      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00162-CV



                                       Luke Axtell, Appellant

                                                   v.

                           The University of Texas at Austin, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
       NO. 99-00308, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING




                Appellant Luke Axtell sued the University of Texas at Austin (the University) and the

University men’s athletic director DeLoss Dodds and former head men’s basketball coach Thomas

Penders for negligence and for statutory violations pursuant to the Family Educational Rights and

Privacy Act. Axtell contended that his educational records were faxed from a machine in the men’s

basketball office to a local radio station, which then broadcast the information. On appeal, Axtell

argues that the trial court erred in granting the University’s plea to the jurisdiction because his cause

of action is permitted by the limited waiver of governmental immunity for injuries caused by tangible

personal property under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §

101.021(2) (West 1997). We hold that the tangible personal property exception of the Act does not

encompass an injury resulting from the disclosure of confidential information, however that

information is transmitted.
                                    FACTUAL BACKGROUND

                Axtell was a freshman basketball player at the University during the 1997-98 academic

year until he was suspended for academic deficiencies on March 17, 1998. The Austin American

Statesman reported the suspension of Axtell and others and also related that several players were

disgruntled with Coach Penders. On March 18, a fax message containing a portion of Axtell’s

educational records was sent from the men’s basketball office to two local radio stations, KVET and

KJFK. KVET subsequently broadcast the information.

                Axtell sued the University, Dodds, and Penders for negligence under the Texas Tort

Claims Act and for statutory violations under the federal Family Educational Rights and Privacy Act

(FERPA). See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 1997); 20 U.S.C. § 1232g

(2000). The University moved to dismiss Axtell’s suit against it on the ground that the trial court

lacked subject matter jurisdiction because the University had not waived its governmental immunity.

The trial court granted the University’s motion and dismissed Axtell’s suit against it.


                                     STANDARD OF REVIEW

                Subject-matter jurisdiction is essential to the authority of a court to decide a case.

Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.—Austin 2000, no pet.) (citing Texas Ass’n

of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). “A plea to the jurisdiction

challenges the trial court’s authority to determine the subject matter of a specific cause of action.”

Caldwell, 23 S.W.3d at 135 (citing Texas State Employees Union/CWA Local 6184 v. Texas

Workforce Comm’n, 16 S.W.3d 61, 65 (Tex. App.—Austin 2000, no pet.)). In order to prevail, the

party asserting the plea to the jurisdiction must show that even if all the allegations in the plaintiff’s

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pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the

pleadings, rendering it impossible for the plaintiff’s petition to confer jurisdiction on the trial court.

Id. Because subject-matter jurisdiction presents a question of law, we review the district court’s

decision de novo. Id.

                The supreme court has recently discussed pleas to the jurisdiction in the context of the

Tort Claims Act. See Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001). The

court found that because the Act defines a narrow set of circumstances in which a government entity

waives sovereign immunity, an appellate court must first determine the scope of the waiver granted

by the terms of the Act, and second examine the specific facts of the case to determine if they fall

within the Act’s scope. Id. at 587 (citing Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.

1996), for the first step)). In reviewing a plea to the jurisdiction, we take the factual allegations of

the plaintiff’s petition as true. Brannon v. Pacific Employers Ins. Co., 224 S.W.2d 466, 469 (Tex.

1949).


                                            DISCUSSION

                The Tort Claims Act provides a limited waiver of sovereign immunity when personal

injury is “caused by a condition or use of tangible personal or real property if the governmental unit

would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac.

& Rem. Code Ann. § 101.021(2) (West 1997). This waiver is to be liberally construed in order to

effectuate the purposes of the Act. Michael v. Travis County Hous. Auth., 995 S.W.2d 909, 912

(Tex. App.—Austin 1999, no pet.). The supreme court has cautioned, however, against an expansive

reading of the waiver that would cause the exception to lose its limited character: “[T]he waiver of

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immunity in the Tort Claims Act is not, and was not intended to be complete. Arguments for

applications of the Act that would essentially result in its waiver becoming absolute must therefore

be rejected as contrary to the Act’s fundamental purpose.” Dallas County Mental Health and Mental

Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex. 1998).

                 In his second issue on appeal, Axtell concedes that he cannot maintain a cause of

action under FERPA against the University, so we need not address that issue.

                 In his first issue, Axtell maintains that the University used tangible personal property,

a fax machine in the men’s basketball office, to send his confidential educational records to KVET,

and that this use of the fax machine caused his injuries. Therefore, according to Axtell, the University

has waived its immunity from suit and is subject to liability under the Tort Claims Act. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.021(2) (making government entity liable for injuries caused by

tangible property to the same extent as a private property owner); see also Miller, 51 S.W.3d at 587

(stating that although section 101.021(2) speaks to liability only, the Act waives immunity both from

suit and liability).

                 The University maintains that Axtell has not pleaded facts that establish the

applicability of the tangible personal property exception in the Act. Both parties agree that a fax

machine is tangible property; the University contends, however, that the cause of Axtell’s alleged

injuries was not the use of the fax machine, but rather the disclosure of confidential information. See

University of Tex. Med. Branch v. York, 871 S.W.2d 175, 179 (Tex. 1994) (holding that

“information, which may or may not be recorded . . . does not constitute tangible personal property

under section 101.021(2) of the Texas Tort Claims Act and that the State has not waived


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governmental immunity for negligence involving the use, misuse, or nonuse of information”); see also

Dear v. City of Irving, 902 S.W.2d 731, 737 (Tex. App.—Austin 1995, writ denied) (relying on York

to hold that the tangible personal property exception does not permit a cause of action alleging misuse

of information).

               Axtell relies on Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 33 (Tex. 1983),

which held that by improperly reading and interpreting the graphs produced by electrocardiographic

equipment, hospital staff misused tangible personal property sufficiently to waive the hospital’s

immunity under the Act. While the supreme court has not overruled Salcedo, it has in a subsequent

decision expressly limited the decision to its facts. See Bossley, 968 S.W.2d at 342 (citing York, 871

S.W.2d at 178). In addition, the cases applying the York decision have provided guidance for

determining when a case involves the use of information rather than the use of tangible property that

may transmit information. We will briefly survey Salcedo and the subsequent cases addressing the

tangible personal property exception in the Tort Claims Act to explain why Axtell’s reliance on

Salcedo is misplaced.

               In Salcedo, a patient who had gone to a government hospital was sent home even

though his electrocardiogram charts showed a classic pattern for a heart attack. Salcedo, 659 S.W.2d

at 31. He died shortly after going home; an autopsy revealed that Mr. Salcedo’s death was the result

of myocardial infarction. Id. The plaintiff alleged that the hospital staff misused electrocardiographic

equipment by improperly reading and interpreting the graphs it produced. Id. The court found that

the plaintiff had stated a cause of action under the Tort Claims Act, explaining that “[r]eading and

interpreting are purposes for which an electrocardiogram graph is used or employed in diagnosing


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myocardial infarction.” Id. at 33. When the charts were misread and the diagnosis missed, the

equipment was misused, and thus the plaintiff was able to state a cause of action in which misuse of

tangible personal property caused the alleged injuries. See id. Axtell argues that by using a fax

machine to transmit his confidential educational information, the University used tangible personal

property in a manner that caused his injury, much as the hospital staff used electrocardiograms in

Salcedo.1

               Initially, we note the questionable viability of Salcedo. The last time it was relied on

by the supreme court was nine years ago in the plurality opinion of Texas Department of Mental

Health and Mental Retardation v. Petty, 848 S.W.2d 680, 684 (Tex. 1992). Four members of the

court found that paper medical records consisting of test results, evaluations, and medical records,

which were misinterpreted over the years to improperly institutionalize a woman for most of her adult

life, were sufficiently similar to the electrocardiogram misinterpreted in Salcedo. Id. at 683. The

plurality found that Ms. Petty had stated a cause of action under the Act because the medical

documents were intended to be used for purposes of diagnosis, as were the graphs in Salcedo, hence

there was a sufficient nexus between her injury and tangible property to waive the Department’s

immunity. Id. Four judges of the court dissented, warning that the plurality’s opinion, like Salcedo,

virtually eliminated the requirement of causation between the injury and the use of tangible property.

Id. at 688 (Cornyn, J., dissenting). The dissenting judges expressed their fear that immunity could


       1
           Axtell additionally relies on Texas Department of Corrections v. Winters, 765 S.W.2d 531
(Tex. App.—Beaumont 1989, writ denied). The Winters decision, following Salcedo, held that the
use of telegraph and telephone equipment to transmit an erroneous message that a family member had
died constituted misuse of tangible personal property, thereby subjecting the Department to liability.
Id. at 532.

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be waived in any case in which the plaintiff was able to identify the existence of a physical object, no

matter how remotely related to the harm. See id. (Cornyn, J., dissenting). The ninth justice joined

the plurality’s result in Petty but not its rationale, leaving the decision with little or no precedential

value. See id. at 685 (Cook, J., concurring in judgment only); see also York, 871 S.W.2d at 176

(recognizing Petty’s limited precedential value).

                In York, the court embraced the concerns voiced by the dissenters in Petty. See York,

871 S.W.2d at 179. Mr. York alleged that the staff at a university hospital had failed to diagnose his

son’s broken hip, thus causing him to suffer injury. Id. at 176. Analogizing to the facts in Salcedo,

the plaintiff argued that his son’s injuries were caused by the misuse of tangible property in that the

staff’s failure both to include pertinent information in his son’s medical records and to implement

recommendations contained in the records prevented a timely diagnosis of the injury. Id. The court

disagreed, refusing to extend the holding in Salcedo to these facts. Id. at 178.

                The York court emphasized the unique use of property in Salcedo that was found to

have satisfied the waiver in section 101.021(2): the plaintiff alleged that a misuse of the

electrocardiographic equipment caused the misdiagnosis that led to Mr. Salcedo’s death. Id. at 178.

In contrast, the court explained, Mr. York had not alleged a misuse of any hospital device or

equipment, but rather had alleged that the staff misused or ignored information that was contained

in his son’s medical charts. Id. at 178-79. The court announced, “Salcedo does not permit claims

against the State for misuse of information.” Id. at 179. The mere fact that the information was put

into writing did not transform Mr. York’s claim into a misuse of tangible property. Id. at 178-79.

The son’s injury was caused by a misuse of information; thus immunity had not been waived.


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                Axtell’s claim more closely resembles the claim in York than the claim in Salcedo. His

injury was caused by the disclosed information, not by any misuse of the fax machine that transmitted

his grades to the media. In Salcedo, a close connection existed between the misuse of the equipment

and the harm suffered: the purpose of the electrocardiographic equipment was to assist doctors in

making a proper medical diagnosis. See Salcedo, 659 S.W.2d at 33; see also Texas Youth Comm’n

v. Ryan, 889 S.W.2d 340, 344 (Tex. App.—Houston [14th Dist.] 1994, no writ) (stating that the

electrocardiogram machine in Salcedo directly impacted the person whose heart condition was being

traced). The fax machine was not a device that aided any individual at the University in the decision

to release or communicate Axtell’s confidential information. As a physical object that simply

facilitates the communication of information, the fax machine did not cause Axtell’s harm; it was

never intended to assist the user in deciding on a course of action.

                In other words, the negligence alleged by Axtell was not in the manner of the

University’s release of the records but in the fact of its release of the records. The fax machine did

not create information as did the equipment in Salcedo; it merely transmitted it. Axtell would have

suffered the same injury had the confidential information been conveyed to the station manager by

telephone, by mail, or by hand delivery. Therefore, the causal connection between the misuse of

tangible property and the injury suffered in Salcedo is lacking in the instant case. As York dictates,

to establish that immunity has been waived, a plaintiff must allege a cause of action in which the

tangible property is the instrumentality of the harm. In the present case, the real substance of Axtell’s

complaint is that the men’s athletic department released academic information that it was under a

legal obligation to keep confidential. Information is not transformed into tangible property when it


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is communicated by a fax machine, a telephone, a telegram, or a computer. See Sawyer v. Texas

Dep’t of Criminal Justice, 983 S.W.2d 310, 312 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)

(the medium used to communicate information does not alter its intangible nature). The use of the

fax machine did not cause Axtell’s injury.

               Appellant concedes that the machine did not directly cause injury to Axtell but

suggests that the property “does not have to be the instrumentality of the harm.” Axtell cites as

support for this proposition the supreme court’s decision in Bossley, but the holding in Bossley runs

directly counter to Axtell’s suggestion. In that case, the supreme court emphasized the importance

of a causal nexus between the tangible property used and the injury suffered. The plaintiffs

complained that the facility’s failure to keep its doors locked enabled their son to escape and

ultimately led to his death. See Bossley, 968 S.W.2d at 340-41. The lower court had relied on

Salcedo to hold that the involvement of tangible property in the circumstances that led to the young

man’s death was sufficient to waive the facility’s immunity. See id. at 341. The court reversed the

lower court’s judgment, finding the unlocked doors were too attenuated from the eventual

circumstance of the boy’s death, which occurred after he escaped into the community and jumped in

front of a truck. Id. at 342-43. “The requirement of causation is more than mere involvement,

although exactly how much more has been difficult for courts to define. If only involvement were

required, the waiver of immunity would be virtually unlimited, since few injuries do not somehow

involve tangible personal or real property.” Id. at 343. The court emphasized that the injury must

be proximately caused by the use of tangible property, see id. at 342, explaining that “[p]roperty does




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not cause injury if it does no more than furnish the condition that makes the injury possible.” Id. at

343.

               The supreme court has made it clear that the state does not waive its immunity by

using or misusing information. See York, 871 S.W.2d at 179. Intermediate appellate courts have

followed York’s holding. See, e.g., Sawyer, 983 S.W.2d at 312 (the source of the alleged injuries was

not the computer printout used to communicate an erroneous parole review date to a prisoner, but

rather the information conveyed); Martinez v. City of Abilene, 963 S.W.2d 559, 560 (Tex.

App.—Eastland 1998, no pet.) (the City’s failure to properly record data did not state a claim for

misuse of the computer but rather one for misuse of information); Dear, 902 S.W.2d at 737 (alleged

injuries were not caused by the computers, telephones, or records used in the city’s investigation but

by information). “Information or misinformation remains information, whether it is transmitted by

electronic equipment or by word of mouth. The medium used to communicate information does not

alter its intangible nature.” Sawyer, 983 S.W.2d at 312 (emphasis in original). We decline to extend

Salcedo to these facts and overrule Axtell’s issue.


                                          CONCLUSION

               While Salcedo has not been overruled, recent supreme court and intermediate

appellate court cases have helped to distinguish cases where the cause of the injury is the use or

misuse of information. The real substance of Axtell’s complaint is that he was harmed by the

disclosure of confidential information. We hold that his claim does not state a cause of action under




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section 101.021(2) of the Tort Claims Act and affirm the trial court’s grant of the University’s plea

to the jurisdiction.




                                              Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: January 17, 2002

Publish




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