matter any further as “[t]here

was no reason to believe there was anything incorrect about the way the preservation

solution was made.” (CR 2252). He testified he subjectively had no reason to believe

that there was anything wrong with the preservation solution or how it was mixed

and prepared by STA at that time. (CR 2252, 2276). Additionally, all of the

undisputed testimony in the record conclusively established that the preservation

                                          23
solution in question was mixed and prepared by a STA employee, not by Dr. Peltz

or any other UTSWMC employee. (CR 974 – 75, 1897 – 98, 1902, 2274).

       Consequently, all of this evidence conclusively negates Appellees’ allegation

that UTSWMC had the subjective awareness of fault necessary to meet the

requirements for actual notice delineated by the Texas Supreme Court and the

McQueen opinion. Carbajal, 324 S.W.3d at 539; Simons, 140 S.W.3d at 348;

Cathey, 900 S.W.2d at 341; McQueen, 431 S.W.3d at 761. The knowledge that Dr.

Peltz had on or before January 23, 2011, does not equate to a “subjective signal” of

fault on behalf of UTSWMC as a matter of law. McQueen, 431 S.W.3d at 761 &

762.

F.     Conclusion

       Based on the evidence in this case, Appellees failed to provide UTSWMC

with notice of their claims as required by Tex. Civ. Prac. & Rem. Code § 101.101.

This failure prevents a waiver of UTSWMC’s sovereign immunity and deprived the

trial court of subject-matter jurisdiction. Simons, 140 S.W.3d at 348; Cathey, 900

S.W.2d at 341; McQueen, 431 S.W.3d at 761 & 762. Therefore, the trial court should

have dismissed Appellees’ suit against UTSWMC and this Court should reverse and

render judgment in UTSWCM’s favor. See id.




                                         24
ISSSUE II: DID THE TRIAL COURT    COMMIT REVERSIBLE ERROR IN DENYING
           UTSWMC’S PLEA TO       THE JURISDICTION WHEN NO TANGIBLE
              PERSONAL PROPERTY WAS NEGLIGENTLY USED BY ITS EMPLOYEES
              DURING THE ALLEGED NEGLIGENT MEDICAL TREATMENT IN
              QUESTION?

A.     Quick Answer

       Yes. Appellees cannot show that any UTSWMC employees negligently used

any tangible personal property that caused injury to Mr. Klingsick. The true culprit

in this case, the improper mixing and preparing of the lung preservation solution for

Mr. Klingsick’s donor lungs was completed by STA’s employees, not UTSWMC’s.

In addition, the other allegations made by Appellees fail to assert a true use of

tangible personal property caused injury to Mr. Klingsick. As a result, there is no

applicable waiver of sovereign under the TTCA that allows Appellees to maintain

their suit against UTSWMC and the trial court should have dismissed their claims

in their entirety.

B.     TTCA §101.021’s Waiver of Sovereign Immunity Requirements

       Under the TTCA, the Texas Legislature and Supreme Court have made clear

that the waiver of immunity applies in only three (3) specific scenarios where

damages are proximately caused by:

       1)     the operation or use of a motor driven vehicle or equipment;
       2)     a condition or use of tangible property; or
       3)     premises defects.

                                         25
Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 & 101.022 (West 2015)(App. H &

I); City of Corsicana v. Stewart, 249 S.W.3d 412, 413 (Tex. 2008); Texas Dept. of

Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000); Dallas Cty. MHMR v. Bossley,

968 S.W.2d 339, 343 (Tex. 1998). At the trial court, it is the plaintiff’s burden to

establish the TTCA waives sovereign immunity. Dallas Area Rapid Transit v.

Whitley, 104 S.W.3d 540, 542 (Tex. 2003).

      In a suit brought under the TTCA, a claimant can only proceed under one

theory of liability for recovery. Miranda, 133 S.W.3d at 233 (citing State v.

Tennison, 509 S.W.2d 560, 562 (Tex. 1974))(the TTCA does not create two separate

grounds of liability); City of Houston v. Harris, 192 S.W.3d 167, 174 (Tex. App.–

Houston [14th Dist.] 2006, no pet.). In this case, based on Appellees’ allegations and

the jurisdictional evidence, they could only proceed under a use of tangible personal

property theory, which the evidence does not establish as actionable. (CR 1520 - 24).

C.    Appellees’ Negligent Use Allegations Concerning Mr. Klingsick’s Lung
      Transplant

      Appellees alleged that employees of UTSWMC, “negligently used or misused

the tangible personal property, including but not limited to the improperly mixed

fluid used to transport the lungs that were ultimately transplanted into William

Klingsick and the lungs themselves that were implanted into Mr. Klingsick.” (CR

                                         26
1523 - 24). More specifically, they alleged the negligence included the following:

      a. failing to preserve and/or maintain organs viable for William
      Klingsick as an organ transplant recipient;

      b. failing to check the pH level of the organ transporting fluid before
      performing the operation at issue;

      c. failing to provide a healthy and viable organ to William Klingsick as
      an organ transplant recipient;
      d. negligently instructing Southwest Transplant Alliance how to use the
      transplant solution;

      e. negligently instructing Southwest Transplant Alliance on how to use
      the lungs in question;

      f. failing to follow appropriate surgery procedures;

      g. failing to properly train and supervise its staff;

      h. allowing untrained and/or unqualified staff to care and treat William
      Klingsick;

      i. failing to maintain proper written procedures governing transplanted
      organs;

      j. instructing Southwest Transplant Alliance to erroneously mix
      Perfadex; and

      k. negligently using the lungs and/or transplant solution in question.

(CR 1522 - 23). Appellees allege these acts or omissions of negligence proximately

caused injuries and damages to them and Mr. Klingsick. (CR 1523 - 24). In

summary, their claims focus on allegations of a misuse of the lungs, failure to take

action, negligent hiring, training and supervising, misuse of information and
                                           27
negligent medical judgment.

      The conclusive evidence established in the record above demonstrates all

actions and omissions concerning the mixing and preparing of the lung preservation

solution were done by a STA employee, and not that of UTSWMC. As a result,

allegations concerning the lungs do not legally apply to UTSWMC. And all of the

other alleged acts or omissions did not involve a use of tangible personal property.

D.    The TTCA Waiver of Immunity Requires a Negligent Use of
      Tangible Personal Property

      Section 101.021(2) waives immunity for a use of personal property only if the

governmental unit, through its employee(s), is itself the user. Tex. Civ. Prac. & Rem.

Code Ann §§ 101.001(2) & 101.021; San Antonio State Hosp. v. Cowan, 128 S.W.3d

244, 246 (Tex. 2004). “Use” means “to put or bring into action or service; to employ

for or apply to a given purpose.” Id. Texas Dep't of Criminal Justice v. Miller, 51

S.W.3d 583, 587 (Tex. 2001). Concerning proximate causation, the using of the

tangible personal property must have actually caused the injury or death, mere

involvement of the tangible property is not enouogh. Miller, 51 S.W.3d at 588; see

also Cowan, 128 S.W.3d at 245-46; Univ. of Texas Med. Branch v. York, 871 S.W.2d

175, 178 n. 5 (Tex. 1994). And concerning health care liability claims, the Texas

Supreme Court stated in Miller:


                                         28
      There cannot be a waiver of sovereign immunity in every case in which
      medical treatment is provided by a public facility. Doctors in state
      medical facilities use some form of tangible personal property nearly
      every time they treat a patient. If there is waiver in all those cases, the
      waiver of immunity is virtually unrestricted, which is not what the
      Legislature intended.

Miller, 51 S.W.3d at 587 (citing Kerrville State Hospital v. Clark, 923 S.W. 2d. 582,

586 (Tex. 1996)). Accordingly, a negligent use of tangible personal property is

required to waive sovereign immunity. See id.

      As a result of this negligent use of tangible personal property requirement

under the TTCA, allegations that assert a non-use or use of intangible property do

not properly assert a waiver of immunity. Allegations and evidence of a misuse of

information do not waive sovereign immunity. Univ. of Texas Medical Branch at

Galveston v. York, 871 S.W.2d 175, 178 (Tex. 1994); Univ. of Texas Medical Branch

v. Kai Huo Qi, 402 S.W.3d 374, 388 (Tex. App.-- Houston [14th Dist.] 2013, no

pet.); Univ. of Texas M.D. Anderson Cancer Ctr. v. King, 329 S.W.3d 876, 880 (Tex.

App.—Houston [14th Dist.] 2010); Arnold v. Univ. of Texas Southwestern Med. Ctr.,

279 S.W.3d 464, 469 (Tex. App.—Dallas 2009, no pet.)(citing Gipson v. City of

Dallas, 247 S.W.3d 465, 471 (Tex. App.—Dallas 2008, pet. denied)); Texas Tech

Health Sci. Ctr. v. Ward, 280 S.W.3d 345, 356 (Tex. App.– Amarillo 2008, pet.

denied)(all holding that misuse of medical information is not a use of property under

the TTCA). Allegations and evidence of negligent judgment, errors in medical
                                          29
judgment in assessing medical conditions, failure to act, failure to follow accepted

medical treatment practices of the standard of care, or a failure to do a proper medical

investigation also do not fall under the TTCA waiver. Clark, 923 S.W.2d at 584; Qi,

402 S.W.3d at 388; King, 329 S.W.3d at 880-81; Univ. of Texas Medical Branch at

Galveston v. Tatum, 389 S.W.3d 457, 462 (Tex. App.—Houston [1st Dist.] 2012, no

pet.); Kamel v. Univ. of Texas Health Sci. Ctr. at Houston, 333 S.W.3d 676, 686

(Tex. App.—Houston [1st Dist.] 2010, pet. denied); Arnold, 279 S.W.3d at 468-69;

Redden v. Denton Cty, 335 S.W.3d 743, 751 (Tex. App.– Fort Worth 2011, no pet.

h.); Somervell County Healthcare Authority v. Sanders, 169 S.W.3d 724, 727 - 28

(Tex. App.-- Waco 2006, no pet.)(all holding that claims of negligence in judgment,

human error, failure to act, follow proper medical procedure or investigate do not

assert a use of tangible personal property). And allegations and evidence of negligent

hiring, training and supervising do not fall under the applicable waiver of sovereign

immunity. Texas A&M Univ. v. Bishop, 156 S.W.3d 580, 583 (Tex. 2005); Whitley,

104 S.W.3d at 543; Kamel, 333 S.W.3d at 686; King, 329 S.W.3d at 881; El Paso

MHMR v. Crissman, 241 S.W.3d 582 (Tex. App.—El Paso 2007, no pet.)(citing

Petta, 44 S.W.3d at 581); Univ. of Tex. Health Sci. Ctr. v. Schroeder, 190 S.W.3d

102 (Tex. App.-- Houston [1st Dist.] 2005, no pet.); Dallas Area Rapid Trans. v.

Edwards, 171 S.W.3d 584, 587-88 (Tex. App.—Dallas 2005, pet. denied); Texas

                                          30
Dept. of Crim. Just. v. Hawkins, 169 S.W.3d 529, 533 (Tex. App.—Dallas 2005, no

pet.); City of Garland v. Rivera, 146 S.W.3d 334, 338-39 (Tex. App.—Dallas 2004,

no pet.)(all holding that claims of negligent hiring, training and supervising do not

properly assert a use of tangible personal property under the TTCA).

      The opinion that is instructive to this case is Arnold. Arnold v. Univ. of Texas

Southwestern Med. Ctr., 279 S.W.3d 464, 468-69 (Tex. App.—Dallas 2009, no pet.).

In Arnold, the plaintiff sued UTSWMC for one of its physician’s alleged negligence

in performing a breast augmentation procedure. See id. at 468. Plaintiff’s allegations

in that case included a failure to do a proper pre-surgery investigation, respond to

post-surgery concerns, failure to document the proper size of the replacement

implants needed, and the use of the larger implants “deformed her breasts,” causing

injury to her. See id. 468-470. Upon closer review, the Court found that plaintiff’s

allegations were truly of errors in judgment (miscalculation or misdiagnosis) and a

misuse of information. See id. As a result, the Court stated:

      [b]ecause the true substance of the Arnolds’ pleadings is that [the
      UTSWMC surgeon] miscalculated or misdiagnosed the necessary size
      of replacement breast implants, the fact that the pleadings also identify
      a piece of tangible personal property used during the procedure does
      not affect our decision that this is not a claim for the negligent use of
      tangible personal property.

Id. Accordingly, unless Appellees Klingsick could prove an employee of UTSWMC

negligently used tangible personal property concerning Mr. Klingsick’s lung
                                          31
transplant, the TTCA waiver of sovereign immunity does not apply. The true

allegations of Appellees and the evidence in the record fail to implicate the TTCA’s

waiver.

E.    Appellees’ True Allegations Fail to Assert a Waiver of Sovereign
      Immunity

      Upon review of the gravamen of Appellees’ allegations and evidence, their

claims focus on the negligent mixing and preparing of the lung preservation solution

and the failures to investigate, discover or prevent this mistake. (CR 1523 - 24; P’s

Pet. 13.01-13.02). Along those lines, Appellees’ list of failures in not discovering

the improper mixing and preparation of the solution, or taking other action, aim

directly at UTSWMC’s failure in hiring, training and supervising its employees as

well as a failure to act, misuse of information and negligent medical judgment. All

of these allegations fail as a matter of law.

      This case truly focuses on the negligent preparation of lung preservation

solution, which UTSWMC did not mix or prepare. It is undisputed the preservation

solution in question for Mr. Klingsick’s lung transplant was mixed and prepared

solely by STA employees. Accordingly, all of Appellees’ allegations concerning the

lung preservation solution fail as a matter of law.

      Turning to the remaining allegations made by Appellees against UTSWMC,

the failure to act and failure to properly hire, train and supervise its employees, these
                                           32
claims also fail as a matter of law. Additionally, the other allegations that assert a

failure to act, misuse of information and negligent medical judgment also fail. The

numerous cases cited above from the Texas Supreme Court and the Courts of

Appeals has clearly established such allegations do not implicate the TTCA’s limited

waiver of sovereign immunity and are barred as a matter of law.

F.     Conclusion

       Based on the allegations and the evidence in the record, Appellees did not

prove the limited waiver of sovereign immunity under the TTCA applies to their

health liability claims against UTSWMC. No alleged negligent use of tangible

personal property by UTSWMC’s employees caused injury to Mr. Klingsick or

Appellees. This failure deprived the trial court of subject-matter jurisdiction. As a

result, the trial court committed error when it did not grant UTSWMC’s Plea to the

Jurisdiction on these same grounds. This Court should reverse the trial court’s denial

of the Plea and render judgment in favor of UTSWMC, dismissing Appellees’ case

in its entirety.

                                      PRAYER

       WHEREFORE, for the reasons stated above, Appellant UNIVERSITY OF

TEXAS SOUTHWESTERN MEDICAL CENTER prays that this Court reverse the

trial courts denial of its Plea to the Jurisdiction and render judgment that Appellees’

                                          33
suit be dismissed in its entirety. Appellant further prays for such other and further

relief, both at law and in equity, to which it may show itself justly entitled.

                                  Respectfully submitted,

                                  KEN PAXTON
                                  Attorney General of Texas

                                  CHARLES E. ROY
                                  First Assistant Attorney General

                                  JAMES E. DAVIS
                                  Deputy Attorney General for Civil Litigation

                                 KARA L. KENNEDY
                                 Chief, Tort Litigation Division

                                  /s/   Jason Warner
                                  JASON WARNER
                                  Assistant Attorney General
                                  State Bar No. 24028112
                                  Tort Litigation Division, MC-030
                                  P.O. Box 12548, Capitol Station
                                  Austin, Texas 78711-2548
                                  (512) 463-2197
                                  FAX: (512) 457-4430
                                  Jason.warner@texasattorneygeneral.gov
                                  Counsel for Appellant




                                           34
                      CERTIFICATE OF COMPLIANCE

        I hereby certify that this Appellant’s Brief contains 7,484 computer generated
words, as calculated by Microsoft Word 2013, in accordance with Tex. R. App.
P. 9.4.
                                       /s/   Jason Warner
                                       JASON WARNER
                                       Assistant Attorney General



                         CERTIFICATE OF SERVICE
       I do hereby certify compliance with Tex. R. Civ. P. 21. A true and correct
copy of the foregoing instrument has been served on all counsel, by electronic
transmission to the electronic mail address on file with the electronic filing manager
Rule 21a(1). If a party has not designated an electronic mail address with the
electronic filing manager, the party was served a true and correct copy of the
foregoing instrument in person, by mail, by commercial delivery service by fax or
by email, or by such other manner as the Court in its discretion may direct. Rule
21a(2). Service was made on all parties as provided on April 30, 2015.

      Andrew B. Sommerman
      SOMMERMAN & QUESADA, L.L.P.
      3811 Turtle Creek Boulevard, Suite 1400
      Dallas, TX 75219-4461
      214.720.0720 - phone
      214.720.0184 - fax
      State Bar No. 18842150
      andrew@textrial.com
      Attorney for Appellees




                                             35
 Gary Lykins
 THE BERRY FIRM, P.L.L.C.
 1412 Main Street, Suite 2300
 Dallas, TX 75202
 214.915.9806 – direct no.
 214.752.8250 – fax
 State Bar No. 12715600
 lykins@berryfirm.com
Attorney for Non-Party Southwest Transplant Alliance

Tim Ryan
SCHELL COOLEY LLP
15455 Dallas Parkway, Suite 550
Addison, TX 75001
(214) 665-2005 – phone
(214) 754-0060 – Fax
State Bar No. 17483600
tryan@schellcooley.com
Attorney for Non-Party Vitrolife, Inc.




                                         /s/   Jason Warner
                                         JASON WARNER
                                         Assistant Attorney General




                                  36
                                                  APPENDIX

                                                                                                             TAB
Trial Court’s Order denying Appellant’s Plea to the Jurisdiction,
dated March 1, 2015.................................................................................................. A

TEX. CIV. PRAC. & REM. CODE §51.014(a)(8) ......................................................... B

TEX. CIV. PRAC. & REM. CODE §101.001(3)(a) ....................................................... C

TEX. EDUC. CODE §65.02(a)(7) ................................................................................ D

TEX. EDUC. CODE §74.101 ..................................................................................... E

TEX. CIV. PRAC. & REM. CODE §101.101 ................................................................. F

TEX. GOVT. CODE §311.034 .................................................................................... G

TEX. CIV. PRAC. & REM. CODE §101.021 ................................................................. H

TEX. CIV. PRAC. & REM. CODE §101.022................................................................... I




                                                         37
APPENDIX “A”
                                                                                                     4fhD
                                                                                              000562
                                         DC-12-07946


VERBA KLINGSICK, DIANA KLINGSICK                §           IN THE DISTRICT COURT OF
AND JANA CARRASCO, INDIVIDUALLY                 §
AND ON BEHALF OF THE ESTATE OF                  §
WILLIAM R. KLINGSICK, DECEASED                  §
            Plaintiffs,                         §
                                                §
vs.                                             §           DALLAS COUNTY, TEXAS
                                                §
SOUTiiWESTTRANSPLANT ALLIANCE,                  §
THE UNIVERSITY OF TEXAS                         §
SOUTHWESTERN MEDICAL CENTER,                    §
and VITROLIFE, INC.                             §
             Defendants.                        §           95tb JUDICIAL DISTRICT

 ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS AGAINST THE UNIVERSITY
  OF TEXAS SOUTHWESTERN MEDICAL CENTER AND DEFENDANT'S PLEA TO
      THE JURISDICTION, MOTION FOR CONTINUANCE, AND MOTION TO
             TftANSFER PLAINTIFFS' MOTION FOR SANCTIONS

         On Friday, February 13, 2013 the Court heard the following motions and plea:

(1) Plaintiffs' Motion to Enforce Order and for Sanctions Against Defendant the University of

Texas Southwestern Medical Center; (2) Defendant the University of Texas Southwestern

Medical Center's Objections to Filing and Emergency Motion to Transfer Plaintiff's [sic] Motion

to Enforce Order and for Sanctions to Consolidated Case; (3) Defendant the University of Texas

Southwestern Medical Center's Motion for Continuance of Plaintiffs' Motion to Enforce Order

and for Sanctions; and (4) the University of Texas Southwestern Medical Center's Plea to the

Jurisdiction. The Court has heard argument by counsel and read the motions and briefs in support

of the parties' positions.

         The Court therefore ORDERS, ADJUDGES, and DECREES the following:

      1. Plaintiff's Motion to Enforce Order and for Sanctions against Defendant the University of
         Texas Southwestern Medical Center is CARRIED WITH THE CASE;

      2. Defendant the University of Texas Southwestern Medical Center's Objections to Filing
         and Emergency Motion to Transfer Plaintiff's [sic] Motion to Enforce Order and for
         Sanctions to Consolidated Case is DENIED;

      3. Defendant the University of Texas Southwestern Medical Center's Motion for
         Continuance of Plaintiffs' Motion to Enforce Order and for Sanctions is DENIED; and

ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS AND RELATED DEFENSE MOTIONS AND
DEFENDANT'S PLEA TO THE JURISDICTION                                PAGEi


                                APPENDIX "A"
   4. the University of Texas Southwestern Medical Center's Plea to the Jurisdiction is
      DENIED.


SIGNED this   t .;t   th day of   II'\ h   ,A,,,,,    , 2015.
                                     \

                                                     JUDGE PRESID~




ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS AND RELATED DEFENSE MOTIONS AND
DEFENDANT'S PLEA TO THE JURISDICTION                                PAGE2
APPENDIX “B”
V.T.C.A., Civil Practice & Remedies Code § 51.014                                                                 Page 1




                                            Effective: September 1, 2011

Vernon's Texas Statutes and Codes Annotated Currentness
 Civil Practice and Remedies Code (Refs & Annos)
    Title 2. Trial, Judgment, and Appeal
      Subtitle D. Appeals
            Chapter 51. Appeals
              Subchapter B. Appeals from County or District Court
                    § 51.014. Appeal from Interlocutory Order

(a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that:

  (1) appoints a receiver or trustee;

  (2) overrules a motion to vacate an order that appoints a receiver or trustee;

  (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure;

  (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as
  provided by Chapter 65;

  (5) 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;

  (6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a
  member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is
  published by the electronic or print media, arising under the free speech or free press clause of the First Amendment
  to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73;

  (7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil Procedure, except
  in a suit brought under the Family Code;

  (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001;

  (9) denies all or part of the relief sought by a motion under Section 74. 351(b), except that an appeal may not be
  taken from an order granting an extension under Section 74.351;

  (10) grants relief sought by a motion under Section 74.351(l); or

  (11) denies a motion to dismiss filed under Section 90.007.

(b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), stays the com-


                                        APPENDIX "B"
                            © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 51.014                                                                     Page 2




mencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under Subsection
(a)(3), (5), or (8) also stays all other proceedings in the trial court pending resolution of that appeal.

(c) A denial of a motion for summary judgment, special appearance, or plea to the jurisdiction described by Subsection
(a)(5), (7), or (8) is not subject to the automatic stay under Subsection (b) unless the motion, special appearance, or
plea to the jurisdiction is filed and requested for submission or hearing before the trial court not later than the later of:

  (1) a date set by the trial court in a scheduling order entered under the Texas Rules of Civil Procedure; or

  (2) the 180th day after the date the defendant files:

    (A) the original answer;

    (B) the first other responsive pleading to the plaintiff's petition; or

    (C) if the plaintiff files an amended pleading that alleges a new cause of action against the defendant and the
    defendant is able to raise a defense to the new cause of action under Subsection (a)(5), (7), or (8), the responsive
    pleading that raises that defense.

(d) On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal
from an order that is not otherwise appealable if:

  (1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for
  difference of opinion; and

  (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

(d-1) Subsection (d) does not apply to an action brought under the Family Code.

(e) An appeal under Subsection (d) does not stay proceedings in the trial court unless:

  (1) the parties agree to a stay; or

  (2) the trial or appellate court orders a stay of the proceedings pending appeal.

(f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th
day after the date the trial court signs the order to be appealed, files in the court of appeals having appellate jurisdiction
over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If
the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate
Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts
the time applicable to filing the notice of appeal.

CREDIT(S)

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.10, eff. Sept. 1,
1987; Acts 1989, 71st Leg., ch. 915, § 1, eff. June 14, 1989; Acts 1993, 73rd Leg., ch. 855, § 1, eff. Sept. 1, 1993; Acts
1997, 75th Leg., ch. 1296, § 1, eff. June 20, 1997; Acts 2001, 77th Leg., ch. 1389, § 1, eff. Sept. 1, 2001; Acts 2003,
78th Leg., ch. 204, § 1.03, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 97, § 5, eff. Sept. 1, 2005; Acts 2005, 79th Leg.,
ch. 1051, §§ 1, 2, eff. June 18, 2005; Acts 2011, 82nd Leg., ch. 203 (H.B. 274), § 3.01, eff. Sept. 1, 2011.




                             © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 51.014                                                      Page 3




Current through the end of the 2011 Regular Session and First Called Session of the 82nd Legislature

(c) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                          © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX “C”
V.T.C.A., Civil Practice & Remedies Code § 101.001                                                                Page 1




                                         Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Civil Practice and Remedies Code (Refs & Annos)
    Title 5. Governmental Liability
         Chapter 101. Tort Claims (Refs & Annos)
            Subchapter A. General Provisions
              § 101.001. Definitions

In this chapter:

  (1) “Emergency service organization” means a volunteer fire department, rescue squad, or an emergency medical
  services provider that is:

    (A) operated by its members; and

    (B) exempt from state taxes by being listed as an exempt organization under Section 151.310 or 171.083, Tax
    Code.

  (2) “Employee” means a person, including an officer or agent, who is in the paid service of a governmental unit
  by competent authority, but does not include an independent contractor, an agent or employee of an independent
  contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right
  to control.

  (3) “Governmental unit” means:

    (A) this state and all the several agencies of government that collectively constitute the government of this state,
    including other agencies bearing different designations, and all departments, bureaus, boards, commissions, of-
    fices, agencies, councils, and courts;

    (B) a political subdivision of this state, including any city, county, school district, junior college district, levee
    improvement district, drainage district, irrigation district, water improvement district, water control and im-
    provement district, water control and preservation district, freshwater supply district, navigation district, con-
    servation and reclamation district, soil conservation district, communication district, public health district, and
    river authority;

    (C) an emergency service organization; and

    (D) any other institution, agency, or organ of government the status and authority of which are derived from the
    Constitution of Texas or from laws passed by the legislature under the constitution.

  (4) “Motor-driven equipment” does not include:



                                               APPENDIX "C"

                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Civil Practice & Remedies Code § 101.001                                                            Page 2




    (A) equipment used in connection with the operation of floodgates or water release equipment by river authori-
    ties created under the laws of this state; or

    (B) medical equipment, such as iron lungs, located in hospitals.

  (5) “Scope of employment” means the performance for a governmental unit of the duties of an employee's office
  or employment and includes being in or about the performance of a task lawfully assigned to an employee by
  competent authority.

  (6) “State government” means an agency, board, commission, department, or office, other than a district or au-
  thority created under Article XVI, Section 59, of the Texas Constitution, that:

    (A) was created by the constitution or a statute of this state; and

    (B) has statewide jurisdiction.

CREDIT(S)

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 693, § 1, eff. June 19,
1987; Acts 1991, 72nd Leg., ch. 476, § 1, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 827, § 1, eff. Aug. 28, 1995;
Acts 1997, 75th Leg., ch. 968, § 1, eff. Sept. 1, 1997.

Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX “D”
§ 65.02. Organization, TX EDUC § 65.02




                                            V.T.C.A., Education Code § 65.02

                                                   § 65.02. Organization

                                               Effective: September 1, 2013
                                                          Currentness




(a) The University of Texas System is composed of the following institutions and entities:



  (1) The University of Texas at Arlington, including:



     (A) The University of Texas Institute of Urban Studies at Arlington; and



     (B) The University of Texas School of Nursing at Arlington;



  (2) The University of Texas at Austin, including:



     (A) The University of Texas Marine Science Institute;



     (B) The University of Texas McDonald Observatory at Mount Locke; and



     (C) The University of Texas School of Nursing at Austin;



  (3) The University of Texas at Dallas;



  (4) The University of Texas at El Paso, including The University of Texas School of Nursing at El Paso;



  (5) The University of Texas of the Permian Basin;



  (6) The University of Texas at San Antonio, including the University of Texas Institute of Texan Cultures at San Antonio;

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       1

                                                      APPENDIX "D"
§ 65.02. Organization, TX EDUC § 65.02




  (7) The University of Texas Southwestern Medical Center, including:



    (A) The University of Texas Southwestern Medical School at Dallas;



    (B) The University of Texas Southwestern Graduate School of Biomedical Sciences at Dallas; and



    (C) The University of Texas Southwestern Allied Health Sciences School at Dallas;



  (8) The University of Texas Medical Branch at Galveston, including:



    (A) The University of Texas Medical School at Galveston;



    (B) The University of Texas Graduate School of Biomedical Sciences at Galveston;



    (C) The University of Texas School of Allied Health Sciences at Galveston;



    (D) The University of Texas Marine Biomedical Institute at Galveston;



    (E) The University of Texas Hospitals at Galveston; and



    (F) The University of Texas School of Nursing at Galveston;



  (9) The University of Texas Health Science Center at Houston, including:



    (A) The University of Texas Medical School at Houston;



    (B) The University of Texas Dental Branch at Houston;


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                    2
§ 65.02. Organization, TX EDUC § 65.02




    (C) The University of Texas Graduate School of Biomedical Sciences at Houston;



    (D) The University of Texas School of Health Information Sciences at Houston;



    (E) The University of Texas School of Public Health at Houston;



    (F) The University of Texas Speech and Hearing Institute at Houston; and



    (G) The University of Texas School of Nursing at Houston;



  (10) The University of Texas Health Science Center at San Antonio, including:



    (A) The University of Texas Medical School at San Antonio;



    (B) The University of Texas Dental School at San Antonio;



    (C) The University of Texas Graduate School of Biomedical Sciences at San Antonio;



    (D) The University of Texas School of Allied Health Sciences at San Antonio; and



    (E) The University of Texas School of Nursing at San Antonio;



  (11) The University of Texas M. D. Anderson Cancer Center, including:



    (A) The University of Texas M. D. Anderson Hospital;



    (B) The University of Texas M. D. Anderson Tumor Institute; and


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.        3
§ 65.02. Organization, TX EDUC § 65.02




      (C) The University of Texas M. D. Anderson Science Park; and



    (12) The University of Texas Health Science Center--South Texas, including The University of Texas Medical
    School--South Texas, if established under Subchapter N1, Chapter 74.



(b) The University of Texas System shall also be composed of such other institutions and entities as from time to time may be
assigned by specific legislative act to the governance, control, jurisdiction, or management of The University of Texas
System.



Credits

Added by Acts 1973, 63rd Leg., p. 1186, ch. 435, § 1, eff. Aug. 27, 1973. Amended by Acts 1989, 71st Leg., ch. 644, § 2,
eff. June 14, 1989; Acts 2001, 77th Leg., ch. 325, § 1, eff. Sept. 1, 2001; Acts 2009, 81st Leg., ch. 1341, § 5, eff. June 19,
2009; Acts 2013, 83rd Leg., ch. 179 (H.B. 1844), § 9, eff. Sept. 1, 2013.


Notes of Decisions (6)


Footnotes
1
        V.T.C.A., Education Code § 74.751 et seq.


V. T. C. A., Education Code § 65.02, TX EDUC § 65.02
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
APPENDIX “E”
§ 74.101. Component Institution, TX EDUC § 74.101




                                           V.T.C.A., Education Code § 74.101

                                            § 74.101. Component Institution

                                              Effective: September 1, 2013
                                                          Currentness




The University of Texas Southwestern Medical Center is a component institution of The University of Texas System under
the management and control of the board of regents of The University of Texas System.



Credits

Acts 1971, 62nd Leg., p. 3182, ch. 1024, art. 1, § 1, eff. Sept. 1, 1971. Amended by Acts 1989, 71st Leg., ch. 644, § 9, eff.
June 14, 1989; Acts 2013, 83rd Leg., ch. 179 (H.B. 1844), § 11, eff. Sept. 1, 2013.



V. T. C. A., Education Code § 74.101, TX EDUC § 74.101
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                APPENDIX "E"
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
APPENDIX “F”
§ 101.101. Notice, TX CIV PRAC & REM § 101.101




                                    V.T.C.A., Civil Practice & Remedies Code § 101.101

                                                          § 101.101. Notice

                                                              Currentness




(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the
day that the incident giving rise to the claim occurred. The notice must reasonably describe:



  (1) the damage or injury claimed;



  (2) the time and place of the incident; and



  (3) the incident.



(b) A city’s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and
approved.



(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental
unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has
been damaged.



Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.


Notes of Decisions (301)




V. T. C. A., Civil Practice & Remedies Code § 101.101, TX CIV PRAC & REM § 101.101
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document                                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                   APPENDIX "F"
                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
APPENDIX “G”
V.T.C.A., Government Code § 311.034                                                                            Page 1




                                           Effective: September 1, 2005

Vernon's Texas Statutes and Codes Annotated Currentness
 Government Code (Refs & Annos)
    Title 3. Legislative Branch (Refs & Annos)
      Subtitle B. Legislation
            Chapter 311. Code Construction Act (Refs & Annos)
              Subchapter C. Construction of Statutes (Refs & Annos)
                   § 311.034. Waiver of Sovereign Immunity

In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a
statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambig-
uous language. In a statute, the use of “person,” as defined by Section 311.005 to include governmental entities,
does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other
reasonable construction. Statutory prerequisites to a suit, including the provision of notice, are jurisdictional re-
quirements in all suits against a governmental entity.

CREDIT(S)

Added by Acts 2001, 77th Leg., ch. 1158, § 8, eff. June 15, 2001. Amended by Acts 2005, 79th Leg., ch. 1150, § 1,
eff. Sept. 1, 2005.

Current through the end of the 2011 Regular Session and First Called Session of the 82nd Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                                                      APPENDIX "G"
                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX “H”
V.T.C.A., Civil Practice & Remedies Code § 101.021                                                           Page 1




                                          Effective:[See Text Amendments]

Vernon's Texas Statutes and Codes Annotated Currentness
 Civil Practice and Remedies Code (Refs & Annos)
    Title 5. Governmental Liability
         Chapter 101. Tort Claims (Refs & Annos)
            Subchapter B. Tort Liability of Governmental Units (Refs & Annos)
              § 101.021. Governmental Liability

A governmental unit in the state is liable for:

  (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negli-
  gence of an employee acting within his scope of employment if:

    (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or
    motor-driven equipment; and

    (B) the employee would be personally liable to the claimant according to Texas law; and

  (2) personal injury and death so caused by a condition or use of tangible personal or real property if the govern-
  mental unit would, were it a private person, be liable to the claimant according to Texas law.

CREDIT(S)

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                                                  APPENDIX "H"
                            © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX “I”
V.T.C.A., Civil Practice & Remedies Code § 101.022                                                              Page 1




                                              Effective: June 14, 2005

Vernon's Texas Statutes and Codes Annotated Currentness
 Civil Practice and Remedies Code (Refs & Annos)
    Title 5. Governmental Liability
         Chapter 101. Tort Claims (Refs & Annos)
            Subchapter B. Tort Liability of Governmental Units (Refs & Annos)
              § 101.022. Duty Owed: Premise and Special Defects

(a) Except as provided in Subsection (c), if a claim arises from a premise defect, the governmental unit owes to the
claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the
use of the premises.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or
obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic
signs, signals, or warning devices as is required by Section 101.060.

(c) If a claim arises from a premise defect on a toll highway, road, or street, the governmental unit owes to the
claimant only the duty that a private person owes to a licensee on private property.

CREDIT(S)

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2005, 79th Leg., ch. 281, § 2.88, eff. June
14, 2005.

Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature

(c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT




                                                    APPENDIX "I"
                           © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
