









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-07-00074-CV

______________________________



LESLEE LANPHIER, R.N., AND

REBECCA FRANCIS, R.N., Appellants


V.


TANIA AVIS, A/K/A TANIA GREER, Appellee





On Appeal from the 5th Judicial District Court

Cass County, Texas

Trial Court No. 06-C-594







Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Moseley


O P I N I O N

	Nurses Leslee Lanphier, R.N., and Rebecca Francis, R.N., appeal from the trial court's denial
of their motion to dismiss Tania Avis's (a/k/a Tania Greer) claims against them.  The nurses rely on
Section 101.106(f) of the Texas Civil Practice and Remedies Code in maintaining that the trial court
should have dismissed Avis's claims since those claims could have been brought against the nurses'
employer, a governmental entity.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon
2005).  We disagree with their position and affirm the trial court's order denying the nurses' motion
to dismiss.
I.	JURISDICTION
	As a preliminary consideration, we note that the parties have raised the issue of this Court's
subject-matter jurisdiction to review this interlocutory order.  We also note an express disagreement
exists among intermediate courts of appeals pertaining to the issue of whether this Court would
possess the jurisdiction to review this order.  The courts concluding that jurisdiction exists look to
Section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, which provides that "[a] person
may appeal from an interlocutory order of a district court, county court at law, or county court that
. . . denies a motion for summary judgment that is based on an assertion of immunity by an
individual who is an officer or employee of the state or a political subdivision of the state."  Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2007).  The concern surrounding the
application of Section 51.014(a)(5) to the instant case is the obvious distinction between the
procedural vehicles involved; this appeal does not come to us as an appeal from the denial of a
motion for summary judgment, but as an appeal from an order denying a motion to dismiss. (1)
	The Houston-Fourteenth court addressed this issue and concluded that Section 51.014(a)(5)
is not limited to cases involving only one specific procedural vehicle.  See Phillips, 187 S.W.3d at
674.  In arriving at this conclusion, Phillips relied on Texas Department of Criminal Justice v.
Simons, 140 S.W.3d 338 (Tex. 2004).  Simons construed a different subsection of Section 51.014(a),
i.e., subsection (a)(8), which provided for interlocutory appeals in which a governmental unit's plea
to the jurisdiction was denied.  Id. at 349.
	The Simons court concluded that Section 51.014(a)(8) was not limited to the review of cases
in which the trial court denied a claim of sovereign immunity through one particular procedural
vehicle.  In doing so, it stated that, "[A]n interlocutory appeal may be taken from a refusal to dismiss
for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction
or some other vehicle, such as a motion for summary judgment."  Id.  Rather, Simons directed courts
to look to the substance of the argument rather than the title of the procedural vehicle in a "substance
over form" kind of reasoning.  Id. Phillips pointed out the obvious distinctions between subsections
(a)(5) and (a)(8), but noted that the fundamental issue was the same:  essentially, whether jurisdiction
over an interlocutory appeal was affected by the type of vehicle used to assert immunity.  Simons
appears to answer that question in the negative.
	This position is reflected elsewhere as well.  The Texas Supreme Court interpreted Section
51.014 as granting jurisdiction for the appeal irrespective of the procedural vehicle employed in
asserting a claim of immunity:  "If the trial court denies the governmental entity's claim of no
jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary
judgment, or otherwise, the Legislature has provided that an interlocutory appeal may be brought." 
Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).  Sister courts have expressly agreed with
Phillips.  See Kanlic v. Meyer, 230 S.W.3d 889 (Tex. App.--El Paso 2007, pet. filed); Tex. Dep't
of Agric. v. Calderon, 221 S.W.3d 918 (Tex. App.--Corpus Christi 2007, no pet.); Walkup v.
Borchardt, No. 07-06-0040-CV, 2006 Tex. App. LEXIS 10333, at *1 n.1 (Tex. App.--Amarillo
Nov. 30, 2006, no pet.) (mem. op.).
	The Dallas court, however, has recently taken the opposite stance on this jurisdictional issue. 
See Hudak v. Campbell, 232 S.W.3d 930, 931 (Tex. App.--Dallas 2007, no pet.).  First, the Hudak
court correctly noted that Section 51.014(a), while granting limited jurisdiction to review
interlocutory orders, should be strictly construed.  The court then focused on the fact that the
appellant sought review of a denial of a motion for summary judgment as specified in Section
51.014(a)(5).  See id.  In determining that the Phillips decision represented "an inappropriate
extension" of the appellate court's statutory jurisdiction, the Dallas court emphasized that it looked
beyond the simple title of the motion at issue in that case and examined "the nature of the motion,"
explaining that the motion at issue did not comply with the strict procedural safeguards associated
with a motion for summary judgment.  See id. 
	We are more persuaded by the reasoning in Phillips and the Texas Supreme Court's position
in Simons and Sykes.  The substance of the nurses' argument is based on an assertion of immunity
by individual employees of a governmental unit, precisely the substance at which Section
51.014(a)(5) aims.  The fact that the nurses followed the directive of the applicable provision of the
statute (as it is worded) by asserting that claim in the form of a motion to dismiss should not preclude
review of their claim of immunity.  We conclude that we have jurisdiction to consider the nurses'
interlocutory appeal pursuant to Section 51.014(a)(5).
II.	FACTUAL AND PROCEDURAL HISTORY
	A.	Identification of Parties
	Lanphier and Francis were nurses at Atlanta Memorial Hospital (AMH), a governmental
entity.  Avis was an expectant mother in September 2004.  When, at full term, she began
experiencing labor pains accompanied by a high fever and nausea, she sought treatment at AMH,
was admitted to the labor and delivery department, and was administered antibiotics.  The AMH staff
ceased hearing fetal heart tones after five to six hours of labor.  A sonogram and, according to
medical records, a scalp electrode also failed to find any signs of fetal cardiac activity. (2)
Approximately eight hours after Avis arrived at the hospital, a stillborn fetus was delivered by
cesarean section. 
	B.	Claims Against the Nurses
	Avis filed suit against several parties on September 15, 2006, alleging healthcare liability
claims pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code.  Her petition set forth
the following facts:
		Tania Greer was a 27 year old lady without any living children when she
found out she was pregnant.  She received her prenatal care at Ellington Memorial
Clinic.  On September 15, 2004, she was admitted to Atlanta Memorial Hospital
because she was in labor and was leaking amniotic fluid.  She was approximately 40
weeks gestation.  She had vomited at home and had a fever of 100.6.  Her fever went
up to 103.7.  Her physicians (Dr. Matthew Hogan and Dr. Richard Hozdic, II, M.D.)
and nurses (Leslee Lanphier, R.N. and Rebecca Francis, R.N.) allowed her labor to
proceed over the next eight (8) hours even though her fetal monitor strip showed that
her baby was in distress.  They never inserted a fetal scalp electrode.  At
approximately 8:50 a.m., the nurses were unable to locate fetal heart tones.  A
cesarean section surgery was performed by Dr. Hogan and Dr. Hozdic, and Tania
Avis was informed that her baby was dead.  A timely delivery would have allowed
Tania Greer's baby to survive.

In pertinent part, Avis sued Lanphier and Francis for damages based on alleged negligence and
failure to properly carry out their nursing responsibilities.  Specifically, Avis alleged: 
		By reason of the facts set forth above, Defendant LANPHIER was negligent
in failing to properly carry out her nursing responsibilities to Plaintiff and/or her baby
in accordance with accepted standards of medical and/or nursing practice, thereby
proximately causing injuries and damages to Plaintiff.  Defendant LANPHIER'S
negligence was solely due to her failure to act.
		. . . .
		By reason of the facts set forth above, Defendant FRANCIS was negligent in
failing to properly carry out her nursing responsibilities to Plaintiff and/or her baby
in accordance with accepted standards of medical and/or nursing practice, thereby
proximately causing injuries and damages to Plaintiff.  Defendant FRANCIS'
negligence was solely due to her failure to act.

The nature of the claims against Lanphier and Francis is important because it will become central
to the question whether Avis could have brought those claims against AMH. 
	C.	Denial of Motion to Dismiss Pursuant to Section 101.106(f)
	On December 27, 2006, Lanphier and Francis filed their motion to dismiss based on Section
101.106(f).  Avis responded to that motion on February 21, 2007.  The trial court heard the motion
on February 22, 2007.  On May 18, 2007, the trial court signed its order denying the nurses' motion
to dismiss; in the very comprehensive order, the trial court concluded that Avis had failed to allege
facts which would invoke the waiver of AMH's sovereign immunity.  Appealing that order, the
nurses maintain that they are entitled to dismissal pursuant to Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(f).
III.	APPLICABLE LAW
 A.	Section 101.106(f)
	The section on which Lanphier and Francis rely in their position provides as follows:
	If a suit is filed against an employee of a governmental unit based on conduct within
the general scope of that employee's employment and if it could have been brought
under this chapter against the governmental unit, the suit is considered to be against
the employee in the employee's official capacity only.  On the employee's motion, the
suit against the employee shall be dismissed unless the plaintiff files amended
pleadings dismissing the employee and naming the governmental unit as defendant
on or before the 30th day after the date the motion is filed.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).  To be entitled to dismissal under Section
101.106(f), a defendant must show that the plaintiff's suit both (1) was based on conduct within the
general scope of the defendant's employment with a governmental unit and (2) could have been
brought under the Texas Tort Claims Act (TTCA) against that governmental unit. (3) See Williams v.
Nealon, 199 S.W.3d 462, 466 (Tex. App.--Houston [1st Dist.] 2006, pet. filed); Phillips, 187
S.W.3d at 675.  Here, we focus on the latter of the two requirements of Section 101.106(f):  whether
Avis could have brought this suit against AMH.  We must, therefore, examine the TTCA's
application to these facts to determine whether Avis could have brought her suit against the nurses'
employer, AMH.
	B.	Connection to Texas Tort Claims Act:  Section 101.021(2)
	Lanphier and Francis contend that Avis could have relied on Section 101.021 of the Texas
Civil Practice and Remedies Code to bring these claims against AMH.  They contend that Avis's
allegations go to the nurses' improper reading and interpretation of the instruments, and, in doing so,
allege misuse of tangible personal property, a misuse for which Avis could have sued AMH under
the TTCA.  Section 101.021 imposes liability against a governmental unit for personal injury or
death caused by a condition or use of tangible 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 (Vernon 2005).  To best determine what qualifies as condition or use of tangible
personal property, we have reviewed several cases that have examined Sections 101.021(2) and
101.106(f), observing that petitions seeking discretionary review of a number of those cases are
pending in the Texas Supreme Court.	
	C.	Determining Whether Injury Was Caused by Use of Tangible Property
	Many cases examining Section 101.106(f) rely on Phillips, in which a breast cancer patient
sued for breach of fiduciary duty, fraudulent concealment, and negligence.  187 S.W.3d at 672.  The
defendant physicians moved to dismiss pursuant to Section 101.106(f).  Id.  After concluding that
Section 51.014(a) permitted the court to exercise jurisdiction over the appeal, the Houston-Fourteenth court reviewed the trial court's denial of the physicians' motion to dismiss by determining
whether the plaintiff could have brought suit against University of Texas Medical Branch (UTMB)
pursuant to Section 101.021(2)'s waiver of immunity for injuries caused by use of tangible property. 
Id. at 676.
	The court concluded that the substance of the plaintiff's claims was the physicians' intentional
or negligent failure to communicate a diagnosis to her.  Id. at 676-77.  Relying on University of
Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 179 (Tex. 1994), and Salcedo v.
El Paso Hospital District, 659 S.W.2d 30, 33 (Tex. 1983), the court pointed out that information
about a medical condition is not considered tangible property.  Phillips, 187 S.W.3d at 677.  Since
the physicians failed to show that the plaintiff's suit could have been brought against the state
hospital, the trial court did not err by denying their motion to dismiss.  Id.
	In Williams, the Houston-First court reversed the trial court's order granting the physicians'
motion to dismiss, concluding that the physicians failed to show that the plaintiff could have brought
the suit against the physicians' employer, UTMB:
		In his petition, Williams alleges that "Defendants violated the duty owed to
Plaintiff to exercise the ordinary care and diligence exercised by other physicians
and/or health care providers in the same or similar circumstances in connection with
the subject treatment and was [sic] negligent."  Such a claim is, quite simply, a claim
of medical negligence and is not encompassed by the Texas Tort Claim Act's limited
waiver of sovereign immunity.

199 S.W.3d at 466 (emphasis added).  Since medical negligence was the basis of the claims against
the physicians, the plaintiff could not have brought the suit against UTMB under the TTCA.  Id.  In
support of its conclusion, the Houston-First court expressly aligned its position with that of the
Houston-Fourteenth court's position in Phillips.  Id. at 467.
	The facts in Franka v. Velasquez, 216 S.W.3d 409, 410-11 (Tex. App.--San Antonio 2006,
pet. filed), dealt with injuries sustained by an infant during a complicated delivery.  After having
reviewed the petition and the evidence presented, the San Antonio court affirmed the trial court's
denial of the physicians' motion to dismiss pursuant to Section 101.106(f).  Id. at 413.  The court
pointed to the expert report's note of specific departures from the standard of care in the following
respects:  (1) failure to recognize risks of disorder, (2) use of continuous traction after problems were
detected, (3) failure to use proper maneuvers, and (4) failure to provide the mother with sufficient
information regarding the risks in the use of a vacuum extractor.  Id. at 411-12.
	Although the physicians argued that the child's injuries were caused by use of tangible
personal property (i.e., the vacuum extractor), the court was unconvinced, due to the fact that the
vacuum extractor was not used after the head was delivered and all of the evidence showed that the
injuries to the child occurred after the head was delivered.  Id. at 411.  After the head was delivered
using the vacuum extractor and during the time at which the injuries were sustained, the physicians
used only their hands to deliver the infant.  Id.  Ultimately, the Franka court concluded that the
claims against the physicians were claims of medical negligence and, therefore, could not be brought
against the hospital under the TTCA; accordingly, the physicians were not entitled to dismissal under
Section 101.106(f).  Id. at 412.    
	In Clark v. Sell, 228 S.W.3d 873 (Tex. App.--Amarillo 2007, pet. filed), the plaintiff sought
damages on behalf of a patient who sustained injuries to his arm as he lay on that arm for a
prolonged, drug-induced sleep.  The plaintiff alleged that the injuries were caused because the three
nurses in question did not "arouse," "fully assess," or "periodically turn" the patient.  Id. at 875.  The
Amarillo court explained that the suit could not be brought under any available waiver provision of
the TTCA:
	In other words, they supposedly neglected to perform certain medical services, and
that neglect resulted in his injuries.  Given the nature of her allegations, we see no
nexus between the injuries in dispute and a premises defect, motor vehicle, or
condition or use of property . . . .

Id.  Important in the Clark opinion is the apparent absence of a nexus between the use of tangible
personal property and the injury which was sustained.  It is not sufficient that a vehicle, premises
defect, or piece of property simply be involved in some way; rather, one or another of these must be
a proximate cause of the underlying injury.  Id. at 874-75 (citing Dallas County Mental Health &
Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998), to support proposition that the
property must proximately cause the injury for immunity to be waived).  Since the nurses failed to
satisfy the requirements of Section 101.106(f), the court affirmed the trial court's denial of the nurses'
motion to dismiss.  Clark, 228 S.W.3d at 875.
	When the parents of a deceased infant sued the physician, they alleged that the child's death
was caused by the physician's failure to timely diagnose and treat the pulmonary hypertension which
had been revealed by the diagnostic tests performed on the child.  Turner, 232 S.W.3d at 418.  They
did not, as the Dallas court pointed out, contend that those tests were negligently performed.  Id.  The
Dallas court rejected the physician's argument that, because he used tangible personal property in
connection with the infant's diagnosis or treatment, the healthcare liability claim was caused by the
use of tangible personal property such that it could have been brought against his employer under
the TTCA.  Id. at 418-19.  The court concluded that the parents did not allege that their child was
injured or killed by the physician's negligent use of tangible property.  See id. at 419.  Instead, the
court concluded, the parents' allegations related only to the physician's diagnosis and treatment of
the pulmonary hypertension.  Therefore, the TTCA would not waive immunity for such claims to
be brought against a governmental unit.  Id.
	We see allegations that would fall within the TTCA's waiver in Tejada v. Rowe, 207 S.W.3d
920 (Tex. App.--Beaumont 2006, pet. filed), a case which involved medical care during the delivery
of twins.  Id. at 922.  The trial court granted the physicians' motion to dismiss pursuant to Section
101.106(f).  Id.  During the thirty-fourth week of her pregnancy, Tejada was admitted into Park Place
Hospital and diagnosed with pregnancy-induced hypertension and gestational diabetes.  Id.  Six days
later, she was transferred to UTMB where she was given a drug to augment her labor.  Id.  Both
children were delivered with the use of forceps and both were subsequently diagnosed with cerebral
palsy. (4) Id.
	The mother's allegations were several:
	Tejada's petition asserted that Rowe and DeMay were negligent in failing to
appropriately monitor and evaluate the fetal heart rates; failing "to accurately assess
and intervene in a timely manner;" "failing to identify risk factors during labor;"
"failing to monitor maternal and/or fetal condition;" "[i]nadequate patient
assessment;" "failing to notify physician appropriately and/or in a timely manner;"
"failing to properly and adequately supervise the nursing staff . . .  ;" "failing to
assign and provide an adequate nursing staff . . . ;" "failing to use sound nursing
judgments;" and "permitting a resident or intern to deliver the bab[ies] without proper
instruction, training or supervision[.]"

Id.  One expert report attributed the cerebral palsy to the "mechanical trauma and perinatal hypoxia
suffered by them during delivery."  Id.  Another expert asserted that the physicians
	were negligent in performing a forceps rotation on [one infant]; failing to perform a
cesarean section; failing to perform an episiotomy; failing to utilize appropriate
anesthesia; performing a traumatic delivery; inappropriately responding to fetal heart
decelerations and the presence of meconium; performing a breech extraction "with
internal podalic version and forceps . . ." [on the other infant]; and augmenting
Tejada's labor with Pitocin.

		. . . .

		The use of Pitocin increased the force of the uterine contractions to which
these babies were being subjected.  Pitocin should not have been used, nor should its
dosage have been increased.  In fact, its use should have been stopped.

Id. at 922-23.  The Corpus Christi court focused on the expert's assertions that the injuries were
caused by the use of the drug Pitocin and by the use of forceps during the deliveries.  Id. at 925. 
Both Pitocin and forceps are tangible personal property and, therefore, claims of injuries caused by
them would fall within Section 101.021(2)'s waiver of sovereign immunity.  Id.  The trial court did
not err by granting the physicians' motion to dismiss.  Id.
	We also look to Kelso v. Gonzales Healthcare Systems, 136 S.W.3d 377 (Tex. App.--Corpus
Christi 2004, no pet.).  Kelso is in a different procedural posture than many of the preceding cases
because it deals with a plea to the jurisdiction in a case brought against the governmental unit rather
than its employees.  136 S.W.3d at 380.  Kelso is valuable to our analysis, however, since we must
determine, here, whether Avis could have brought suit against AMH.  In dealing directly with
Section 101.021(2), Kelso illustrates what must be alleged in order to bring a suit against a
governmental unit under Section 101.021(2) for injuries allegedly caused by the condition or use of
tangible property.
	The relevant claims in Kelso involved delayed treatment following results of an
electrocardiograph (EKG) machine which indicated the patient was suffering from a heart attack. 
Id.  The patient sued, alleging that the nearly two-hour delay in treatment caused permanent injuries
and that the injuries were caused by the misuse of tangible personal property, i.e., the EKG machine. 
Id.  After the trial court granted the hospital's plea to the jurisdiction, the patient appealed.
	The Corpus Christi court pointed out that, although "use" is undefined in the statute, the term
"use" has been characterized as "to put or bring into action or service; to employ for or apply to a
given purpose."  Id. at 381-82 (citing Salcedo, 659 S.W.2d at 33).  The court also discussed the
Texas Supreme Court's distinctions between claims involving the failure to use tangible property and
those involving the condition or use of tangible property.  Id. at 382.  Those claims involving failure
to use tangible property will not waive sovereign immunity, while claims involving the condition
or use of tangible property will effect a waiver.  Id. (citing Tex. Dep't of Criminal Justice v. Miller,
51 S.W.3d 583, 587 (Tex. 2001)).
	The Kelso court concluded that the allegations, as they were, did not bring the claims under
the waiver provisions of the TTCA since the plaintiffs made no affirmative allegations that the EKG
machine was incorrectly used or that its results were erroneous.  Kelso, 136 S.W.3d at 382.  The
court reasoned that it was the misuse of the information produced by the EKG machine rather than
misuse of the device itself that represents the proximate cause of the injury.  Id.  If the EKG machine
is correctly used, any misuse of the information generated by it does not waive immunity under
Section 101.021(2); information is not tangible property within the meaning of Section 101.021(2). 
Id.  The suit could not be brought against the hospital under the TTCA, meaning that the trial court
properly granted the hospital's plea to the jurisdiction.
	To illustrate the difficult distinctions to be made in this arena, we contrast Kelso with
University of Texas Medical Branch Hospital at Galveston v. Hardy, 2 S.W.3d 607 (Tex.
App.--Houston [14th Dist.] 1999, pet. denied).  In Hardy, the plaintiff alleged that the failure to
properly monitor a cardiac monitor was the proximate cause of a patient's injuries and death.  Id. at
608-09.  While recovering from bypass surgery, the decedent "was connected to a cardiac monitor
which was intended to monitor her heart's activity and signal an alarm if any problem occurred."  Id.
at 608.  When the monitor signaled an alarm indicating heart stoppage, resuscitation efforts were not
commenced until at least five minutes following the first alarm from the monitor.  Id. at 608-09. 
The doctors were able to revive the patient, but not before oxygen deprivation left the patient on life
support with severe brain damage.  Id. at 609.  The patient never regained consciousness and was
eventually removed from life support systems.  Id.
	The plaintiff brought a wrongful death and survival action against the hospital, alleging that
the negligent use of the cardiac monitor was the proximate cause of the death of the decedent.  Id. 
She alleged that the hospital's staff failed to properly oversee the monitor.  Id.  In affirming the trial
court's denial of the hospital's plea to the jurisdiction, the court relied heavily on Salcedo, 659
S.W.2d at 33.  The court concluded that the use of the cardiac monitor in Hardy, like the EKG
machine in Salcedo, directly affected and impacted the person whose heart condition was being
monitored.  See 2 S.W.3d at 610.  An important point seems to be that "[t]he cardiac monitor could
only be effective . . . if it was properly monitored at all times."  Id.  The Hardy court continued: 
"Unfortunately, the person responsible for monitoring the cardiac monitor failed to do so, resulting
in the death of the decedent from the very condition that the proper use of the cardiac monitor was
intended to avoid."  Id.
	A careful study of Kelso and Hardy reveals what may be the critical distinction between the
two cases.  In Kelso, the device generated information from which the doctor then had to make a
diagnosis and plan a course of treatment.  The apparent misinterpretation of the information would
not qualify as use of tangible property within the TTCA.  In Hardy, however, the purpose of the
monitor was not necessarily limited to generating information.  Rather, the monitor in Hardy was
intended to signal complications and its purpose required that it be constantly monitored.  In other
words, the negligence in Kelso related to the proper interpretation, whereas the alleged negligence
in Hardy was the failure to properly use the device for the very purpose it was intended.  The
distinction between the two fact circumstances seems so finite (an alarm on a monitor when a critical
set of circumstances arises versus no alarm on an EKG machine to signal the examiner of the test
results when irregularities are present) that the results appear to be in conflict.  We believe the
analysis in Kelso to be more persuasive.
IV.	ANALYSIS
	A.	Standard and Scope of Review
	We apply a de novo standard of review because the issue in this case ultimately goes to the
issue of sovereign immunity, a question of law. (5) See Sheth v. Dearen, 225 S.W.3d 828, 831 n.2
(Tex. App.--Houston [14th Dist.] 2007, no pet.); Sykes, 136 S.W.3d at 638.  The burden is on the
movant under Section 101.106(f) to point to facts evidencing that plaintiff's suit could have been
brought against the governmental unit.  Sheth, 225 S.W.3d at 830; Phillips, 187 S.W.3d at 677;
Tejada, 207 S.W.3d at 923.  The primary sources of those facts are the plaintiff's pleadings; however,
other evidence is proper if relevant to the issue of waiver of sovereign immunity.  Phillips, 187
S.W.3d at 676-77; Tex. Natural Res. Conservation Comm'n v.White, 46 S.W.3d 864, 868 (Tex.
2001); Franka, 216 S.W.3d at 412.  In determining whether Avis has alleged facts that support a
finding that sovereign immunity would be waived as to AMH, we look at the substance of the
pleadings rather than Avis's characterizations of her pleadings.  See Sheth, 225 S.W.3d at 830.
	B.	The Substance of the Allegations Against the Nurses
	Avis's original petition claims that the nurses were negligent in failing to properly carry out
their nursing responsibilities to Avis and her infant in accordance with accepted standards of medical
and/or nursing practice.  The petition limits the specific allegations against Lanphier and Francis to
"negligence [as] solely due to [their] failure to act."  Looking beyond these limitations and into the
facts alleged in the petition (the record contains no expert report), we characterize the "real
substance" of Avis's allegations against the nurses as follows:
	1)  "[the] nurses . . . allowed her labor to proceed over the next eight (8) hours even though
her fetal monitor strips showed that her baby was in distress" 

	Arguably, Avis comes closest here to alleging facts that would qualify as use of tangible
property for purposes of the application of the TTCA.  However, unlike the plaintiff in Hardy, Avis
does not allege that the nurses failed to use the monitor.  That is, Avis does not allege that the nurses
failed to watch the monitor or that they used the monitor improperly.  Nor does she allege that the
injuries to her infant were caused by a device used during delivery.  Rather, her allegations seem to
fall more in line with those in Kelso in that she alleges that the nurses should have taken alternate
actions based on the information generated by the monitor.  No device used during the delivery is
alleged to have caused the injury to Avis's infant, as was the case in Tejada.
	Since Avis's allegations here are more accurately characterized as allegations that the nurses
took the wrong course of action based on the information from the monitor, we reiterate that
information is not treated as tangible property under the TTCA:  
	While the paper on which doctors and nurses may record information about a
patient's condition is tangible in that paper can be seen and touched, information
itself is an abstract concept, lacking corporeal, physical, or palpable qualities. 
Information thus, is intangible; the fact that information is recorded in writing does
not render the information tangible property.

York, 871 S.W.2d at 178-79; see Phillips, 187 S.W.3d at 676.
	Further, it is not enough that tangible property is simply involved in some way during the
course of treatment; there must be a nexus between the injury and the property.  See Miller, 51
S.W.3d at 588; Bossley, 968 S.W.2d at 342-43; Clark, 228 S.W.3d at 875; Kelso, 136 S.W.3d at
382.  We find the following observation helpful:
	[T]he mere use of tangible personal property by [the doctor] in connection with his
diagnosis and treatment of [the patient] does not mean the State has waived sovereign
immunity for any health care liability claim arising from that diagnosis and treatment. 
To hold otherwise would render a governmental unit subject to suit any time a
physician employed by it picked up a tongue depressor and examined a patient.

Turner, 232 S.W.3d at 419.

	2)  the nurses "never inserted a fetal scalp electrode" 
	There is a factual dispute here.  The record suggests that AMH staff did use a fetal scalp
electrode.  The law is clear, nonetheless, that the failure to use a device is not misuse that would put
the allegations within Section 101.021(2) of the TTCA.  Kerrville State Hosp. v. Clark, 923 S.W.2d
582, 584 (Tex. 1996); Miller, 51 S.W.3d at 587; Kelso, 136 S.W.3d at 382.
	3)  "[a] timely delivery would have allowed [the] baby to survive" 
	Here, Avis seems to suggest that the staff should have performed a cesarean section sooner. 
This decision relates only indirectly to the use of any property and is similar in nature to the
allegation examined in Williams and described as "quite simply, a claim of medical negligence . . .
not encompassed by the [TTCA]'s limited waiver of sovereign immunity."  Williams, 199 S.W.3d
at 466.  
V.	CONCLUSION
	The real substance of Avis's allegation against the nurses does not concern use of tangible
property and, therefore, falls outside Section 101.021(2)'s waiver of sovereign immunity.  That said,
Avis could not have brought those claims against AMH, the nurses' employer.  Since the nurses
failed to establish that Avis could have done so, they failed to satisfy all elements of Section
101.106(f) and were not entitled to dismissal pursuant to that section.  We overrule the nurses'
contentions and affirm the trial court's denial of the nurses' motion to dismiss.



						Bailey C. Moseley
						Justice

Date Submitted:	October 31, 2007
Date Decided:		January 10, 2008
1. The Houston-Fourteenth court also specifically addressed whether Section 101.106(f)
confers immunity and concluded that it does.  See Phillips v. Dafonte, 187 S.W.3d 669, 672-73
(Tex. App.--Houston [14th Dist.] 2006, no pet.) (relying on the reasoning in Newman v. Obersteller,
960 S.W.2d 621, 622 (Tex. 1997) in which the Texas Supreme Court construed an earlier,
differently-worded version of Section 101.106(f) as an immunity statute because it rendered a
defendant immune from further action in matter).  But see Rogers v. Bonnette, No. SA-04-CA-0118-XR, 2005 U.S. Dist. LEXIS 13497 (W.D. Tex. July 5, 2005, order), in which the court suggested that
the rewriting of the statute eliminated the language from which the Newman court concluded that
the statute conferred immunity to governmental employees.
2. Avis alleges that the staff failed to employ the use of a fetal scalp electrode.
3. Some cases have addressed Section 101.106(f) in three distinct parts: 1) was the individual
an employee of a governmental unit, 2) was the employee acting within the scope of his or her
employment, and 3) could the plaintiff have brought the suit against the employer.  See Turner v.
Zellers, 232 S.W.3d 414, 417 (Tex. App.--Dallas 2007, no pet.). 
	Neither party challenges the issues concerning AMH's status as a governmental unit. Both
parties seem to agree that AMH operates under Chapter 262 of the Texas Health and Safety Code
and is a municipal hospital authority.  The parties seem to passively agree on appeal that both
Lanphier and Francis were acting within the scope of their employment.  Although it appears the
parties disagreed on this matter at trial, any argument on the issue is not well developed in the briefs
to this Court. 
4. In addition, there were other complications with the delivery of the second infant.  The
opinion explains that she was delivered "by internal podalic version, breech extraction and forceps
for the aftercoming head."  Tejada, 207 S.W.3d at 922.
5. Several courts of appeals have announced the general standard of review applicable to
motions to dismiss:  abuse of discretion.  The Houston-Fourteenth court has taken issue with that
standard.  See Sheth v. Dearen, 225 S.W.3d 828, 831 n.2 (Tex. App. --Houston [14th Dist.] 2007,
no pet.).  Sheth concludes that the standard of review is dictated by the substance of the issue to be
reviewed as opposed to the procedural vehicle through which that issue arrives at the court of
appeals.  See Kanlic, 230 S.W.3d at 892; Sheth, 225 S.W.3d at 831 n.2.

e='mso-tab-count:1'>            We
affirm the judgment of the trial court.
II.        Analysis 
A.        Did the Trial Court
Err in Proceeding to Trial in Light of Johns Incompetence?
 
            John
claims that his procedural due process rights under the United States and Texas
Constitutions were violated when the trial court refused to continue the trial
due to Johns alleged incompetence.  As a
result, the termination proceeding took place while John was incompetent to
proceed with trial.[5]  
                        (1)        Constitutionally Protected Interest
            The
Fourteenth Amendment to the United States Constitution protects against
deprivation of life, liberty, or property by the State without due process of
law.  U.S. Const. amend. XIV; Daniels v. Williams, 474 U.S. 327, 331 (1986).  The Texas Constitution provides that No
citizen of this State shall be deprived of life, liberty, property, privileges
or immunities, or in any manner disfranchised, except by the due course of the
law of the land.  Tex. Const. art. I, § 19.  The Texas due course and federal due
process provisions have been interpreted to be without meaningful
distinction.  Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929
(Tex. 1995).  Therefore, in matters of
procedural due process, Texas courts have traditionally followed contemporary
federal due process interpretations of procedural due process issues.  See id.  
            Procedural
due process guarantees the right to a fair procedure.  John maintains that he was denied fair
procedure due to his alleged incompetence at the time of trial.  Therefore, we must determine whether John has
a liberty or property interest that is entitled to procedural due process protection,
and if he does, what process is due.  Logan v. Zimmerman Brush Co., 455 U.S.
422, 428 (1982).
            The
United States Supreme Court has stated that a liberty interest under the
Fourteenth Amendment 
denotes
not merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long
recognized . . . as essential to the orderly pursuit of happiness by free men.
 
Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 572 (1972) (quoting Meyer
v. Nebraska, 262 U.S. 390, 399 (1923)). 
[I]t cannot now be doubted that the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.  Troxel v. Granville,
530 U.S. 57, 66 (2000).  A states
attempt to terminate the parent-child relationship is governed by the
Fourteenth Amendment.  Santosky v. Kramer, 455 U.S. 745, 75354
(1982).  Moreover, the Texas Supreme
Court has recognized that the involuntary termination of parental rights
implicates fundamental constitutional rights. 
Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985).  In light of this weighty
precedent, there can be no doubt that Johns right to retain custody of R.M.T.
is a constitutionally protected liberty interest and must be afforded
procedural due process.  See Martinez v. Tex. Dept of Protective
& Regulatory Servs., 116 S.W.3d 266 (Tex.
App.El Paso 2003, pet. denied); In re
G.C., 66 S.W.3d 517, 525 (Tex. App.Fort Worth 2002, no pet.).
                        (2)        Eldridge
Balance
            The
question then becomes one of what process is due before the attempted
deprivation of parental rights as here. 
At a minimum, due process requires notice and an opportunity to be heard
at a meaningful time and in a meaningful manner.  Mathews
v. Eldridge, 424 U.S. 319 (1976). 
However, what process is due in any given situation is measured by a
flexible standard that depends on the practical requirements of the
circumstances.  Id. at 334; Than, 901
S.W.2d at 930.  When the State moves to
destroy weakened familial bonds, it must provide the parents with fundamentally
fair procedures.  Santosky, 455 U.S. at 75354.  [T]he process due in parental rights
termination proceedings turns on a balancing of the three distinct factors
specified in Mathews. . . .  Id.
at 754; In re S.K.A., 236 S.W.3d 875,
892 (Tex. App.Texarkana 2007, pet. denied). 

            In
conducting our due process analysis, we are cognizant of the fact that there is
no Texas authority which would permit a trial court to halt termination proceedings
due to the incompetency of the parent.  In re E.L.T., 93 S.W.3d 372, 375, 377
(Tex. App.Houston [14th Dist.] 2002, no pet.). 
In E.L.T, the court was
confronted with the issue of whether an allegedly incompetent mother was
entitled to a competency hearing prior to a proceeding on the merits to
terminate her parental rights.[6]  At the time of trial, counsel for the mother
requested a competency evaluation and a continuance because the mother
repeatedly asked, What are we doing here? 
The court ruled that the denial of the motion for continuance was not an
abuse of discretion because the motion was not in writing and was
unverified.  Id. at 375; see Tex. R. Civ. P. 251.
            Counsel
for the appealing parent in E.L.T
further argued that because a termination proceeding is quasi-criminal, the
trial should have been continued because the mother was mentally
incompetent.  The court summarily
dismissed this argument because there was no written or oral request for the
court to make such a competency finding and because there is no authority in
which a family court proceeding can be halted due to a parents
incompetency.  E.L.T., 93 S.W.3d at 375.  The
relevant sections of the Texas Family Code do not prescribe a competency
standard that a parent must meet before participating in a hearing or trial.  Id.;
see generally Tex. Fam. Code Ann. §§ 161.001.210 (West 2008).  To the contrary, a parents mental illness
may serve as a basis for involuntary termination of parental rights.  E.L.T.,
93 S.W.3d at 375; Tex. Fam. Code Ann.
§ 161.003.  Various procedural
safeguards, such as the appointment of a guardian or other legal representative
of the allegedly incompetent mother were not employed.  The record, held the court, did not reflect
an abuse of discretion in proceeding with the trial.  E.L.T.,
93 S.W.3d at 377.  
            E.L.T. is factually distinguishable from
this case in several respects.  In E.L.T., the only motion for continuance was oral, not complying with Rule
251 of the Texas Rules of Civil Procedure, the parent was appointed no guardian
ad litem or attorney ad litem,
and there was no finding by any court that the parent was incompetent and there
was no evidence introduced to support a claim that she was not competent.  Johns case here is stronger because a sworn
written motion was filed (which included affidavits concerning his competence),
John was represented by a guardian ad litem and
attorney ad litem, and another court had previously
fairly recently found John to be incompetent (as that term is defined in the
Texas Code of Criminal Procedure) to stand trial in his criminal case, and his
incompetency persisted at the time of the parental rights termination
proceeding;[7] in E.L.T, there was no guardian ad litem appointed for the parent whose rights were terminated 
E.L.T., 93 S.W.3d at 376.  Due
to the distinctions between these two cases, we do not believe E.L.T. offers concrete precedence.  
            In
his analysis of the Eldridge factors,
as they apply here, John relies largely on Justice Guzmans concurrence in E.L.T.[8]  John argues that because a parental rights
termination proceeding is a quasi-criminal proceeding, procedural due process
requires (as in criminal cases), that he not be subjected to trial until such
time as he is competent to do so.  
            It
is true that various courts have recognized termination proceedings to be
quasi-criminal in nature.  As explained
by Justice Guzman, 
Notwithstanding
the traditional classification of termination proceedings as civil in nature,
some courts have recognized that in certain contexts such suits are
quasi-criminal.  In re B.L.D., 56 S.W.3d 203, 21112 (Tex.
App.Waco 2001, pet. filed) (noting that statutory right to counsel in
termination proceedings includes a due process right that counsel be
effective); In re J.M.S.,
43 S.W.3d 60, 63 n.1 (Tex. App.Houston [14th Dist.] 2001, no pet.) (arguing by
analogy in termination case that certain other family law proceedings are
quasi-criminal in nature); In the Matter of the Marriage of Hill, 893 S.W.2d 753, 75556 (Tex.
App.Amarillo 1995, writ denied) (likening the procedural issues in parental
termination cases to those of criminal cases as both implicate constitutional
concerns); see also Edwards v. Texas Dept of Protective and Regulatory Servs.,
946 S.W.2d 130, 135 (Tex. App.El Paso 1997, no writ) (quoting approvingly of Hill).
. . . 
 
E.L.T., 93 S.W.2d at 377 (Guzman, J.,
concurring).  Further, 
[s]et
apart from mine run civil actions, termination proceedings work a unique
kind of deprivation.  M.L.B. v.
S.L.J., 519 U.S. 102,
12728, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Santosky,
455 U.S. at 762, 102 S.Ct. 1388 (noting that the
challenged state-initiated neglect proceeding bore many indicia of a criminal
trial).  Indeed, the removal of a child
from the care of his parents is a penalty as great, if not greater, than a
criminal penalty.  Lassiter v. Dept
of Soc. Servs. of Durham County, 452 U.S. 18, 39 n. 5, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (Blackmun, J.,
dissenting) (citations omitted).  Texas
commentators have gone so far as to call termination the capital punishment of
civil law.  Sampson & Tindall, Texas Family Code
Annotated § 161, Introductory Comment p. 757 (2001).  Such a characterization rings true considering
that termination proceedings involve the awesome authority of the State to
destroy permanently all legal recognition of the parental relationship.  M.L.B., 519 U.S. at 128, 117 S.Ct. 555.
 
Id. at 378 (Guzman, J., concurring).  We do not believe, however, that
classification of a termination proceeding as quasi-criminal can (or should) be
a sole factor which is outcome determinative in resolving the question of
whether Johns termination of parental rights proceeding should have been
continued until such time as he regained competency.  Rather, we look to and weigh the Eldridge factors to determine if the
termination proceeding in this case afforded John the measure of procedural due
process to which he was entitledthat is, whether he received a fair hearing.
            In
conducting an Eldridge due process analysis, we weigh three factors -- the
private interests at stake, the governments interest in the proceeding, and
the risk of erroneous deprivation of parental rights -- and balance the net
result against the presumption that our procedural rule comports with
constitutional due process requirements.  In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003)
(footnotes omitted).
            Under
the first prong of the Eldridge
balancing test, we are to evaluate the private interests affected by the
termination proceeding.  In parental
rights termination proceedings, the private interest affected is
commanding.  Santosky, 455 U.S. at 758.  The interest of a parent in such a proceeding
has been declared to be plain beyond the need for multiple citation and a
natural parents desire for and right to the companionship, care, custody and
management of his or her children is an interest far more precious than any
property right.  Lassiter v. Dept of Soc. Servs. of Durham
County N. Carolina, 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).  The required standard of review in
termination proceedings (strict scrutiny) and the high burden of proof (clear
and convincing evidence) point to the enormity of the liberty interest at
stake.  E.L.T., 93 S.W.3d at 379. 
Johns liberty interest in the parent-child relationship is of
fundamental significance under the first prong of the Eldridge balancing test and weighs heavily in favor of strong
procedural protections.  
            The
State correctly recognizes, however, that while the constitutional
underpinnings of the parent-child relationship are of fundamental significance,
they are not absolute.  In re C.H., 89 S.W.3d 17, 26 (Tex.
2002).  It is also essential that the
childs emotional and physical interests not be sacrificed in order to preserve
the parent-child relationship.  Id. 
The State maintains that the childs interests are necessarily involved
and must be considered in weighing the private interest at stake in accord with
Eldridge.  M.S.,
115 S.W.3d at 54748; In re J.F.C.,
96 S.W.3d 256 (Tex. 2002).  Indeed, the 
Family
Codes entire statutory scheme for protecting childrens welfare focuses on the
childs best interest.  See, e.g., Tex. Fam. Code §§ 51.11(b); 153.001;
153.002; 161.001(2); 161.101.  And, like
their parents, children have an interest in an accurate resolution and just
decision in termination cases.  But
children also have a strong interest in a final decision on termination so that
adoption to a stable home or return to the parents is not unduly prolonged.  In fact, it is this States express policy to
provide a safe, stable, and nonviolent environment for the child. Tex. Fam. Code § 153.001(a)(2).  And, if error is properly preserved, the
Legislature has upheld this interest by requiring prompt appellate decisions:  An appeal in a suit in which termination of
the parent-child relationship is in issue shall be given precedence over other
civil cases and shall be accelerated by the appellate courts.  Tex.
Fam. Code § 109.002(a). 
 
J.F.C., 96 S.W.3d at 304 (Schneider, J.,
dissenting); see also Lassiter, 452 U.S. at 32 ([C]hild-custody litigation must be concluded as rapidly as is
consistent with fairness. . . .). 
            Here,
a situation is presented whereby the trial court could not accommodate R.M.T.s
interest in achieving permanency without proceeding to trial while John was
incompetent.  Because the trial court was
acting in accord with a legislatively-mandated time frame[9]
requiring that the case either be tried or dismissed, it was faced with the
prospect of either dismissing the case by April 30, 2011 (the final deadline to
try or dismiss the action), or proceeding on to trial,  even though it apparently believed that John
was incompetent.  John argues that the
trial court should, at the least, have postponed the trial until April 30,
2011, the absolute deadline for the case to be tried or dismissed, in order to
afford him additional time to regain competency.  
            Despite
Johns request for a continuance in which he argued there was time to regain
competency prior to the drop dead date of April 30, 2011, there is no
evidence to indicate any likelihood or probability that John would regain
competence by this time, if ever.[10]  Under this scenario, the trial court could
not protect the childs interest in achieving permanency in a timely fashion
and accommodate Johns request that the case not proceed to trial while
incompetent.[11]  Accordingly, the private interests of John
and of R.M.T. under the first Eldridge
factor reflect a desire for an accurate and just decision, but one that does
not unduly prolong a final decision about the childs permanent home.  J.F.C.,
96 S.W.3d at 304.  In other words, the
interests of the child appeared to be in direct conflict with the interests of
the parent.  In such a head-to-head
conflict, one persons interest must trump the other; here, the interest of the
child is the trump card.
            The
States interest in the proceeding includes protecting the best interest of the
child, an interest which is served by procedures that promote an accurate
determination of whether the natural parents can and will provide a normal
home.  M.S., 115 S.W.3d at 54849 (quoting Santosky,
455 U.S. at 767); see also In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003) (the State parens patriae
interest in promoting the welfare of the child aligns with the parents
interest in a just and accurate decision).  The State also has an interest in an
accelerated timetable and a final decision that is not unduly prolonged with
negative psychological effects on the children left in limbo.  See M.S., 115 S.W.3d at 548; B.L.D., 113 S.W.3d at 353.  But
the States interests in economy and efficiency pale in comparison to the
private interests at stake, and to the risk that a parent may be erroneously
deprived of his or her parental rights and the child may be erroneously
deprived of the parents companionship.  M.S., 115 S.W.3d at 548. 
            In
this case, however, the States interest in economy and efficiency were
urgent.  The State had a strong interest
in conducting the termination proceeding in a timely fashion, in light of the
fact that the deadline to try or dismiss the case was looming on the horizon
like a harbinger of doom, as previously discussed.  The stark reality of the situation left the
State with a Hobsons choiceto either dismiss the case, which would result in
R.M.T. living in limbo (as her father was hospitalized for mental problems) or
proceed to trial while John remained incompetent.  Here, the States interest in economy, efficiency,
and finality were strong.  In light of
the fact that the Texas Family Code does not allow for extensions beyond what
was already given, this factor weighs in favor of conducting the termination
proceeding forthwith.  
            The
parents, childs, and governments interest in a just and accurate decision
dovetails with the third Eldridge factor -- that of the risk of
erroneous deprivation of the parent-child relationship.  Id. at 549; In re S.K.A.,
236 S.W.3d at 893.  As previously noted,
the Texas Family Code does not provide for a parental competency hearing in any
type of case.  However, the Code does
provide for the appointment of an attorney ad litem
for a parent who is the subject of a termination proceeding if the parent
suffers from a mental or emotional illness or from a mental deficiency which
renders the parent unable to provide for the physical, mental, and emotional
needs of the child.  Tex. Fam. Code Ann. § 161.003(b).[12]  The Texas Family Code also allows for the
discretionary appointment of an attorney ad litem for
a person who is incapacitated.  Tex. Fam. Code Ann. § 107.010 (West
2008).  
            Other
procedures designed to reduce the risk of an erroneous deprivation include the
requirement that grounds for termination, including the best interest of the
child, must be proved by clear and convincing evidence.  Tex.
Fam. Code Ann. § 161.001.  Further, appellate courts are to strictly
scrutinize decisions to terminate parental rights.  See Troxel, 530 U.S. at 80 (Thomas, J., concurring); Holick, 685
S.W.2d at 2021 ([T]ermination proceedings should be
strictly scrutinized, and involuntary termination statutes are strictly
construed in favor of the parent.).
            John
was represented in the termination proceeding by his attorney ad litem, who did all that one might anticipate could be done
to guard against a trammeling of his rights and his concerns.  Johns interests were protected at trial as
evidenced by his counsels (1) timely assertion in his motion for
continuance, statement of points, and closing argument of the precise due
process issues now before this Court, (2) ensuring that the motion for
continuance was heard in a timely fashion, (3) cross-examination of witnesses
at trial, (4) actively asserting objections at trial, (5) advising John to
assert his Fifth Amendment right against self-incrimination, and (6) providing
an affidavit in support of the motion for continuance.  
            John
contends that the procedural safeguards as outlined above were nevertheless
inadequate to prevent the risk of an erroneous deprivation of his parental
rights.  He urges this Court to adopt the
additional procedural safeguard utilized in criminal casesto prevent the government
from subjecting him to trial at a time when he lacked the capacity to
understand the nature and object of the proceedings against him, to consult
with counsel, and to assist in preparing his defense.  See
Alcott v. State, 51 S.W.3d 596, 598 (Tex. Crim. App. 2001).  John argues that his lack of competence
caused him to be unable to assist his attorney by providing information to
rebut evidence offered by the State and to provide information generally
helpful to defend against the termination proceeding.  
            Here,
John had already been determined to be mentally incompetent; thus, John
maintains, there remained the risk of erroneous deprivation of his rights.  Because termination is traumatic, permanent,
and irrevocable, any significant risk of erroneous deprivation is
unacceptable.  M.S., 115 S.W.3d at 549. 
Given that John was provided with the full panoply of constitutional
safeguards provided by the Texas Family Code, we cannot conclude the risk of
erroneous deprivation in this case was significant.  
            When
the Eldridge factors are balanced
against the presumption that our procedural rules[13]
comport with constitutional due process requirements, we find that presumption
has not been overcome.  See id. at 547 (net result of Eldridge factors must be balanced
against presumption that procedural rules comport with constitutional due
process requirements).  A calibration of
the Eldridge factors in this case
reveals that John was accorded all process due him in the parental rights
termination hearing.[14]  Moreover, the imposition of a requirement that
Johns termination trial be delayed indefinitely until a return of competence
would contravene the States and the childs interest in a final decision so
that the childs adoption or placement in a stable home or return to the parent
is not unduly prolonged.  The trial court
was given no indication of when John might regain competency, if ever.  There is no indication that any magic potion
was available to restore him to sanity before the drop dead date prescribed
by statute.  Given the exigent circumstances
presented here, and in weighing the practical requirements of the
circumstances, we find that John was accorded due process in his parental
rights termination hearing.  See Mathews,
424 U.S. at 334 ([D]ue process is flexible and calls
for such procedural protections as the particular situation demands.). 
            Having
so determined, we address the issue of the requested continuance.  
            The
decision to grant or deny a motion for continuance is within the trial courts
sound discretion.  See Tex. R. Civ. P. 251.  Unless the record discloses a clear abuse of
discretion, the trial courts denial of a motion for continuance will not be
disturbed.  State v. Wood Oil Distrib. Inc., 751
S.W.2d 863, 865 (Tex. 1988); E.L.T.,
93 S.W.3d at 374.  This Court cannot
substitute its judgment for that of the trial court, but must only determine
whether the trial courts action was so arbitrary as to exceed the bounds of
reasonable discretion.  Philipp Bros., Inc. v. Oil Country Specialists,
Ltd., 709 S.W.2d 262, 265 (Tex. App.Houston [1st Dist.] 1986, writ dismd).  A trial
court abuses its discretion if its decision is arbitrary, unreasonable, and
without reference to any guiding rules and principles.  Mercedes-Benz Credit Corp. v. Rhyne,
925 S.W.2d 664, 666 (Tex. 1996).
            In
this regard, the trial court stated,
[T]he
Court is of the opinion that the procedures set forth in the Texas Family Code
related to the termination of parental rights in those cases meet the minimum
due process requirements of the constitution.
 
And
that at this juncture, the Court has been presented [with] no binding legal authority
where any termination case has been halted or continued on the basis of the
respondent parents mental incompetency.
 
            For
the reasons articulated in this opinion, we find that the trial court did not
abuse its discretion in denying Johns motion for continuance.  
B.        Did the Trial Court
Err When It Allowed John to Testify Over Counsels Objection? 
 
            In
his final issue, John complains that the trial court erred when it allowed him
to testify over his attorneys objection that he was not competent, in reliance
on Rule 601 of the Texas Rules of Evidence. 
Tex. R. Evid.
601.[15]  Rule 601 creates a general presumption of
witness competency and provides, in pertinent part:
            (a)
 General Rule.  Every person is competent to be a
witness except as otherwise provided in these rules.  The following witnesses shall be incompetent
to testify in any proceeding subject to these rules:
 
            (1)  Insane persons.  Insane persons who, in the opinion of the
court, are in an insane condition of mind at the time when they are offered as
a witness, or who, in the opinion of the court, were in that condition when the
events happened of which they are called to testify.
 
Tex. R. Evid. 601. 
Witness competency is a threshold question for the trial court to
determine, and the trial courts ruling will not be disturbed on appeal unless
an abuse of discretion is shown.  Tex. R. Evid.
104(a); Kokes v. College, 148 S.W.3d 384, 389 (Tex.
App.Beaumont 2004, no pet.).  
            The
burden of proof rests on the party who claims the witness is incompetent due to
insanity to show the existence of insanity by a preponderance of the
evidence.  Handel v. Long Trusts, 757 S.W.2d 848, 854 (Tex. App.Texarkana 1988,
no pet.) (per curiam).  In order to demonstrate incompetency under
Rule 601, it must be shown that the witness lacked the ability to perceive the
relevant events, recall and narrate those events at the time of trial, or that
the witness lacked the capacity to understand the obligation of the oath.  Mobil
Oil Corp. v. Floyd, 810 S.W.2d 321, 323 (Tex. App.Beaumont 1991, orig.
proceeding).  Moreover, the adjudication
of insanity creates a rebuttable presumption of insanity.  Id.
at 324; Elliott v. Elliott, 208
S.W.2d 709 (Tex. Civ. App.Fort Worth 1948, writ refd
n.r.e.).
            The
evidence attached to Johns motion for continuance indicates that John could
not rationally or factually discuss his case with his attorney, could not
rationally communicate with his attorney, and could not discuss his legal
situation.  John suffered from
schizoaffective disorder, polysubstance dependence,
cognitive disorder, and personality disorder with paranoid and antisocial
traits.  In October 2010, it was reported
that John has been unable to achieve competency to stand trial during this
hospitalization and that in the physicians opinion, the patients condition .
. . is expected to continue for more than 90 days.  In February 2011, Johns attorney ad litem and guardian ad litem both
opined that John lacked the capacity to understand the nature and objective of
the proceeding against him and to consult with his attorney ad litem in preparing a defense to the allegations made by the
Department.  This evidence was not
disputed at trial.[16] 
            Further,
the trial court stated on the record that based on its own observations during
the course of the trial, John would not be able to testify.  The trial court further indicated that while
it would attempt to swear the witness (John) in, Im almost confident he will
not comprehend what Im asking. 
Finally, after swearing the witness in, the trial court stated, I want
the record to reflect that the witness was unable to follow the instruction to keep
his hand held up.  He indicates he understands
the oath that hes taken, although the Court doubts that to be the case. 
            John
had previously been judicially declared incompetent to stand trial in another
case based on medical evidence.  While
the prior judgment of incompetence does not disqualify John from testifying, it
does create a presumption of incompetency. 
See Floyd, 810 S.W.2d at 32324.[17]  This presumption, together with the records
of Johns incompetency, the appointment of a guardian ad litem
for John,[18] and
the comments of the trial court[19] are
solid evidence that John was incompetent at the time of trial.  Because the State did nothing to rebut the
presumption of Johns incompetence, the trial court acted outside of its
discretion when it permitted John to testify over the objection of
counsel.  
            On
appeal, the State concedes John was incompetent to testify at trial, but
maintains that because John has not demonstrated, argued, or even contended
that the admission of his testimony resulted in an improper judgment, his Rule
601 argument must fail.  We agree.  In order to reverse a judgment based on an
error in the admission of evidence, the complaining party must not only show that
the trial court committed an error, but also that the error was reasonably calculated
to cause, and probably did cause, rendition of an improper judgment.  See Tex. R. App. P. 44.1; State v. Cent. Expressway Sign Assocs.,
302 S.W.3d 866, 870 (Tex. 2009).  
            John
has not argued that this error has precipitated any harm and we do not perceive
that any harm was occasioned by the fact that John was permitted to testify,
despite his apparent incompetency.  It is
apparent that his appearance on the stand as a witness likely confirmed the
lack of competency under which he was suffering and we see nothing he stated
while testifying which would have damaged his case.  As a result, our review of the record does not
lead us to believe that an improper judgment probably resulted due to the
admission of Johns brief testimony.[20]  John testified that he knew his daughter is
R.M.T., and related that [s]hes very smart. 
While many of Johns answers were unintelligible, he testified that he
lives at 414 South Jean in Longview and that he wants the best for R.M.T.  John did not know when he would get out of
jail, but was told it would be a couple of weeks.  He believes that his ex-wife, Cindy, will
help take care of R.M.T.  
            Johns
parental rights were terminated under subsections 161.001(1)(D) and (E) of the Texas
Family Code.[21]  Johns abbreviated testimony does not touch
on the grounds for termination presented by the State.  If anything, his testimony indicates that he
cares about R.M.T. and wants what is best for her.  It is not probable that the erroneous
admission of Johns testimony resulted in the rendition of an improper
judgment.  We overrule this issue.
III.       Conclusion
            We
affirm the judgment of the trial court.
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
 
 
CONCURRING
OPINION
 
            The
trial court needs the authority to exercise discretion and judgment in setting
a hearing to terminate parental rights. 
Here, the primary rationale for proceeding with this termination hearing
was that the state-mandated dismissal sword was hanging over the head of the
trial court and the parties.  Failure to
conduct the hearing would require a dismissal of the case which might produce
negative consequences for the child.  To
comply with the statute, the trial court had to proceed to trial regardless
that the father was legally incompetent to understand the proceedings or assist
his lawyer.  Often this occurs in
criminal cases, and generally the defendant is treated at a state hospital and
regains competency and then the trial is conducted.  But in termination of parental rights cases,
the capital punishment of civil law, the judges discretion is effectively
removed by the statute requiring dismissal of the case if it has not been
resolved within the statutory limitation.  

            This
is unfair not only to the parent, who does not understand what is happening,
but also the State may prematurely seek termination if the only other option is
dismissal of the case.  Finally, the
ultimate concern should be with the child. 
Is it probable the child will be adopted?  Is the child thriving in the present
environment? Is resolving the parental right immediately necessary for the
well-being of the child?  These matters
are swept aside in a rush to conclude the case. 
The Legislature should amend the statute and allow the trial judges to
exercise their good judgment and discretion in setting final termination
hearings.   
            I
concur in the judgment.
 
 
 
                                                                        Jack
Carter
                                                                        Justice
 
Date
Submitted:          September 28, 2011
Date
Decided:             October 5, 2011
 



[1]For
purposes of confidentiality, the parents are referred to only by their first
names, and the child is identified only by initials.  See Tex. R. App. P. 9.8.  


[2]The
competency evaluation was performed by Dr. Thomas Allen on February 23, 2010,
concluding John was unable to rationally or factually discuss his case with his
attorney, could not rationally communicate with his attorney, and could not
discuss his legal situation.  On March 4,
2010, the trial court presiding over a criminal case pending against John
(Gregg County cause number 38,590-A) found John incompetent to stand
trial.  John was committed to a mental
health facility for a period not to exceed 120 days, with the specific
objective of attaining competency to stand trial.  John was subsequently interviewed September
29, 2010, by Gary Holly, M.Ed., LPC, who formed the opinion that John remained
incompetent to stand trial.  
 


[3]On
October 8, 2010, John was evaluated by Joseph L. Black, M.D., at North Texas
State Hospital who concluded that John suffered from schizoaffective disorder, polysubstance dependence, cognitive disorder, and
personality disorder with paranoid and antisocial traits.  The report states that John has been unable
to achieve competency to stand trial during this hospitalization and that in
the physicians opinion, the patients condition . . . is expected to continue
for more than 90 days.  A civil
commitment hearing was held on October 28, which resulted in Johns civil
commitment for not longer than 12 months. 
On December 20, 2010, it was determined that John was not manifestly
dangerous, and he was transferred to Rusk State Hospital.  On February 16, 2011, both Johns attorney
and his guardian ad litem visited him at Rusk State
Hospital.  Johns guardian ad litem averred in an affidavit that I seriously doubt if my
Client has the capacity to understand the nature and objective of the
proceedings against him and to consult with his Court appointed attorney ad litem in preparing a defense to the allegations made by the
Department.  Johns counsel averred in
his affidavit that John was unable to communicate with him, answer questions
relevant to the suit, provide any facts to rebut allegations made by the
Department, and was unable to assist in establishing a tactical goal for the
termination case.  The Department
concedes that John was incompetent to testify at trial.  
 


[4]The
referenced exhibits consist of the reports discussed in the previous footnotes,
as well as the affidavits of Johns guardian ad litem
and of his trial counsel.  The definition
of competency as discussed in the various reports is taken from the Texas
Code of Criminal Procedure:
 
                (a)           A
person is incompetent to stand trial if the person does not have:
 
                (1)           sufficient
present ability to consult with the persons lawyer with a reasonable degree of
rational understanding; or
 
                (2)           a rational as well as factual understanding of the
proceedings against the person.
 
                (b)           A defendant is presumed competent to stand trial and shall
be found competent to stand trial unless proved incompetent by a preponderance
of the evidence.
 
Tex.
Code Crim. Proc. Ann. art. 46B.003 (West 2006).


[5]Johns
first point of error technically complains of the trial courts refusal to
grant his motion for continuance; his second point of error complains that the
trial took place at a time when he was incompetent.  Both points of error allege John was deprived
of his procedural due process rights under the United States and Texas
Constitutions.  Because these points of
error largely overlap, we address both together.


[6]Here,
John does not complain of not having received a competency hearing; rather, he
complains of being forced to trial while incompetent.


[7]The
affidavit evidence in support of Johns incompetency was not contested.  At trial, the court commented that it was
inclined
 
to make a finding based upon
not only the reports that were filed with the motion for continuance in this
case that we heard last week, but also based on the Courts own observation of
[John] throughout the course of this trial, hes not going to be able to
testify.  
 
The trial court further indicated that it did not
believe John would comprehend the process of being sworn in to testify.  Later, the trial court stated, I want the
record to reflect that the witness was unable to follow the instruction to keep
his hand held up.  He indicates he
understands the oath that hes taken, although the Court doubts that to be the
case.  
 


[8]Justice
Guzman concurred in the result, but wrote separately to address what she
perceived to be the failure of Texas law to adequately address parental
competency in the context of termination of parental rights.  E.L.T.,
93 S.W.3d at 377 (Guzman, J., concurring). 
 


[9]Section
263.401of the Texas Family Code provides,
 
[O]n the first Monday after the first anniversary of
the date the court rendered a temporary order appointing the department as
temporary managing conservator, the court shall dismiss the suit affecting the
parent-child relationship filed by the department that requests termination of
the parent-child relationship or requests that the department be named
conservator of the child.  
 
Tex. Fam. Code Ann. § 263.401(a) (West 2008).  Subsection (b) allows for one extension not
to exceed 180 days, if the court finds that extraordinary circumstances
necessitate the child remaining in the temporary managing  conservatorship of the department and such
continuing appointment is in the best interest of the child.  Tex.
Fam. Code Ann. § 263.401(b) (West 2008). 
The trial date in this case was set after a 180-day extension was
granted. 
 


[10]John
was found incompetent to stand trial in his criminal case on March 4,
2010.  On September 29, 2010,
Dr. Stacey Shipley, a licensed psychologist, reported that John remained
incompetent to stand trial.  In her
report, Shipley concluded that Restoration of [Johns] trial competency is
very unlikely in the near future.  In October
2010, Johns records from North Texas State Hospital indicate that he has been
unable to achieve competency to stand trial during this hospitalization and
that incompetency was expected to continue for more than ninety days. 
 


[11]This
conundrum is one which is properly acted on by the Legislature, rather than the
courts.  By the very nature of his
request, John is asking for an extension of the deadline in which to try or
dismiss the case.  As currently drafted,
the statute does not permit any extension whatsoever beyond one 180-day
extension, then given only if good cause is shown and the extension would be in
the best interest of the child.  See Tex.
Fam. Code Ann. § 263.401(a).


[12]This
provision applies when termination is based on the mental or emotional illness
or mental deficiency of the parent that renders the parent unable to provide
for the physical, emotional, and mental needs of the child.  Tex.
Fam. Code Ann. § 161.003.


[13]The
primary procedural rule at issue is Section 263.401 of the Texas Family Code,
which imposes strict deadlines for resolution of termination cases.  See
Tex. Fam. Code Ann. § 263.401.
 


[14]We
further note that the statute does not provide for an extension of the deadline
for resolution of termination cases beyond what was given in this case.  See
Tex. Fam. Code Ann. § 263.401.


[15]At
trial, counsel for the State called John as a witness.  Counsel for John objected, 
 
                [Counsel]:  . . . . Im going to object under Rule . . .
601.  This witness is not competent to
testify.  If she wants to try to produce
evidence that he is competent to testify, thats fine, but, you know, weve got
reports from - - psychological reports that have been admitted as a prior
motion that indicate - - motion for continuance, the reports that were attached
that indicate hes not competent to testify. 
And I believe under Rule 601 . . . .
 
                .
. . .
 
                THE
COURT:  The Court is inclined . . . to
make a finding based upon not only the reports that were filed with the motion
for continuance in this case that we heard last week, but also based on the
Courts own observation of [John] throughout the course of this trial, hes not
going to be able to testify.  
 
                                .
. . .
 
                THE
COURT:  . . . . Ms. Russell, you want to
ask this gentleman questions, Im going to let you ask questions. . . . 
 


[16]There
was some indication at trial that the exhibits attached to Johns motion for continuance
were not independently introduced, and, thus, John could not rely on them to
support his claim of incompetency. 
Because the State did not raise this issue on appeal, we do not address it.  
 


[17]As
a general rule, a person is presumed to be sane until such time as he is found
to be insane, but once found to be insane, he is presumed to be insane until
such time as he is found to be sane.  Floyd, 810 S.W.2d at 324.  
 


[18]The
appointment of a guardian creates a presumption of incompetency in other
proceedings.  Barker v. Roelke, 105 S.W.3d 75, 85 (Tex.
App.Eastland 2003, pet. denied).
 


[19]The
comments of the trial court indicate that John may well have lacked the
capacity to understand the obligation of the oath.


[20]In
reviewing a matter tried before the court, the appellate court generally
assumes that the trial court disregarded any incompetent evidence.  Gillespie
v. Gillespie, 644 S.W.2d 449, 450 (Tex. 1982).  The admission of such evidence generally does
not require reversal of the judgment where there is competent evidence to
authorize its rendition.  Id. 
Moreover, no reversible error exists unless the entire case turns on the
evidence improperly admitted.  Roberts v. Clark, 188 S.W.3d 204, 208
(Tex. App.Tyler 2002, no pet.).  
 


[21]The
pertinent sections of the Texas Family Code provide that a parent-child
relationship may be terminated if the court finds by clear and convincing
evidence that the parent has:
 
                (D)          knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endanger the physical
or emotional well-being of the child;
 
                (E)           engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers the
physical or emotional well-being of the child; . . . .
 
Tex. Fam. Code
Ann. § 161.001(1)(D), (E).  In
addition, Section 161.001(2) requires clear and convincing evidence that
termination is in the best interest of the child.  Tex.
Fam. Code Ann. § 161.001(2).  


