Affirmed and Opinion filed August 25, 2016.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-15-00986-CV

 MEENA BANSAL INDIVIDUALLY AND AS REPRESENTATIVE OF THE
 ESTATE OF MUNISH BANSAL, DECEASED, AND VIRINDER BANSAL,
                        Appellants

                                          V.

 UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Appellee

                     On Appeal from the 55th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2014-53494

                                  OPINION


      In this wrongful-death and survival action, the plaintiffs appeal the grant of the
defendant state hospital’s plea to the jurisdiction asserting sovereign immunity. We
conclude that the hospital’s Eleventh Amendment sovereign immunity from suit on
the plaintiff’s federal claim has been neither waived nor abrogated, and that the
plaintiffs’ state-law claims cannot be brought within the Texas Tort Claims Act’s
waiver of sovereign immunity.        We therefore affirm the trial court’s judgment
granting the jurisdictional plea and dismissing the plaintiffs’ claims with prejudice.

                                    I. BACKGROUND

      After surgery and eight rounds of chemotherapy for stage IV colon cancer,
Munish Bansal was admitted to the University of Texas M.D. Anderson Cancer
Center with complaints of fever, fluid buildup, and difficulty urinating. Munish
remained in the hospital until he died on September 19, 2012, a week after his
admission.

      His father Virinder Bansal and his wife Meena Bansal, individually and as the
representative of Munish’s estate, sued M.D. Anderson. They alleged that after
Munish’s oncologist determined that chemotherapy had not worked and
recommended Munish’s discharge to hospice care, M.D. Anderson did not stabilize
Munish or relieve his pain. According to the Bansals, Munish died less than twenty-
four hours after M.D. Anderson allegedly reduced the care it provided to him.

      The Bansals asserted state-law claims of breach of contract, negligence, and
negligence per se, and a federal claim for violation of the Emergency Medical
Treatment and Active Labor Act (“EMTALA”). See 42 U.S.C. § 1395dd (2014).
EMTALA provides that if a person comes to a hospital and the hospital determines
that the person has an emergency medical condition, then the hospital must either
(a) provide such further medical examination and treatment “as may be required to
stabilize the medical condition,” given the hospital’s available staff and facilities; or
(b) transfer the person to another medical facility if certain conditions are met. Id.
§ 1395dd(b). If the hospital is a “participating hospital,” that is, if it has entered into
a provider agreement required to accept Medicare payments, then a person harmed by
the hospital’s violation of EMTALA may sue the hospital and obtain the personal-


                                            2
injury damages available under state law. Id. § 1395dd(d)(2)(A) (providing for suit);
id. § 1395dd(e)(2) (defining “participating hospital” as one that has entered into a
provider agreement under 42 U.S.C. § 1395cc); id. § 1395cc (listing the contents of
the agreement required for a provider of services to receive Medicare payments).

      M.D. Anderson filed a plea to the jurisdiction in which it argued that it was
entitled to sovereign immunity from suit. About a year later, the Bansals amended
their petition, and the parties filed a Rule 11 agreement in which they agreed that the
Bansals would neither seek additional discovery nor amend their pleadings for the
purpose of establishing the trial court’s subject-matter jurisdiction over their claims.
M.D. Anderson then filed a brief in support of its jurisdictional plea in which it
argued that the Bansals’ claims did not fall within the waiver of sovereign immunity
found in the Texas Tort Claims Act (“the TTCA”). See TEX. CIV. PRAC. & REM.
CODE ANN. §§ 101.001–.109 (West 2011 & Supp. 2016). In response, the Bansals
maintained that EMTALA preempts sovereign immunity.

      The trial court granted the plea to the jurisdiction and dismissed the Bansals’
claims with prejudice. In a single issue, the Bansals challenge that ruling.

      The Bansals concede that, as pleaded, their state-law claims are barred by
sovereign immunity. Thus, the focus of this appeal is whether the trial court erred in
determining that M.D. Anderson is entitled to sovereign immunity from the Bansals’
EMTALA claim.

                              II. STANDARD OF REVIEW

      Unless waived or abrogated, sovereign immunity shields the state from a
lawsuit for damages by depriving the trial court of subject-matter jurisdiction. See
Hous. Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 n.1 (Tex.
2016) (“[I]t is the Legislature’s sole province to waive or abrogate sovereign

                                           3
immunity.” (quoting Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d
849, 853 (Tex. 2002))); Univ. of Houston v. Barth, 403 S.W.3d 851, 853 (Tex. 2013)
(per curiam) (dismissing case for lack of subject-matter jurisdiction where sovereign
immunity was not waived); Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468,
476 (Tex. 2012) (sovereign immunity applies to lawsuits for damages). The plaintiff
bears the burden to establish the trial court’s jurisdiction.         See Heckman v.
Williamson County, 369 S.W.3d 137, 150 (Tex. 2012).

      Whether the trial court has subject-matter jurisdiction is a question of law that
can be challenged by a plea to the jurisdiction. See Suarez v. City of Texas City, 465
S.W.3d 623, 632 (Tex. 2015). We review the trial court’s ruling on a plea to the
jurisdiction by determining whether the plaintiff’s pleadings, construed in the
plaintiff’s favor, allege facts sufficient to affirmatively demonstrate the trial court’s
jurisdiction over the claim. See Hearts Bluff, 381 S.W.3d at 476. If the plaintiff’s
pleadings affirmatively negate jurisdiction, then the court must grant the plea to the
jurisdiction. See Heckman, 369 S.W.3d at 150.

                               III. THRESHOLD ISSUES

      In the trial court, M.D. Anderson argued that the Bansals’ EMTALA claim
does not fall within the waiver of immunity under the TTCA. On appeal, however,
M.D. Anderson argues for the first time that the claim is barred by M.D. Anderson’s
sovereign immunity under the Eleventh Amendment. See U.S. CONST. amend. XI.
The Bansals reply that this court cannot consider M.D. Anderson’s Eleventh
Amendment argument because (a) M.D. Anderson is prohibited from raising an
argument on appeal that was not raised in the trial court, and (b) raising a new
sovereign-immunity argument on appeal violates the parties’ Rule 11 agreement. See
TEX. R. CIV. P. 11. We disagree with both contentions.


                                           4
A.     New Arguments in Support of Sovereign Immunity Can Be Raised on
       Appeal.
       The Bansals contend that because M.D. Anderson did not argue in the trial
court that it was entitled to sovereign immunity under the Eleventh Amendment, we
cannot address that argument on appeal. In support of this contention, the Bansals
rely on Anderson v. American Federation of Government Employees, AFL-CIO, 338
S.W.3d 709, 713 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). In holding that
an appellate court “do[es] not have jurisdiction to consider grounds outside those
raised in the plea to the jurisdiction,” the First Court of Appeals relied on two cases:
Dallas v. First Trade Union Savings Bank, 133 S.W.3d 680, 687 (Tex. App.—Dallas
2003, pet. denied), disapproved of by Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex.
2012), and Brenham Housing. Authority v. Davies, 158 S.W.3d 53, 61 (Tex. App.—
Houston [14th Dist.] 2005, no pet.), disapproved of by Rusk State Hosp. v. Black, 392
S.W.3d 88 (Tex. 2012))).

       The statements in Anderson, First Trade Union Savings Bank, and Brenham
Housing Authority have not been an accurate statement of the law since at least 2012,
when the Texas Supreme Court decided Rusk State Hosp. v. Black.1                         In that
interlocutory appeal from the denial of a motion to dismiss a health-care-liability
claim, the court held that sovereign immunity could be raised for the first time on
appeal, even though no plea to the jurisdiction had been filed in the trial court. See
Rusk, 392 S.W.3d at 95. In the course of that decision, the Rusk court expressly

       1
         We disavowed our holding in Brenham Housing Authority v. Davies even before Rusk was
decided, holding instead that “[a]n appellate court must consider challenges to the trial court’s
subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges were
presented to or determined by the trial court.” See Fort Bend Cty. Toll Rd. Auth. v. Olivares, 316
S.W.3d 114, 118 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Waco Indep. Sch. Dist. v.
Gibson, 22 S.W.3d 849, 850–51 (Tex. 2000)). We explained that we were not bound to follow
Brenham Housing Authority because it was contrary to the Texas Supreme Court’s decision in
Gibson. See id. at 118 n.1.

                                                5
disapproved of the Fifth Court of Appeals’ contrary holding in First Trade Union
Savings Bank and our similar holding in Brenham Housing Authority. See id. at 95
n.8. These two now-disapproved opinions were the only authorities cited by the
Anderson court as support for the holding that an appellate court lacks jurisdiction to
consider grounds for challenging the trial court’s subject-matter jurisdiction that were
not raised in the plea to the jurisdiction. See Anderson, 338 S.W.3d at 713.

      It is now well-established that “an appellate court must consider all of a
defendant’s immunity arguments, whether the governmental entity raised other
jurisdictional arguments in the trial court or none at all.” San Antonio Water Sys. v.
Nicholas, 461 S.W.3d 131, 136 (Tex. 2015) (quoting Dall. Metrocare Servs. v.
Juarez, 420 S.W.3d 39, 41 (Tex. 2013) (per curiam)); see also Greene v. Farmers
Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014) (“We do not consider issues that
were not raised in the courts below, but parties are free to construct new arguments in
support of issues properly before the Court.”). Thus, we are not merely authorized to
consider new immunity-from-suit arguments; we are required to do so.

B.    In Its Rule 11 Agreement with the Bansals, M.D. Anderson Did Not Waive
      the Right to Raise New Sovereign-Immunity Arguments on Appeal.
      The Bansals additionally assert that in a Rule 11 agreement between the
parties, M.D. Anderson waived the right to raise new sovereign-immunity arguments.
See TEX. R. CIV. P. 11. The Rule 11 Agreement says,

      This is to confirm the parties’ agreement in the above referenced case
      whereby Plaintiffs agree they will not seek any additional discovery,
      either written or oral, for the purpose of establishing subject matter
      jurisdiction of the court. In addition, Plaintiffs agree that they waive the
      opportunity to further amend Plaintiffs’ Petition for the purposes of
      establishing subject matter Jurisdiction of the court. These agreements
      are made in anticipation of Defendant filing a Plea to the Jurisdiction
      based on sovereign immunity.

                                           6
      M.D. Anderson did not promise that it would waive the right to raise additional
arguments on appeal in support of sovereign immunity. At best, it promised only that
it would file a plea to the jurisdiction based on sovereign immunity. The agreement
does not address the scope of the arguments that M.D. Anderson could make in
support of its assertion of sovereign immunity.

      Because we are required to consider arguments implicating subject-matter
jurisdiction, and because the Rule 11 agreement does not affect that duty, we turn
now to the merits of the dispositive Eleventh Amendment argument.

                       IV. ELEVENTH AMENDMENT IMMUNITY

      The Eleventh Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. But, “the bare
text of the Amendment is not an exhaustive description of the States’ constitutional
immunity from suit.” Alden v. Maine, 527 U.S. 706, 736 (1999).

      Notwithstanding the Bansals’ assertions to the contrary, Eleventh Amendment
sovereign immunity applies to federal claims against the State, regardless of whether
the claims are brought in federal or state court. See id. at 754 (“In light of history,
practice, precedent, and the structure of the Constitution, we hold that the States
retain immunity from private suit in their own courts, an immunity beyond the
congressional power to abrogate by Article I legislation.”);2 Hoff v. Nueces County,
153 S.W.3d 45, 48 (Tex. 2004) (per curiam) (“Eleventh Amendment immunity

      2
         “The Social Security Act—of which the Medicare scheme, including EMTALA, forms a
part—is an exercise of Congress’[s] powers under Article I to tax and to regulate interstate
commerce.” Vazquez Morales v. Estado Libre Asociado de Puerto Rico, 967 F. Supp. 42, 46
(D.P.R. 1997).

                                             7
protects nonconsenting states from being sued in their own courts for federal law
claims.”).

      Under the Eleventh Amendment, a State’s constitutional immunity from suit
applies unless Congress validly abrogates it or the State voluntarily waives it. See
Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d 192, 195 (Tex. 2010).           It is
undisputed that M.D. Anderson is an arm of the State. See Act of May 26, 1989, 71st
Leg., R.S., ch. 644, § 2, 1989 TEX. GEN. LAWS 2129, 2130 –31 (stating that the
University of Texas M.D. Anderson Cancer Center is part of the University of Texas
System) (amended 2001, 2009, and 2013) (current version at TEX. EDUC. CODE ANN.
§ 65.02(a)(11)); Hencerling v. Tex. A & M Univ., 986 S.W.2d 373, 374 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied) (“State universities are agencies of the State
and enjoy sovereign immunity.”). Thus, M.D. Anderson is entitled to immunity from
suit on the Bansals’ EMTALA claim unless the Bansals established either that
Congress validly abrogated M.D. Anderson’s Eleventh Amendment immunity or that
Texas voluntarily waived it.

A.    EMTALA Does Not Abrogate the States’ Eleventh Amendment Immunity.
      Congress can abrogate the States’ immunity only if it both “(1) unequivocally
expresses its intent to do so, and (2) acts ‘pursuant to a constitutional provision
granting Congress the power to abrogate.’” See Herrera, 322 S.W.3d at 195 & n.12
(citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 59 (1996)).        Here,
Congress did neither.




                                         8
      1.    Congress did not unequivocally express an intent to abrogate Eleventh
            Amendment immunity.
      EMTALA provides in pertinent part as follows:

      (b)   Necessary stabilizing treatment for emergency medical
            conditions and labor
            (1)    In general
            If any individual (whether or not eligible for benefits under this
            subchapter) comes to a hospital and the hospital determines that
            the individual has an emergency medical condition, the hospital
            must provide either—
                   (A) within the staff and facilities available at the hospital,
                   for such further medical examination and such treatment as
                   may be required to stabilize the medical condition, or
                   (B) for transfer of the individual to another medical facility
                   in accordance with subsection (c) of this section.
                                         ....
      (d)   Enforcement
                                         ....
            (2)    Civil enforcement
                   (A)    Personal harm
                   Any individual who suffers personal harm as a direct result
                   of a participating hospital’s violation of a requirement of
                   this section may, in a civil action against the participating
                   hospital, obtain those damages available for personal injury
                   under the law of the State in which the hospital is located,
                   and such equitable relief as is appropriate.
      (e)   Definitions
            In this section:
                                         ....
            (2) The term “participating hospital” means a hospital that has
            entered into a provider agreement under section 1395cc of this
            title.
42 U.S.C.A. § 1395dd(b)(1), (d)(2), (e)(2).
                                          9
      Because EMTALA does not mention immunity or even differentiate between
private hospitals and those operated by the State, it cannot be said that Congress
unequivocally expressed an intention to abrogate the States’ Eleventh Amendment
immunity from private suits for EMTALA violations. Compare id. with 42 U.S.C.A.
§ 2000d-7(a)(1) (2014) (“A State shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit in Federal court for a
violation of . . . the provisions of any . . . Federal statute prohibiting discrimination by
recipients of Federal financial assistance.”); see also Morres v. Deer’s Head Hosp.
Ctr., CIV. CCB-08-2, 2008 WL 2991178, at *3 (D. Md. July 25, 2008) (not
designated for publication) (“Although Congress undoubtedly intended to create a
federal cause of action for EMTALA violations, there is no indication in the statute
that it intended to provide specifically for such suits against states.”), aff’d, 324 Fed.
Appx. 216 (4th Cir. 2009) (per curiam) (not designated for publication).

      2.     EMTALA does not fall within a constitutional provision granting
             Congress the power to abrogate Eleventh Amendment immunity.
      The principal source for abrogation authority is § 5 of the Fourteenth
Amendment.      Herrera, 322 S.W.3d at 195.          To pass constitutional muster, § 5
legislation must meet the two-part test of City of Boerne v. Flores, 521 U.S. 507
(1997). That is, it must (a) counter identified constitutional injuries by the States and
(b) exhibit “congruence and proportionality” between the injuries and the means
adopted to prevent or remedy them. Herrera, 332 S.W.3d at 195.

      EMTALA was not enacted to remedy constitutional violations because the
Constitution does not confer a right to stabilizing medical treatment. EMTALA
instead was passed to create a legal obligation that did not previously exist. See
Brooks v. Md. Gen. Hosp., Inc., 996 F.2d 708, 710 (4th Cir. 1993) (“Congress
expressed concern that hospitals were abandoning the longstanding practice of


                                            10
providing emergency care to all . . . . Under traditional state tort law, hospitals are
under no legal duty to provide this care. Accordingly, Congress enacted EMTALA to
require hospitals to continue to provide it.”). Because EMTALA was not intended to
“counter identified constitutional injuries by the States,” Congress could not validly
abrogate the States’ sovereign immunity to EMTALA claims.

B.    Texas Did Not Voluntarily Waive Sovereign Immunity from Private Civil
      EMTALA Claims.
      According to the Bansals, M.D. Anderson voluntarily waived Eleventh
Amendment immunity because it elected to be a “participating hospital” under
EMTALA—that is, it filed a provider agreement enabling it to receive Medicare
payments—and EMTALA allows a person who is harmed as a direct result of an
EMTALA violation to bring a civil action for damages against a “participating
hospital.” See 42 U.S.C. § 1395dd(d)(2)(A). The Bansals reason that by voluntarily
becoming a “participating hospital” entitled to Medicare payments, M.D. Anderson
necessarily consented to waive its immunity from private civil suits for EMTALA
violations.

      The United States Supreme Court rejected a similar argument in Atascadero
State Hosp. v. Scanlon, 473 U.S. 234 (1985), superseded by statute as stated in Lane
v. Peña, 518 U.S. 187, 198 (1996). In Atascadero, a job applicant with diabetes and
no sight in one eye sued a California state hospital and a state agency under the
federal Rehabilitation Act of 1973 after he allegedly was denied employment based
solely on those physical conditions. Id. at 236. The plaintiff based the suit on the
Rehabilitation Act’s provisions barring any recipient of federal assistance from
discriminating against a person with a disability and authorizing any person
aggrieved by a violation of the Rehabilitation Act to sue for damages. See id. at 244–
45. The state-entity defendants successfully moved for dismissal based on Eleventh


                                          11
Amendment immunity. See id. at 236. Because other provisions in the Rehabilitation
Act demonstrated that states are “the express intended recipients of federal
assistance,” the intermediate appellate court ruled that “the State by its participation
in the program authorized by Congress had in effect consented” to be sued for its
alleged violations of the statute. Id. at 246 (quoting 735 F.2d 359, 360, 361 (9th Cir.
1984)).

       The United States Supreme Court reversed, explaining that “the mere receipt of
federal funds cannot establish that a State has consented to suit,” and that the
Rehabilitation Act “falls far short of manifesting a clear intent to condition
participation in the programs funded under the Act on a State’s consent to waive its
constitutional immunity.” Id. at 246. The Court instead held that “Congress must
express its intention to abrogate the Eleventh Amendment in unmistakable language
in the statute itself.” Id. at 243.

       The reasoning in Atascadero applies with even greater force here. Unlike the
Rehabilitation Act, EMTALA does not make state entities “the express intended
recipients” of federal funds. To the contrary, EMTALA does not even distinguish
between state and private hospitals. When “Congress intends to impose a condition
on the grant of federal moneys, it must do so unambiguously.” Pennhurst State Sch.
& Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Congress did not express such an
intention in EMTALA.

       Although the Bansals have attempted to read a waiver of immunity into the
statute, the United States Supreme Court repeatedly has held that the law does not
recognize an implied or constructive waiver of sovereign immunity. See Sossamon v.
Texas, 563 U.S. 277, 284 (2011) (“Waiver [of sovereign immunity] may not be
implied.”); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 672, 683 (1999) (rejecting the argument that Congress may “exact

                                          12
constructive waivers of sovereign immunity through the exercise of Article I powers”
because such a “forced waiver” is merely abrogation by another name, and Article I
“gives Congress no authority to abrogate state sovereign immunity”).           Instead,
binding precedent “requir[es] that a State’s express waiver of sovereign immunity be
unequivocal.”    Coll. Sav. Bank, 527 U.S. at 680.        Because Congress did not
unambiguously require such a waiver, and no waiver was expressly and
unequivocally given, M.D. Anderson’s Eleventh Amendment immunity from suit for
allegedly violating EMTALA remains intact.

C.    Sovereign Immunity Forecloses the Bansals’ Federal Preemption
      Arguments.
      In a related vein, the Bansals contend that by virtue of the Supremacy Clause,
federal law preempts state law, and thus, EMTALA preempts sovereign immunity.
But see Bond v. United States, 134 S. Ct. 2077, 2088–89 (2014) (courts do not
presume that federal statutes preempt state law or abrogate sovereign immunity).

      The flaw in this argument is that Eleventh Amendment sovereign immunity is
not a matter of state law. As the United States Supreme Court explained in Alden v.
Maine, the States’ sovereign immunity predates the ratification of the Constitution,
and “exists today by constitutional design.” Alden, 527 U.S. at 713, 733. A State
therefore has a “constitutional privilege” to assert its Eleventh Amendment sovereign
immunity in its own courts. See id. at 754–55.

      In Alden, the Court rejected a preemption argument that was based on the same
reasoning followed by the Bansals. The Alden petitioner maintained that, as a result
of Supremacy Clause, “where Congress enacts legislation subjecting the States to
suit, the legislation by necessity overrides the sovereign immunity of the States.” See
id. at 731.     The Court rejected that argument, stating, “The Constitution, by
delegating to Congress the power to establish the supreme law of the land when

                                          13
acting within its enumerated powers, does not foreclose a State from asserting
immunity to claims arising under federal law . . . .” Id. at 732. The Court further
held that “the States retain immunity from private suit in their own courts, an
immunity beyond the congressional power to abrogate by Article I legislation.” Id. at
754.

       To summarize, if Congress did not validly abrogate sovereign immunity to
EMTALA claims (and Congress did not), and Texas did not voluntarily waive its
sovereign immunity to EMTALA claims (and Texas did not), then an arm of the
Texas state government cannot be sued for an EMTALA violation, regardless of
whether EMTALA would preempt state law in a suit against a private hospital. See
also Drew v. Univ. of Tenn. Reg’l Med. Ctr. Hosp., 211 F.3d 1268 (6th Cir. 2000)
(“Preemption determines what law applies, but sovereign immunity determines
whether the State can be sued at all.            If sovereign immunity applies, then any
discussion of preemption is advisory, and we would lack jurisdiction to address it.”).

       The preemption cases on which the Bansals rely are not inconsistent with this
result. In nearly all of the preemption cases the Bansals cite, the authoring court did
not consider Eleventh Amendment immunity because the lawsuit was not filed
against a provider that was a State entity. Instead, the suits at issue were filed against
a political subdivision of the state (such as a county or a hospital district) or an entity
operated by such a political subdivision (such as a county hospital or municipal
hospital).3 Eleventh Amendment immunity “does not extend to counties and similar


       3
           See, e.g., Root v. New Liberty Hosp. Dist., 209 F.3d 1068, 1069 (8th Cir. 2000) (hospital
district); Heimlicher v. Steele, 615 F. Supp. 2d 884, 894 (N.D. Iowa 2009) (county hospital);
Williams v. County of Cook, No. 97 C 1069, 1997 WL 428534 (N.D. Ill. July 24, 1997)
(unpublished) (county that operated hospital); Etter v. Bd. of Trustees of N. Kansas City Hosp., 95-
0624-CV-W-6, 1995 WL 634472, at *1 (W.D. Mo. Oct. 26, 1995) (unpublished) (board of
municipal hospital); Helton v. Phelps Cty. Reg’l Med. Ctr., 817 F. Supp. 789, 789 (E.D. Mo. 1993)
(county hospital).

                                                14
municipal corporations.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280 (1977); see also N. Ins. Co. of N.Y. v. Chatham Cty., Ga., 547 U.S. 189, 193
(2006) (“A consequence of this Court’s recognition of preratification sovereignty as
the source of immunity from suit is that only States and arms of the State possess
immunity from suits authorized by federal law.”).4

D.     The Bansals Cannot Amend Their Pleadings to Avoid Sovereign
       Immunity.
       The Bansals ask that if we conclude that they failed to plead a claim for which
sovereign immunity is waived, we remand the case for them to amend their pleadings
to cure the jurisdictional defect. They assert that they could bring their claims within
the Texas Tort Claims Act’s waiver of sovereign immunity by pleading that M.D.
Anderson “wrongfully used pills and nebulizers (personal property) to avoid the more
proper use of a ventilator and intravenous antibiotics, thereby causing damage.”5

       If the pleadings and record are insufficient either to establish or to conclusively
negate jurisdiction, then we generally will remand to give the plaintiffs an

       4
          The Bansals quote extensively from one case that does mention Eleventh Amendment
immunity: Godwin v. Memorial Medical Center, 130 N.M. 434, 437, 25 P.3d 273, 276 (2001).
That case, however, is inapposite. Unlike Texas, New Mexico abolished its common-law sovereign
immunity—that is, its pre-ratification immunity—but replaced it a year later with a state statutory
grant of immunity that does not distinguish between State entities and the State’s political
subdivisions. See Upton v. Clovis Mun. Sch. Dist., 140 N.M. 205, 207, 141 P.3d 1259, 1261 (2006).
As part of that statute, New Mexico’s legislature announced that the State retained its “immunity
from suit in federal court under the eleventh amendment to the United States constitution,” see
N.M. STAT. ANN. § 41-4-4(F) (West, Westlaw through 2016 2d R.S.) (emphasis added), but Godwin
was decided in a New Mexico state court. Eleventh Amendment sovereign immunity therefore
appears inapplicable to federal claims in New Mexico state courts. Because that result is dictated
by state law that differs from ours, we do not find Godwin instructive.
       5
          The Bansals also ask that if we conclude that they failed to plead the elements of an
actionable EMTALA violation, we remand to give them an opportunity to amend their pleadings to
assert that M.D. Anderson acted in bad faith when it admitted Munish to the hospital. Because we
conclude that sovereign immunity from civil damage suits for EMTALA violations has been neither
abrogated nor waived, the question of whether an EMTALA violation was sufficiently alleged is
moot.

                                                15
opportunity to amend their pleadings unless the plaintiffs (1) failed to show
jurisdiction despite having had a full and fair opportunity in the trial court to develop
the record and amend their pleadings, or (2) would be unable to show the existence of
jurisdiction even if the cause were remanded and such an opportunity were afforded.
See Rusk, 392 S.W.3d at 96.

      We need not determine whether the Bansals already have had a full and fair
opportunity to amend their pleadings, nor is it necessary to consider whether, under
the parties’ Rule 11 agreement, the Bansals have waived the opportunity to amend
their pleadings. In any event, further amendment would futile because repleading
would not bring the Bansals’ claims within the scope of the TTCA’s waiver of
immunity.

      Under the TTCA, a governmental unit is liable for “personal injury and death
so 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.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2011).
Sovereign immunity from suit has been waived to the extent of liability created by the
TTCA.     Id. § 101.025(a).    The Bansals’ complaint, however, is not that M.D.
Anderson caused Munish’s pain or his death by its use of tangible personal property,
but that M.D. Anderson failed to use different tangible personal property that would
have eased his pain or prolonged his life. Failure to use tangible personal property is
not within the scope of the TTCA’s waiver of sovereign immunity. See, e.g., Tex.
Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587–89 (Tex. 2001) (holding that
the alleged misuse of pain-reducing and anti-nausea medications, intravenous fluids,
and diagnostic equipment that camouflaged the symptoms of meningitis is not a claim
within the TTCA’s waiver of immunity); Kerrville State Hosp. v. Clark, 923 S.W.2d
582, 585–86 (Tex. 1996) (explaining that, by alleging that health-care providers

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failed to prescribe medications that could have prevented the injury, the plaintiffs
alleged the non-use of tangible property, and thus, their claim was not within TTCA’s
waiver of immunity); see also Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, 329
S.W.3d 876, 880–81 & nn. 3–8 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)
(explaining that the TTCA’s tangible personal-property provision does not waive
sovereign immunity for injuries proximately caused by the negligent exercise of
medical judgment, the use or misuse of information, the failure to act or to use
property, or the failure to supervise, investigate, or monitor). We therefore deny the
Bansals’ request that we remand the case to allow them to replead.

                                   V. CONCLUSION

      M.D. Anderson’s Eleventh Amendment sovereign immunity bars the Bansals’
claim for allegedly violating EMTALA, and their state-law claims cannot be brought
within the TTCA’s waiver of immunity because the claims are based on the non-use
rather than the use of tangible personal property. We therefore affirm the trial court’s
order granting M.D. Anderson’s plea to the jurisdiction and dismissing the Bansals’
claims with prejudice.




                                       /s/        Tracy Christopher
                                                  Justice




Panel consists of Justices Boyce, Christopher, and Jamison.




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