Opinion issued May 7, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-01046-CV
                            ———————————
   THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER,
                         Appellant
                                        V.
                       ROGER CONTRERAS, Appellee


                   On Appeal from the 152nd District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-70606


                                O P I N I O N

      The University of Texas MD Anderson Cancer Center filed a plea to the

jurisdiction based on the doctrine of sovereign immunity. The trial court denied the

plea, and MD Anderson appeals. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).

      We reverse and render a judgment dismissing the suit for lack of jurisdiction.
                                 BACKGROUND

      Roger Contreras alleges that he was injured in a fall after undergoing knee-

replacement surgery at MD Anderson. According to Contreras, he went to MD

Anderson’s barbershop with the assistance of a nurse, a walker, and a rolling IV

pole. The nurse left him there so that he could get a haircut. When the nurse left the

barbershop, she took Contreras’s walker with her and told Contreras to use his IV

pole “as a mobility assistance device when he needed to move around.” While using

the IV pole as instructed, it caused him to fall. Contreras asserts a single cause of

action for negligence, alleging that MD Anderson negligently used the rolling IV

pole as a walking aid, mobility device, or fall-prevention mechanism.

      MD Anderson filed a plea to the jurisdiction, asserting that it has not waived

its sovereign immunity from suit. The parties submitted evidence to the trial court.

This evidence included Contreras’s deposition, his medical expert’s report, and the

deposition of Contreras’s treating surgeon.

      Contreras testified that the nurse told him that he “could use the IV pole” to

move about the barbershop and that he did not have any other means of doing so.

When he later got up to go to the shampoo station after his haircut, he used his IV

pole “as a walker.” He took two steps and then his knee “weakened and buckled.”

At that point, the IV pole “just rolled,” and he “fell down.” When asked to clarify

whether his knee buckled or the IV pole rolled first, Contreras stated that his “knee


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would have done it and that’s when” he tried to steady himself and couldn’t. He

agreed that his knee buckled first, causing him to fall to the ground, and that the IV

pole did not cause his knee to buckle. So far as Contreras knew, the IV pole was not

defective.

      Will Moorhead, M.D., Contreras’s medical expert, opined that an IV pole is

not a proper walking aid. Indeed, he opined that a rolling IV pole “is contraindicated

for use as an assisted ambulatory device.” Moorhead concluded that MD Anderson

should have provided Contreras with a proper ambulatory device, such as an actual

walker instead of the rolling IV pole.

      Contreras’s treating surgeon, Bryan Moon, M.D., likewise testified that he did

not consider a rolling IV pole to be an assistive device. While Moon sees patients

use IV poles for this purpose, he agreed that an IV pole is not what he has in mind

when he orders that his patients receive an assistive device. As to Contreras, Moon

testified that he “would anticipate that he would need more than” a rolling IV pole

for assistance in walking. Moon also said that he was surprised that Contreras did

not have a walker with him in the barbershop because a patient who has had knee

surgery typically would have one.

      The trial court denied MD Anderson’s jurisdictional plea.




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                                   DISCUSSION

      It is undisputed that MD Anderson is a state entity shielded from suit by

sovereign immunity unless its immunity is waived by the Tort Claims Act.

      Contreras maintains that MD Anderson’s negligent use of a rolling IV pole as

a mobility-assistance device caused his injuries. He argues that a nurse took his

walker away and told him to use the IV pole to get around. Contreras contends that

he “fell when the use of the rolling IV-pole proved to be a negligent use of an

inadequate mobility device.” He argues that this brings him within the Act’s waiver

of immunity for injuries caused by the state’s use of tangible personal property. See

TEX. CIV. PRAC. & REM. CODE § 101.021(2).

      MD Anderson contends that Contreras’s negligence claim does not satisfy

section 101.021(2)’s use requirement for two reasons. First, MD Anderson argues

that it merely furnished Contreras with the IV pole, which he, rather than a hospital

employee, then used. Second, it argues that Contreras’s true complaint is that MD

Anderson should have given him a different mobility-assistance device, namely his

walker, and thus turns on the non-use of tangible personal property instead of its use.

      A.     Standard of review

      An assertion of sovereign immunity is jurisdictional in nature. State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007). If the state or certain governmental units

have not waived their sovereign immunity, then the trial court lacks subject-matter


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jurisdiction to hear a suit for damages against them. Shamrock Psychiatric Clinic v.

Tex. Dep’t of Health & Human Servs., 540 S.W.3d 553, 559 (Tex. 2018) (per

curiam). Jurisdictional challenges present a question of law, which we review de

novo. Id.; Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). In a de novo review, we give no deference to the trial court’s jurisdictional

ruling. McFadin v. Broadway Coffeehouse, 539 S.W.3d 278, 282 (Tex. 2018).

      Because sovereign immunity implicates subject-matter jurisdiction, it can be

raised for the first time on appeal. State ex rel. Best v. Harper, 562 S.W.3d 1, 15

(Tex. 2018); Rusk State Hosp. v. Black, 392 S.W.3d 88, 94–95 (Tex. 2012). Like

other issues implicating subject-matter jurisdiction, sovereign immunity cannot be

waived. See Bush v. Lone Oak Club, 546 S.W.3d 766, 772 (Tex. App.—Houston

[1st Dist.] 2018, pet. pending). We thus must consider the sovereign-immunity

arguments made by a governmental unit on appeal regardless of whether it made

these arguments or how it framed them in the trial court. See id.

      In assessing whether subject-matter jurisdiction exists, we first focus on

whether the plaintiff’s petition, construed in the plaintiff’s favor, pleads facts that

affirmatively show that subject-matter jurisdiction exists. Hearts Bluff Game Ranch

v. State, 381 S.W.3d 468, 476 (Tex. 2012); Holland, 221 S.W.3d at 642–43.

Sometimes, however, we also must consider evidence as to jurisdictional facts.

Hearts Bluff, 381 S.W.3d at 476. If a fact issue exists as to whether subject-matter


                                          5
jurisdiction exists and the issue is inextricably entwined with the merits, the

resolution of this issue is for the factfinder. Miranda, 133 S.W.3d at 226–28. But

evidence also may undermine the jurisdictional allegations of the plaintiff’s petition.

Hearts Bluff, 381 S.W.3d at 476. If the undisputed evidence negates jurisdiction,

then the plaintiff’s suit must be dismissed. See Miranda, 133 S.W.3d at 234.

      B.     Applicable law

      The Tort Claims Act waives sovereign immunity in three distinct areas,

including with respect to injuries “caused by a condition or use of tangible personal

or real property.” TEX. CIV. PRAC. & REM. CODE § 101.021(2); see Miranda, 133

S.W.3d at 225. This provision has been a source of judicial concern almost from the

moment of its enactment. See, e.g., Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d

583, 589–93 (Tex. 2001) (Hecht, J., concurring) (pleading in vain with Legislature

to amend provision to clarify its scope). As a result, the Supreme Court of Texas has

rendered numerous decisions interpreting section 101.021(2).

      Subject to a narrow exception, a governmental unit does not use personal

property merely by providing, furnishing, or allowing another to use it. Harris Cty.

v. Annab, 547 S.W.3d 609, 613 (Tex. 2018). So, for example, when a patient, rather

than the government, uses the property, section 101.021(2) is not satisfied. Dallas

Cty. v. Posey, 290 S.W.3d 869, 871 (Tex. 2009) (per curiam). The exception to this

general rule applies to situations in which the government provides the plaintiff with


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personal property that lacks an integral safety component and the safety

component’s absence causes the plaintiff’s injury. San Antonio State Hosp. v.

Cowan, 128 S.W.3d 244, 247 (Tex. 2004). This exception, however, applies solely

when the component is entirely missing; the failure to provide a more effective safety

feature does not trigger the exception. Tex. A&M Univ. v. Bishop, 156 S.W.3d 580,

584 (Tex. 2005); Tex. Dep’t of Family & Protective Servs. v. Atwood, 176 S.W.3d

522, 531 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Otherwise, for

purposes of section 101.021(2), a governmental unit uses tangible personal property

if and only if the governmental unit itself is the user of the property. See Annab, 547

S.W.3d at 613; Black, 392 S.W.3d at 97; City of Pasadena v. Thomas, 263 S.W.3d

43, 45 (Tex. App.—Houston [1st Dist.] 2006, no pet.). An allegation that the

government enabled, authorized, or approved another’s use of the property is not

enough. Annab, 547 S.W.3d at 613. Nor does a claim for negligent supervision of a

governmental employee or agent qualify as the use of tangible personal property.

Bishop, 156 S.W.3d at 583; Thomas, 263 S.W.3d at 47.

      By definition, non-use is not use. Annab, 547 S.W.3d at 614. Thus, for

example, an allegation that the government failed to use an alternative or different

type of tangible personal property does not satisfy section 101.021(2)’s use

requirement. City of N. Richland Hills v. Friend, 370 S.W.3d 369, 372–73 (Tex.




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2012); Posey, 290 S.W.3d at 871–72. In the particular context of state medical

facilities, the Court has observed that:

              There cannot be waiver of sovereign immunity in every case in
      which medical treatment is provided by a public facility. Doctors in
      state medical facilities use some form of tangible personal property
      nearly every time they treat a patient. Because of this fact, a patient
      suing for negligence could always complain that a different form of
      treatment than the one employed would have been more effective and
      still claim waiver under the Act. If such a complaint were enough to
      constitute the use of tangible personal property under the Act, the
      doctrine of sovereign immunity would be rendered a nullity.

Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585–86 (Tex. 1996).

      In addition, the governmental unit must not only use the property, the property

also must have actually caused the plaintiff’s injury for section 101.021(2) to apply.

Miller, 51 S.W.3d at 588. If the use of the property merely furnishes a condition that

makes the injury possible, rather than causing it, then the government’s sovereign

immunity remains intact. Id.; Dallas Cty. Mental Health & Mental Retardation v.

Bossley, 968 S.W.2d 339, 343 (Tex. 1998); Univ. of Tex. Med. Branch at Galveston

v. Tatum, 389 S.W.3d 457, 461 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

      C.     Analysis

      As an initial matter, Contreras contends that we must affirm the trial court’s

denial of MD Anderson’s jurisdictional plea because its “appeal is based on a fatally-

flawed plea to the jurisdiction.” We reject this contention.




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      Whether MD Anderson is entitled to dismissal based on sovereign immunity

turns on the jurisdictional allegations in Contreras’s petition and the relevant

evidence in the record. See Hearts Bluff, 381 S.W.3d at 476. Because sovereign

immunity implicates subject-matter jurisdiction, the doctrine is not subject to waiver.

See Bush, 546 S.W.3d at 772. Flaws in MD Anderson’s plea are thus immaterial,

unless they affect its substantive arguments, to which we now turn.

      Contreras doesn’t allege that his IV pole was defective. He contends he fell

because MD Anderson “employees negligently used a rolling IV pole as an

inadequate walking assistance device” to help him move about.

      But neither the nurse who took Contreras to the barbershop nor any other MD

Anderson employee used the IV pole in the sense required by section 101.021(2).

The Supreme Court has held that a governmental medical facility does not waive its

sovereign immunity by providing, furnishing, or allowing a patient to use tangible

personal property. For example, in Cowan, a state hospital allowed a suicidal patient

to keep his suspenders and walker, which the patient then used to kill himself. 128

S.W.3d at 245. The Court held that section 101.021(2)’s waiver of sovereign

immunity did not apply because it “waives immunity for a use of personal property

only when the governmental unit is itself the user.” Id. at 245–46; see also Posey,

290 S.W.3d at 871 (“In Cowan, we held that the government did not waive immunity

by providing suspenders and a walker to a patient who later used them to hang


                                          9
himself because it was the patient—not the government—who used the property.”).

Similarly, in Black, a state hospital either provided a psychiatric patient with access

to a plastic bag or failed to prohibit him from accessing it, and the patient used it to

kill himself. 392 S.W.3d at 91, 98. Relying on Cowan, the Court once again held

that a state hospital does not use property within the meaning of section 101.021(2)

“by merely providing, furnishing, or allowing access to it.” Id. at 98.

      There is a narrow exception for scenarios in which a governmental unit

furnishes the plaintiff with personal property that lacks an integral safety component

and the safety component’s absence causes the plaintiff’s injury. Cowan, 128

S.W.3d at 246–47; see Clark, 923 S.W.2d at 585 (“For example, if a hospital

provided a patient with a bed lacking bed rails and the lack of this protective

equipment led to the patient’s injury, the Act’s waiver provisions would be

implicated.”). But Contreras does not allege that his IV pole would have been safe

for use as a mobility-assistance device if only it had included a safety component

that it lacked. He instead claims that a rolling IV pole is inadequate for use as a

mobility-assistance device and that MD Anderson was negligent in allowing him to

use it for this purpose. Contreras’s expert, for example, opined that a rolling IV pole

is “contraindicated for use as an assisted ambulatory device.” “Contraindicate” is a

term of art in medicine meaning that a particular technique or treatment “should not




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be used in the case in question.” Contraindicate, NEW OXFORD AMERICAN

DICTIONARY (3d ed. 2010).

      A corollary to Contreras’s position that a rolling IV pole was contraindicated

for use as a mobility-assistance device is the proposition that MD Anderson should

have furnished him with some other device, like an actual walker, to help him move

about the barbershop. This proposition, however, amounts to an allegation of failure

to use tangible personal property or non-use, rather than use. See Friend, 370 S.W.3d

at 372–73; Posey, 290 S.W.3d at 871–72. An allegation that MD Anderson’s

employees should have given him a different device does not come within section

101.021(2)’s waiver of immunity for use of property. See Annab, 547 S.W.3d at 614.

      Contreras contends that Cowan and other Supreme Court decisions are

distinguishable because MD Anderson did not merely furnish him with an IV pole

as a mobility-assistance device. The nurse’s instruction that he should use the pole

for this very purpose, he argues, sets his case apart from decisions like Cowan. In

support of this argument, Contreras relies on University of Texas MD Anderson

Cancer Center v. Jones, in which our sister court held that the “prescribing and

dispensing” of a prescription drug to a patient who attempted suicide after taking the

medicine constituted use for purposes of section 101.021(2). 485 S.W.3d 145, 151

(Tex. App.—Houston [14th Dist.] 2016, pet. denied). Contreras posits that he is like




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the plaintiff in Jones, inasmuch as both he and that plaintiff were directed to use

property and suffered injury as a result.

      We disagree with Contreras’s contention that Jones provides a persuasive

distinction. Unlike our sister court, this court has rejected the notion that state

doctors use tangible personal property when they write a prescription. Ruggeri v.

Baylor Coll. of Med., No. 01-13-00353-CV, 2014 WL 4345165, at *3–4 (Tex.

App.—Houston [1st Dist.] Aug. 29, 2014, no pet.) (mem. op.). Our sister court

distinguished Ruggeri on the basis that another, non-state facility actually dispensed

the medicine to the patient in that case. See Jones, 485 S.W.3d at 150 n.6. In other

words, the Jones court held that when a state medical facility both prescribes and

dispenses a medication, it has used that medicine for purposes of section 101.021(2)

when the plaintiff alleges she was injured as a result of using it. See id. at 150–51.

      We cannot agree with the Jones court’s conclusion that the act of dispensing

medicine makes a meaningful difference or that prescribing in combination with

dispensing constitutes use of personal property for purposes of section 101.021(2).

After Jones was decided, the Supreme Court handed down its decision in Annab. In

Annab, the Court held that an allegation that a governmental unit “enabled,

authorized, or approved” another’s use of personal property does not amount to an

allegation that the governmental unit itself used that property. 547 S.W.3d at 613.

Whether considered on their own or in combination, a doctor’s prescription and a


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pharmacist’s subsequent dispensing of the drug accompanied by instructions to take

it as prescribed do no more than enable, authorize, and approve a drug for the

patient’s use. Under Annab, enabling, authorizing, and approving another’s use does

not constitute use by the government for purposes of section 101.021(2). See id.

      The nurse’s instruction as to the use of the rolling IV pole is the same. She

enabled, authorized, and approved Contreras’s use of the pole in the same way that

a prescribing physician enables, authorizes, and approves the use of a prescription

medicine or medical device. Contreras complains that she should have left his walker

in the barbershop or else provided him with something other than a rolling IV pole.

The Supreme Court has held that this complaint—the failure to provide an

alternative type of medical treatment—is not a use of tangible personal property. See

Clark, 923 S.W.2d at 585 (failure to prescribe and administer injectable drug instead

of its oral form was allegation of non-use of alternative medical treatment and

therefore did not satisfy section 101.021(2)’s use requirement).

      Construing the facts in Contreras’s favor, as we must, we hold that MD

Anderson did not waive its sovereign immunity under the circumstances of this case.

The trial court therefore erred in denying MD Anderson’s jurisdictional plea.




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                                  CONCLUSION

      We reverse the trial court’s order denying MD Anderson’s plea to the

jurisdiction and render a judgment dismissing the suit for lack of jurisdiction.




                                               Gordon Goodman
                                               Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




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