
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
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
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
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 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
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.
	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 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
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 


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
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.
