## NO. 05-15-00246- CV


## In **the F ifth**  **Co urt**  **of Appea ls**  **Dallas ,**  **T ex**  **as**

The University of Texas Southwestern Medical Center, Appellant, vs. Verba Klingsick, Diana Klingsick and Jana Carrasco, Individually and on Behalf of the Estate of William R. Klingsick, Deceased , Appellees.
On Appeal from the 95 TH Judicial District of Dallas County, Texas Trial Court Cause No. DC
- 12
- 07946 The Honorable Ken Molberg , Judge Presiding



## APPELLANT’S BRIEF

KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
KARA KENNEDY Chief, Tort Litigation Division JASON WARNER Assistant Attorney General State Bar No.: 24028112 Tort Litigation Division, MC 030 P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 (512) 463

- 2197 FAX: (512) 457

- 4430 jason.warner@texasattorneygeneral.gov Counsel for Appellant

ORAL ARGUMENT REQUESTED ACCEPTED 05-15-00246-CV FIFTH COURT OF APPEALS

DALLAS, TEXAS 4/30/2015 4:26:18 PM

LISA MATZ CLERKIDENTITY OF PARTIES & COUNSEL Appellant certifies that the following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this lawsuit: Presiding trial judge: Honorable Ken Molberg Judge, 95th District Court George L. Allen, Sr. Court Bldg. 600 Commerce Street, Box 640 6th Floor New Tower Dallas, TX 75202 214.653.6609

– phone Appellant : The University of Texas Southwestern Medical Center Attorney of Record: Jason Warner Assistant Attorney General State Bar No. 24028112 Tort Litiga tion Division, MC 030 P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 (512) 463

- 2197 FAX: (512) 457

- 4430 jason.warner@texasattorneygeneral.gov Appellees : Verba Klingsick, Diana Klingsick and Jana Carrasco, Individually and on Behalf of the Estate of William R. Klingsick, Deceased Attorney of Record: Andrew B. Sommerman S OMMERMAN & Q UESADA , L.L.P. 3811 Turtle Creek Boulevard, Suite 1400 Dallas, TX 75219

- 4461 214.720.0720

- phone 214.720.0184

- fax State Bar No. 18842150 andrew@textrial.com iiOther Parties To The Underlying Suit, But Not A Party To This Appeal: Southwest Transplant Alliance Attorney of Record: Gary Lykins T HE B ERRY F IRM , P.L.L.C. 1412 Main Street, Suite 2300 Dallas, TX 75202 214.915.9806

– direct no. 214.752.8250

– fax State Bar No. 12715600 lykins@berryfirm.com
Vitrolife, Inc. Attorney of Record: Tim Ryan S CHELL C OOLEY LLP 15455 Dallas Parkway, Suite 550 Addison, TX 75001 (214) 665

- 2005

– phone (214) 754

- 0060

– Fax State Bar No. 17483600 tryan@schellcooley.com

iiiREQUEST FOR ORAL ARGUMENT Pursuant to rules 39.1 and 39.7 of the Texas Rules of Appellate Procedure, Appellant hereby requests oral argument in this case.

ivTABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES & COUNSEL

................................ ................................ . ii REQUEST FOR ORAL ARGUMENT

................................ ................................ ... iv
TABLE OF CONTENTS

................................ ................................ ........................... v
INDEX OF AUTHORITIES

................................ ................................ ................... vii
STATEMENT OF THE CASE

................................ ................................ ............... xii
STATEMENT OF JURISDICTION

................................ ................................ ...... xiv
ISSUES PRESENTED

................................ ................................ ............................. xv
APPELLANT’S BRIEF

................................ ................................ ............................. 1
STATEMENT OF FACTS

................................ ................................ ........................ 2
A. Introduction

................................ ................................ ................................ ..... 2 B. Organs and Medication Provided by STA

................................ ....................... 3 C. STA Solely Responsible to Preservation Solution Mixing and Preparation

................................ ................................ ................................ ....... 3 D. Mr. Klingsick’s Transplant

................................ ................................ .............. 5 E. Preservation Solution Questioned

................................ ................................ ... 6 F. STA Acknowledgement of the Breach of the Standard of Care

................... 10
SUMMARY OF THE ARGUMENT

................................ ................................ ...... 12
ARGUMENT

................................ ................................ ................................ ........... 13
A. Standard of Review & Sovereign Immunity

................................ ................ 13

vI SSUE I: D ID THE TRIAL COURT COMMIT REVERSIBLE ERR OR IN DENYING UTSWMC’ S PLEA TO THE JURISD ICTION WHEN A PPELLEES DID NOT GIVE UTSWMC FORMAL NOTICE OF THE IR CLAIMS AND UTSWMC DID NOT HAVE ACTUAL NOTICE OF THEIR CLAIMS WITHIN SIX MONTHS FR OM THE DATE OF INCID ENT ?

............................. 16
A. Quick Answer

................................ ................................ ............................... 16 B. The Statute: TTCA Notice Requirement for a Waiver of Sovereign Immunity

................................ ................................ ................................ ....... 16 C. The Texas Supreme Court & Actual Notice

................................ ................. 17 D. McQueen Opinion & Actual Notice in Health Care Liability Cases

............ 20 E. UTSWMC Did Not Have the Required “Subjective Signal”

........................ 21 F. Conclusion

................................ ................................ ................................ .... 24
ISSUE II: D ID THE TRIAL COURT COMMIT REVERSIBLE ERR OR IN DENYING UTSWMC’ S PLEA TO THE JURISD ICTION WHEN NO TANGI BLE PERSONAL PROPERTY WA S NEGLIGENTLY USED BY ITS EMPLOYEES DURING THE ALLEGED NEGLIGENT ME DICAL TREATMENT IN QUESTI ON ?

................................ ................................ . 25
A. Quick Answer

................................ ................................ .......................... 25 B. TTCA §101.021’s Waiver of Sovereign Immunity Requirements

......... 25 C. Appellees’ Negligent Use Allegations Concerning Mr. Klingsick’s Lung Transplant

................................ ................................ ....................... 26 D. The TTCA Waiver of Immunity Requires a Negligent Use of Tangible Personal Property

................................ ................................ ..... 28 E. Appellees’ True Allegations Fail to Assert a Waiver of Sovereign Immunity

................................ ................................ ................................ . 32 F. Conclusion

................................ ................................ ............................... 33
PRAYER

................................ ................................ ................................ ................. 3 3
CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 35
CERTIFICATE OF SERVICE

................................ ................................ ......... 35, 36
APPENDIX

................................ ................................ ................................ ............. 37

viINDEX OF AUTHORITIES
CASES PAGE
Arnold v. Univ. of Texas Southwestern Med. Ctr. , 279 S.W.3d 464 (Tex. App.

— Dallas 2009, no pet.).

................................ ..... 29

- 31 Bourne v. Nueces County Hosp. Dist., 749 W.W.2d 630 (Tex. App.

— Corpus Christi 1988, writ denied).

................................ ................................ ................................ .......... 18 Cathey v. Booth , 900 S.W.2d 339 (Tex. 1995).

................................ ................................ ........ 18, 24 City of Corsicana v. Stewart , 249 S.W.3d 412 (Tex. 2008)

................................ ................................ ......... 26, 41 City of Dallas v. Carbajal , 324 S.W.3d 537 (Tex. 2010)

................................ ................................ ... 19, 24, 29 City of Garland v. Rivera , 146 S.W.3d 334 (Tex. App.

— Dallas 2004, no pet.).

................................ ........... 31
C ity of Hou s ton v. Harris , 192 S.W.3d 167 (Tex. App.

– Houston [14 th Dist.] 2006, no pet.)

....................... 26 City of North Richland Hills v. Friend , 370 S.W.3d 369 (Tex. 2012)

................................ ................................ ................ 14 Colquitt v. Brazoria County , 324 S.W.3d 539 (Tex. 2010).

................................ ................................ ............... 17 County of Cameron v. Brown , 80 S.W.3d 549 (Tex.2002)

................................ ................................ ................... 14 Dallas Area Rapid Trans. v. Edwards , 171 S.W.3d 584 (Tex. App.

— Dallas 2005, pet. denied )

................................ ..... 30

viiDallas Area Rapid Transit v. Whitley , 104 S.W.3d 540 (Tex. 2003).

................................ ................................ ........ 26, 30 Dallas Cty. MHMR v. Bossley , 968 S.W.2d 339 (Tex. 1998)

................................ ................................ ................ 26 Dung Ngoc Huynh v. Washington , 339 S.W.3d 309 (Tex. App.

— Dallas 2011, no pet.).

................................ .... 14 , 15
El Paso MHMR v. Crissman , 241 S.W.3d 582 (Tex. App.

— El Paso 2007, no pet.)

................................ .......... 30 Franka v. Velasquez , 332 S.W.3d 367 (Tex. 2011)

................................ ................................ ......... 14 , 15 Gipson v. City of Dallas , 247 S.W.3d 465 (Tex. App.

— Dallas 2008, pet. denied)

................................ ..... 29 Griffin v. Hawn , 341 S.W.2d 151 (Tex. 1960)

................................ ................................ ................ 13
Harris Coun ty v. Cabazos , 177 S.W.3d 105 (Tex. App.

-- Houston [1st Dist.] 2005, no pet.)

........................ 14 Hosner v. DeYoung , 1 Tex. 764 (1847)

................................ ................................ ................................ . 13 Kamel v. Univ. of Texas Health Sci. Ctr. at Houston , 333 S.W.3d 676 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied)

................. 30 Kerrville State Hospital v. Clark, 923 S.W. 2d. 582 (Tex. 1996)

................................ ................................ ....... 29 , 30
Mission C.I.S.D. v. Garcia , 253 S.W.3d 653 (Tex. 2008)

................................ ................................ ......... 14 , 15 Putthoff v. Ancrum , 934 S.W.2d 164 (Tex. App

. — Fort Worth 1996, writ denied)

............................. 17 viiiRedden v. Denton Cty , 335 S.W.3d 743 (Tex. App.

– Fort Worth 2011, no pet. h.)

.......................... 14, 30 San Antonio State Hosp. v. Cowan, 128 S.W.3d 244 (Tex. 2004).

................................ ................................ ............... 28 Somervell County Healthcare Authority v. Sanders, 169 S.W.3d 724 (Tex. App.

- Waco 2006, no pet.).

................................ ............. 30
State v. Tennison , 509 S.W.2d 560 (Tex. 1974)

................................ ................................ ................ 26 Streetman v. Univ. of Tex. Health Sci. Ctr. at San Antonio , 952 S.W.2d 53 (Tex.App.

-- San Antonio 1997, writ denied)

.............................. 17 Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex. 2004).

................................ ................................ ....... 18, 24 Tex. Dept. of Public Safety v. Pe tta , 44 S.W.3d 575 (Tex. 2001)

................................ ................................ .................. 14 Tex. Dept. of Trans. v. Lueck , 290 S.W.3d 876 (Tex. 2009)

................................ ................................ ......... 13, 15 Tex. Dept. of Transp. v. Jones , 8 S.W.3d 636 (Tex. 1999).

................................ ................................ ................... 14 Texas A&M Univ. v. Bishop , 156 S.W.3d 580 (Tex. 2005)

................................ ................................ ................ 30 Texas A&M Univ. v. Koseoglu , 233 S.W.3d 835 (Tex. 2007)

................................ ................................ ................ 14 Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001).

................................ ................................ .... 15, 28, 29

ixTexas Dept. of Crim. Just. v. Hawkins , 169 S.W.3d 529 (Tex. App.

— Dallas 2005, no pet.)

................................ ..... 30 , 31 Texas Dept. of Parks & Wildlife v. Miranda , 133 S.W.3d 217 (Tex. 2004)

................................ ................................ ......... 13 , 14 Texas Dept. of Transp. v. Able , 35 S.W.3d 608 (Tex. 2000)

................................ ................................ .................. 26
Texas Tech Health Sci. Ctr. v. Ward , 280 S.W.3d 345 (Tex. App.

– Amarillo 2008, pet. denied).

................................ . 29
Timmons v. Univ. Med. Ctr. , 331 S.W.3d 840 (Tex. App.

— Amarillo 2011, no pet.)

................................ ........ 17
TNRCC v. IT

- Davy , 74 S.W.3d 849 (Tex. 2002)

................................ ................................ .................. 13 Univ. of Tex. Health Sci. Ctr. v. Schroeder , 190 S.W.3d 102 (Tex. App.

-- Houston [1st Dist.] 2005, no pet.)

........................ 30 Univ. of Texas Health Sci. Ctr. at Houston v. McQueen , 431 S.W.750 (Tex. App.

— Houston [14th Dist.] 2014, no pet.)

................... 20, 24 Univ. of Texas M.D. Anderson Cancer Ctr. v. King , 329 S.W.3d 876 (Tex. App.

— Houston [14th Dist.] 2010)

........................... 29, 30 Univ. of Texas Medical Branch at Galveston v. Tatum , 389 S.W.3d 457 (Tex. App.

— Houston [1st Dist.] 2012, no pet.

........................ 30 Univ. of Texas Medical Branch at Galveston v. York , 871 S.W.2d 175 (Tex. 1994 )

................................ ................................ ................ 28 Univ. of Texas Medical Branch v. Kai Huo Qi, 402 S.W.3d 374 (Tex. App.

-- Houston [14th Dist.] 2013, no p et.)

.............. 29, 30 Univ. of Texas Southwestern Med. Ctr. v. Arancibia , 324 S.W.3d 544 (Tex. 2010)

................................ ................................ ................ 19

xUniv. of Texas Southwestern Med. Ctr. v. Loutzenhiser , 140 S.W.3d 351 & FN 5 (Tex. 2004)

................................ ................................ ... 15

STATUTES
Tex. Civ. Prac. & Rem Code §51.014(a)(8).

................................ ......................... xiv Tex. Civ. Prac. & Rem. Code Ann §§ 101.001(2) & 101.021

................................ 28 Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 & 101.022

................................ ... 26 Tex. Civ. Prac. & Rem. Code § 101.101.

................................ ......................... 15, 17 Tex. Civ. Prac. & Rem.Code § 101.001(3)(A);

................................ ....................... 15 Tex. Educ. Code Ann. § § 65.02(a)(7) & 74.101 (West 2014)

................................ 15 Tex. Govt. Code Ann. §311.034

................................ ................................ ............. 17

xiS TATEMENT OF THE CASE
Nature of the Case: This is a health care liability suit brought under the Wrongful Death Statute, Chapter 71(a), the Texas Survival Statute, Chapter 71(b), the Medical Liability Act, Chapter 74, and the Texas Tort Claims Act, Chapter 101, of the Texas Civil Practice and Remedies Code. William R. Klingsick underwent a lung transplant surgery at UTSWMC on or about July 23, 2010, and died two days later as a result of complications from the transplant. The procurement and implantation of donor lungs into Mr. Klingsick were done by Southwest Transplant Allian ce (STA) and a faculty cardiothoracic surgeon at The University of Texas Southwestern Medical Center (UTSWMC). Appellees Klingsick complain of negligent healthcare and treatment provided by UTSWMC in connection with the preservation solution that was mixe d and provided by STA and used for the transportation of the lungs implanted in Mr. Klingsick. UTSWMC filed a plea to the jurisdiction, asserting Appellees failed to provide timely notice of their claims under §101.101 and that no use of tangible personal property caused injury to Appellees under §101. 021 of the TTCA. As a result, t heir suit was barred as there is no waiver of sovereign immunity, depriving the trial court of subject

- matter jurisdiction. The trial court denied the plea

. Parties in the Tri al Court: The University of Texas Southwestern Medical Center, Appellant, wa s the Defendant in the trial court. The Klingsicks , Appellee s , were the Plaintiff s
. ( CR 1518

- 30)

. Trial Court: The 95 th Judicial District Court of Dallas County, Texas, The Honor able Ken Molberg, Presiding Judge

. ( CR 1301)

. xiiTrial Court Disposition: An Order denying UTSWMC’s plea to the jurisdiction was entered on March 1, 2015 (CR 2459

- 60) (App. A)

. Abbreviations: Throughout this Bri ef, the original Clerk’s Record will be cited as “CR,” and the Reporter’s Record from the hearing of February 13, 2015 will be cited as “RR.” Where applicable, documents located in the Appendix will be cited to t he record and the appendix as “A pp.”

xiiiSTATEMENT OF JURISDICTION This Court has jurisdiction over this appeal pursuant to Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code, which provides an interlocutory appeal from an order of a district court that denies a plea to the jurisdiction filed by

a governme ntal unit. Tex. Civ. Prac. & Rem Code §51.014(a)(8) (West 2015) (App.
B )

. This appeal is further accelerated pursuant to the Texas Rules of Appellate Procedure. Tex. R. App. P. 28.1.

xivISSUE S PRESENTED
I SSUE I: D ID THE TRIAL COURT COMMIT REVERSIBLE ERR OR IN DENYING UTSWMC’ S PLEA TO THE JURISD ICTION WHEN A PPELLEES DID NOT GIV E UTSWMC FORMAL NOTICE OF THE IR CLAIMS AND UTSWMC DID NOT HAVE ACTUAL NOTICE OF THEIR CLAIMS WITHIN SIX MONTHS FROM THE DATE OF INCIDENT ?
I SSUE II: D ID THE TRIAL COURT COMMIT REVERS IBLE ERR OR IN DENYING UTSWMC’ S PLEA TO THE JURISD ICTION WHEN NO TANGI BLE PERSONAL PROPERTY WAS NEGLIGENTLY USED BY ITS EMPLOYEE S DURING THE ALLEGED NEGLIGENT ME DICAL TREATMENT IN Q UESTION ?

xv

## NO. 05
- 15
- 00246
- CV


## In **t h**  **e Fifth**  **C o**  **urt o**  **f A**  **p p**  **e a**  **ls Dallas**  **, T**  **ex a**  **s**

The University of Texas Southwestern Medical Center, Appellant, vs . Verba Klingsick, Diana Klingsick and Jana Carrasco, Individually and on Behalf of the Estate of William R. Klingsick, Deceased , Appellee s.
On Appeal from the 95 TH Judicial District of Dallas County, Texas Trial Court Cause No. DC
- 12
- 07946 The Honorable Ken Molberg , Judge Presiding



## APPELLANT’S BRIEF

TO THE HONORABLE FIFTH COURT OF APPEALS: Pursuant to Rule 38.1 of the Texas rules of Appellant Procedure, Appellant
The University of Texas Southwestern Medical Center (“UTSWMC”), in the above styled and numbered appeal, files this Appellant’s Brief and would respectfully show that the Court should reverse the order denying Appellant’s Plea to the Jurisdiction and render ju dgment dismissing the case against Appellant for lack of subject matter jurisdiction.

1STATEMENT OF FACTS
A. Introduction On July 23, 2010, William Klingsick underwent a bilateral lung transplant surgery at UTSWMC and died two days later due to complic ations from the attempted transplant. (CR 2226

- 32, 2234). Dr. Matthias Peltz, a faculty cardio

thoracic surgeon on UTSWMC, removed the lungs from the donor and participated in the implantation procedure of Mr. Klingsick. (CR 2226

- 2232, 2239). Mr. Kling sick suffered several different complications during the surgery, including graft dysfunction problems and/or reperfusion injuries, which can develop in up to 25 percent of lung transplant patients. (CR 2276

- 77). Appellees allege that these injuries were caused by the pH level of the fluid used to preserve the donor lungs during transportation was not maintained optimally. (CR 1518

- 30 ). This allegedly resulted in damage to the donor lungs that led to injuries and the death of Mr. Klingsick. (CR 1518

- 30 ). They also allege that UTSWMC had actual notice of their claims within the six (6) months of the implantation surgery through the alleged knowledge Dr. Peltz had in January 2011 concerning how STA mixed t he lung preservation solution at a subsequent lung p rocurement. ( CR 1518

- 30; RR 17

- 25, 41).

2B
. Organs and Medication Provided by STA UTSWMC contracted with STA, an organ procurement organization, to provide organ procurement services for transplant candidates. (CR 642

- 54 ). Within the contract, UTSWMC and STA agreed that “Southwest Transplant Alliance will provide qualified medical personnel with specialized training in transplantation...and organ recovery and preservation, to perform organ procurement services.” (CR 646 ). UTSWMC and STA further agreed that “Southwest Transplant Alliance will provide medications, supplies, or devices for the medical evaluation...and management of the cadaveric donor.” (CR 646, 1155

- 56 ). Dr. Marlon Levy, Medical Director of STA, testified that pursuant to the Transplant Agreement, STA was responsible for bringing and preparing all organ transport solutions used for organ procurement. (CR 1128 ). Dr. Levy additionally testified that it was reasonable for UTSWMC and its employees to rely on STA employees to prepare all organ transport solutions at the donor procurement hospital

. (CR 1396 ).
C
. STA Solely Responsible to Preservation Solution Mixing and Preparation James Cutler was the CEO of STA at the time of the lung procurement and transplant made the basis of this lawsuit . (CR 1396 ). The testimony of Mr. Cutler

3establishes, in relevant part, the Organ Recovery Department of STA was in charge of mixing transplant solutions and the direct person responsible for such was Tammie Peterson, Director of Organ Recovery. (CR 1379 ). His testimony also
establishe d that the individuals who actually did the mixing of preservation solution s are the surgical coordinators that worked under Tammie Peterson. (CR 1379

– 80 ). Tammie Peterson was the person who was in charge of making sure the surgical coordinators were mixing the preservation solution correctly. (CR 1381 ). As Mr. Cutler also described in his testimony: In this instance a policy was in place and the concentration of Tham changed. We didn't catch that change in concentration and as a result we made a mistake and didn't change our policy and retrain our staff to the administration of the changed dosage and our organization admitted, you know, we made a mistake in that regard. (CR 1382 ). Mr. Cutler also testified , “the dose [of TH AM] changed one time. We [STA] didn't catch that change. We [at STA] didn’t incorporate that change into our policy and procedure and because we didn’t, we made a mistake.” (CR 1382 ). Mr. Cutler also testified that “[b]ecause when informed of the change in the dosage, Tammie Peterson did not make the appropriate changes in the policy and practice.” (CR 1389 ). In his deposition testimony, Mr. Cutler additionally acknowledged that STA “takes responsibility for having missed the initial notification of the dosage

4concentration and not incorporating that” into STA’s policy. ( CR 1420 ). He also acknowledged that STA regrets that “a mistake was made,” tha t “it wasn’t caught before [ patients] got their transplant,” and that “it could have been caught and it

wa sn’t caught.” ( CR 1421 ). Mr. Cutler’s testimony also describes that it was the STA’s responsibility to make sure it had a correct policy and procedure. ( CR 1394

– 95 ). Mr. Cutler likewise testified that employees of STA that mix ed the solution
in the field were instructed and trained by STA to follow STA’s specific policies and procedures and not the package inserts contained with the containers of the solutions

. ( CR 1434

– 35 ).
D
. Mr. Klingsick’s Transplant On or about July 23, 2 010, Tina Reynolds, STA surgical coordinator, in conformance with the terms of the transplant agreement between STA and
UTSWMC , traveled to the lung donor site to transport and prepare the lung preservation solution for the lungs that were implanted in Mr. Klingsick. (CR 1729,
1897

– 98, 1902 ). Tina Reynolds testified she did not follow the instructions on the bottle of THAM or the bag of Perfadex to mix the solutions. (CR 1897

- 98, 1908

- 10). Instead, Ms. Reynolds testified she mixed the preservation solu tion according to STA’s protocol for this lung procurement and transplant. (CR 1897

- 98, 1908

- 10 ). She testified she prepared the transport solution to flush the lungs according to

5STA’s policy and flushed the lungs with the solution. (CR 1897

– 98, 1908, 1 910,
1914 ). Dr. Matthias Peltz, a faculty cardiothoracic surgeon at UTSWMC, was both
the procuring surgeon involved in retrieving the donor lungs and the surgeon that participated in implanting the lungs into Mr. Klingsick. (CR 2239, 2269 ). Importantly, he did not mix the lung preservation fluid in question. (CR 2274, 974

- 75 ; Exh. O, Pg. 150:6

– 153:18; Exh. P, Pg. 329:15

– 33 0:4; 331:22

– 332:2). During Mr. Klingsick’s surgery on July 23, 2010, the implanted lungs were procured and transported in the pre serv ation solution mixed and prepared by STA. (CR 763)

. Complications developed during the procedure and the preserved lungs could not be properly implanted into Mr. Klingsick. (CR 765

– 68, 839 ). He subsequently died from complications f rom this surgery o n July 25, 2010. (CR 839, 2234 ). Dr. Peltz testified that he did not know at the time of Mr. Klingsick’s surgery that there were any issues with the pH level of the preservation f luid that Ms. Rey n olds mixed and prepared to transport the donor lungs . (CR 2 274

– 75, 1900

– 01 ).
E
. Preservation Solution Questioned On January 10, 2011, while performing a lung transplant for Baylor Medical
Center and one of its patients , Dr. Peltz testified he decided to test the pH level of some residual preservation fluid using a blood

- gas analyzer after that patient’s

6transplantation. (CR 2249

- 50 ). He testified his concern was that the preservation solution may have been too acidic, having a pH level below the optimal rang e for lung preservation, because the metabolism of the lungs produces more acid over
time . (CR 2251

- 52 ). After the test was done , Dr. Peltz testified the blood

- gas analyzer at Baylor Medical Center returned an out

- of range result, meaning that the
device could not register the pH level of the sample. (CR 2251 ). Dr. Peltz testified
he was not sure how the blood

- gas analyzer was calibrated and chalked up the out

of

- range reading as possibly being too low (too acidic) , below the optimal pH level
of 7.4 , no t above . (CR 2251

- 52 ). He testified that the out

- of

- range reading was not indicative of anything wrong. (CR 2252 ). And although he later mentioned this reading in passing to his colleagues at UTSWMC, h e testified that the out

- of

- range
result did not moti vate him to pursue the matter further as “[t]here was no reason to believe there was anything incorrect about the way the preservation solution was made.” (CR 2252). His testimony was he had no reason to believe that there was anything wrong with the prese rvation solution being used or how it was mixed and prepared by STA. (CR 2252, 2276 ). On or about January 25, 2011, Dr. Peltz went on a lung procurement for a patient on behalf of UTSWMC. (CR 691

– 94, 973, 2257 ). He testified that upon return and during the transplant of the lungs on January 26, 2011, he decided to send

7a sample of the preservation solution to the hospital lab to test the pH level of the solution. (CR 973

– 74, 2239

– 2256 ). The result of that test indicate d the pH level to be 8.7, which was alkalotic, or higher , than the optimal level of 7.4. (CR 973

– 75, CR 2413

– 15 ). The following day on January 27, 2011, Dr. Peltz testified that he went on another lung procurement for another patient at Baylor Medical Center and while removing th e donor lungs, he observed the STA surgical coordinator mixing and preparing the Perfadex and THAM. (CR 978 ). He testified that he observed the STA employee mixing the Perfadex with a bottle THAM that was smaller than he had seen in the past. (CR 978 ). Dr. Peltz asked to see the bottle and pointed out to the STA employee that the manufacturer’s instructions directed that 0.3 ml of THAM be mixed into each liter of Perfadex. (CR 2260 ). The STA employee informed Dr.
Peltz that he had been trained and i nstructed by STA to add 9.5 ml of THAM to each bag of Perfadex. (CR 691

– 94, 2260 ). Dr. Peltz testified he informed the STA employee that he should follow the manufacturer’s instructions instead of the instructions provided by STA and proceeded with the l ung procurement. (CR 978 ). After his completion of the lung transplant on January 27, 2011, Dr. Peltz notified Tammie Peterson, the STA Director of Organ Recovery, of his discovery
that the preservation solution mixture was being improperly prepared by ST A

8employees and suggested that STA follow the manufacturer’s instructions. (CR 691

– 94, 1101

– 03, 2263 ). Dr. Peltz also asked STA how long it had been using bottles
of THAM with instructions that 0 .3 ml rather than 9.5 ml be mixed with the Perfadex. (CR 691

– 94, 1101

– 03, 2263 ). Dr. Levy, STA’s Medical Director, confirmed in his testimony that on January 27, 2011, STA was informed by UTSWMC that STA staff were incorrectly mixing the lung preservation solution during a lung procurement procedure. (CR 115 5 ). On January 28, 2011, Janel Tedesco, the UTSWMC Administrative Transplant Director, emailed STA CEO Jim Cutler requesting that the mixing error be “addressed in a formal fashion at STA for performance improvement.” (CR 1104

- 05 ). On February 17, 2011 , STA completed an investigation and acknowledged a mixing error. (CR 673

– 89, 875 ). At this time, UTSWM C did not know that Mr. Klingsick was a patient that could have been affected by the mixing error. (CR 673

- 89 ). On July 13, 2011, almost six mont hs after UTSWMC requested an investigation, STA informed UTSWMC that it had confirmed that the wrong amount of THAM was mixed by STA for 22 of 31 transplant recipients from October 2009 to February 2011. (CR 660

– 61, 673

– 77, 681

- 85 ). As Mr. Klingsick ’s lung procurement and transplant occurred during the dates provide by STA, UTSWMC

9subsequently identified him as a patient who was possibly affected by STA’s preservation solution mixing error . (CR 696

- 97 ). On or about June 12, 2012, Appellees Klingsi ck sent their first written notice of any claim of liability to UTSWMC. (CR 699

- 702 ).
F
. STA Acknowledgement of the Breach of the Standard of Care For lung procurements and transplants done by STA between October 2009 and February 2011, which included Mr. Klingsick’s lung transplant, former STA
CEO Cutler specifically testified that STA took responsibility for having the incorrect dosage in the preservation solution for the lungs received by Mr. Cummings and for failing to find this error. (CR 1421 ). P atricia Niles, the current President and CEO of STA, also acknowledged that STA breached the standard of
care in over

- buffering the Perfadex, that STA personnel were improperly mixing preservation fluid, that there are allegations that such error caused in jury and death
to the affected lung transplant recipients, and that at all times relevant to the issues
in this case , STA did not notify UTSWMC of the dosage change. (CR 1747

– 51, 1758, 1777

– 79, 1781 ). These acknowledgements were reaffirmed by the testi mony of other key STA officials. (CR 1824, 1827

– 28, 1831, 2098

– 99, 2103, 2108,
2152 ).

10In addition, Dr. Levy testified that the incorrect mixing of transplant fluid was a result of STA employees following STA policy. (CR 1134

– 35, 1137

– 38, 1141,
1157 ). Dr. Levy explained that STA’s faulty policy gave rise to the lawsuit, testifying:
192 11 Q. (By Mr. Giberson) Do you agree that all of these lawsuits 12 arise from a single occurrence

– STA’s routine and 13 repetitive adherence to their faulty (not updated) 14 written policy and protocol? Do you agree with that 15 or not? 16 MR. LYKINS: Objection, form. 17 A. See, I think the root cause was the policy 18 wasn’t changed when it should have been. 19 Q. Ok ay. 20 A. And

- - 21 MR. LYKINS: You’ve answered his 22 question. Wait for a question. 23 Q. I want to see if you agree with this 24 statement: There is no evidence that at any time of 25 any of the transplants made the basis of these
193 1 lawsuits such individuals who actually mixed the 2 solutions for the transplants in question did so in a 3 manner other than consistent with the then existing 4 STA written policy and protoco l. 5 Do you agree with that? 6 MR. LYKINS: Objection, form. 7 Subject to that, you may answer. 8 A. I do agree 9 Q. Would you agree with the statement that STA 10 personnel, who actually mixed the solution used with 11 orga n recovery, were trained to and did follow the 12 then existing written STA policy and protocol
1113 regarding how much THAM to mix with Perfadex? Do you 14 agree with that? 15 A. I do agree. (CR 1160 ). Accordingly, based on the undisputed testimony of STA officials, STA is the one who was solely responsible for preservation solution mixing error that occurred in the lung procurement for Mr. Klingsick

. SUMMARY OF ARGUMENT In this appeal, the trial court erred in denying UTSWMC’s Plea to th e Jurisdiction based on sovereign immunity. Under the TTCA, Appellees are required to give notice of their claims within six (6) months of the date of the incident in question for there to be a waiver of UTSWMC’s immunity. Additionally under the TTCA, the limited waiver only applies to claims that involve some negligent use of tangible personal property by a UTSWMC employee. In the case of Mr. Klingsick’s lung transplant, Appellees did not give formal notice of their claims within six (6) months of his tra nsplant procedure on July 23, 2010. During the six months after this procedure, UTSWMC also did not have the subjective awareness of fault to provide it actual notice of Appellees’ claims. In
addition , the only tangible personal property alleged to have ca used harm to Mr. Klingsick and Appellees was the lung preservation solution us ed to transport his donor lungs, which was not mixed or prepared by a UTSWMC employee. That

12solution was mixed and prepared by a STA employee. Consequently, Appellees claims do not waive UTSWMC’s sovereign immunity under the TTCA. This failure depr ived the trial court of subject

- matter jurisdiction, requiring it to dismiss Appellees’ suit in its entirety as UTSWMC’s Plea
to the J urisdiction requested. As a result, the trial court ’s order denying UTSWMC’s plea should be reversed and judgment should be rendered in UTSWMC’s favor.
ARGUMENT
A. Standard of Review & Sovereign Immunity
It is a fundamental rule of Texas law that the State of Tex as, its governmental
units , and its offi cers may not be sued without the express consent of the Texas legislature. Tex. Dept. of Trans. v. Lueck , 290 S.W.3d 876, 880 (Tex. 2009); Texas Dept. of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004); TNRCC v.
IT

- Davy , 74 S.W.3d 849, 853

- 54 (Tex. 2002); Griffin v. Hawn , 341 S.W.2d 151 (Tex. 1960); Hosner v. DeYoung , 1 Tex. 764 (1847). A trial c ourt’s jurisdiction is conferred by th e Constitution and the statutes and a trial court without jurisdiction cannot render a valid judgment. Miranda , 133 S.W.3d at 226. Whether a trial court
had subject

- matter jurisdiction is a question of law and on appeal is reviewed under
the de novo standard. See id

. at 228 ; IT

- Davy , 74 S.W.3d at 855 . These are long

standing, well

- established principle s of Texas law.

13A lack of a waiver of a State governmental unit’s sovereign immunity deprives
a trial court of subject

- matter jurisdiction. Miranda , 133 S.W.3d at 225

- 26; Tex. Dept. of Transp. v. Jones , 8 S.W.3d 636, 639 (Tex. 1999). At the trial court, i t is the plaintiff’s burden to prove there is a waiver of sovereign immunity. Miranda , 133
S.W.3d at 226 ; County of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex.2002)

. If a plaintiff’s allegations and the jurisdictional evidence negate sub ject

- matter jurisdic tion, the trial court must dismiss the suit. Texas A&M Univ. v. Koseoglu , 233 S.W.3d 835, 840 (Tex. 2007); Miranda , 133 S.W.3d at 226; County of Cameron v.
Brown , 80 S.W.3d 549, 556

– 57 (Tex.2002); see also City of North Richland Hills v.
Friend , 370 S.W.3d 369, 373 (Tex. 2012); Tex. Dept. of Pub. Safety v. Petta , 44 S.W.3d 575, 577 & 580 (Tex. 2001); Harris County v. Cabazos , 177 S.W.3d 105,
111

– 12 (Tex. App.

-- Houston [1st Dist.] 2005, no pet.)(enlarging the scope of the waiver of sovereign immunity under the TTCA through artful pleading is not permitted). Concerning tort actions and actions under the common law, the State of Texas, even if it has committed tortious acts, is immune from suit unless it gives its consent
to be sued. Miranda , 133 S.W.3d at 224; see also Franka v. Velasquez , 332 S.W.3d 367, 369 (Tex. 2011); Mission C.I.S.D. v. Garcia , 253 S.W.3d 653, 659 (Tex. 2008);
see also Dung Ngoc Huynh v. Washington , 339 S.W.3d 309, 311 (Tex. App.

— Dallas

142011, no pet.). Governmental uni ts of the State, such as Appellant UTSWMC, enjoy the protection afforded by this sovereign immunity. Lueck , 290 S.W.3d at 880; Univ. of Texas Southwestern Med. Ctr. v. Loutzenhiser , 140 S.W.3d 351, 353

- 54 & FN 5 (Tex. 2004)(acknowledging that UTSWMC is a S tate governmental unit under the TTCA). 1 The Texas Tort Claims Act (TTCA) is the only statute that provides a potential waiver of this immunity and is applicable in limited circumstances, subject to further limitations, exclusions, and exceptions. Tex. Ci v. Prac. & Rem. Code Ann. §§ 101.001 et seq. (West 2015). This Court must look to the terms of the TTCA to determine the scope of the waiver and then consider the particular facts of the case to determine whether it comes within that scope. Texas Dept. of Criminal Justice v.
Miller , 51 S.W.3d 583, 586

- 87 (Tex. 2001). And unless and until the Legislature states otherwise, there are absolutely no other waivers of sovereign immunity which can arise against a State agency for tort causes of action. Franka , 332 S.W.3d at 369;
Garcia , 253 S.W.3d at 659; Washington , 339 S.W.3d at 311. In this case, Appellees fail to meet the requirements for waiver under TTCA §§ 101.101 (notice) and 101.021 (use of tangible personal property) . The true allegations of Appellees and the evidence clearly negates a waiver of Appellant

1 See Tex. Civ. Prac. & Rem.Code § 101.001(3)(A); Tex. Educ. Code Ann. §§ 65.02(a)(7) & 74.101 (West 2014) (App. C, D & E) (UTSWMC is a component of the University of Texas System and under the control and management of the Board of Regents). 15UTSWMC’s sovereign immunity.
ISSUE I: D ID THE TRIAL COURT COMMIT REVERSIBLE ERR OR IN DENYING UTSWMC’ S PLEA TO THE JURISD ICTION WHEN A PPELLEES DID NOT GIVE UTSWMC FORMAL NOTICE OF THE IR CLAIMS AND UTSWMC D ID NOT HAVE ACTUAL N OTICE OF THEIR CLAIMS WITHIN SIX MONTHS FROM THE DATE OF INC IDENT ?
A. Quick Answer Yes. In this case, Appellees did not give formal notice of their claims within six (6) months of his transplant procedure on July 23, 2010. In addition, d uring the six months after Mr. Klingsick’s procedure, UTSWMC did not have the subjective
awareness of fault required to provide it with actual notice of Appellees’ claims. Accordingly, the trial court should have dismissed Appellees’ suit agains t
UTSWMC.
B. The Statute: TTCA Notice Requirement for a Waiver of Sovereign Immunity The Notice of Claim provision i n the TTCA provides in its entir e t y: (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six (6) months after the day the incident giving rise to the claim occurred. The notice must reasonably describe: (1) The damage or injury claims; (2) The time and place of the incident; and (3) The incident. (b) A city’s charter and or dinance provisions requiring notice within a charter period permitted by law are ratified and approved.

16(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged. Tex. Civ. Prac. & Rem. Code § 101.101 (West 2015)(emphasis added) (App. F ) . This notice requirement is jurisdicti onal and without compliance, UTSWMC’s sovereign immunity is not waived. Tex. Govt. Code Ann. §311.034 (West 2015) (“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.”) (App. G ); Colquitt v. Brazoria County , 324 S.W.3d 539, 542

- 43 (Tex. 2010)

. In this case, it is undisputed that Appellees did not provide written notice of their claim within six (6) months of Mr. Klingsick’s lung transplant procedure and they asserted before the trial court th at they are relying on the actual notice of claim portion of the TTCA. 2 (RR 17

- 25, 41; CR699

- 702, Klingsick’s Notice of Claim Letter, dated June 12, 2012, Exh. P ). However, Appellees’ assertion tha t UTSWMC had actual knowledge is negated by the evidence i n this case.
C. The Texas Supreme Court & Actual Notice Concerning actual notice under §101.101(c) , the Texas Supreme Court has

2 T he discover y rule does not apply to claims under the TTCA Timmons v. Univ. Med. Ctr. , 331 S.W.3d 840, 848 (Tex. App.

— Amarillo 2011, n o pet.); Streetman v. Univ. of Tex. Health Sci. Ctr. at San Antonio , 952 S.W.2d 53, 55

– 56 (Tex.App.

-- San Antonio 1997, writ denied); Putthoff v. Ancrum , 934 S.W.2d 164, 174 (Tex. App.

— Fort Worth 1996, writ denied). 17issued three (3) landmark opinions which pertain to the TTCA’s notice of claim ’ s actual notice provi sion and are pertinent to this case. The first landmark case is Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995). The Cathey court held that actual notice exists only when the governmental unit , within six (6) months of the act upon
which the claim is bas ed, has knowledge of (1) the death or injury, (2 ) its alleged fault producing or contributing to death or injury , and (3) the names and addresses of all persons involved. Cathey , 900 S.W.2d at 341 (emphasis added)(approving of Bourne v. Nueces County Hosp. Dist., 749 W.W.2d 630, 632

- 33 (Tex. App.

— Corpus Christi 1988, writ denied)). In Cathey , the Supreme Court held that medical records that merely report the event or procedures on a patient of the complained of event, fails to adequately convey to the hospital its possible culpability for any injury to the plaintiff. Cathey, 900 S.W.2d at 342. The second landmark Supreme Court case is Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex. 2004). The Simons court held: [W]e hold that actual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed i njury. Simons, 140 S.W.3d at 348 (emphasis added). The Simons court clarified that the notice of claim provision “includes subjective awareness of its fault, as ultimately alleged by the claimant, in producing or contributing to the claimed injury.” S ee id. 18at 347. Merely investigating an event is insufficient to provide actual notice of a
claim. S ee id. at 348; see also Univ. of Texas Southwestern Med. Ctr. v. Arancibia , 324 S.W.3d 544, 549

- 550 (Tex. 2010)(evidence and knowledge of a “bad result,” in

an d of itself, is not enough for subjective awareness of fault). The third landmark Supreme Court case is City of Dallas v. Carbajal , 324 S.W.3d 537 (Tex. 2010). In Carbajal , t he Supreme Court held that a “police report” on an improperly blocked roadway, “ did not provide the City with subjective awareness of fault because it did not even imply, let alone expressly state, that the City was at fault.” Id. at 539. In this case , the Dallas P olice report in question reported that the p laintiff had stated that s he saw barricades , but none were blocking her way into the fr e eway. See i d

. at 538. As a result, the police report stated plaintiff
drove o nto the unblocked freeway and into an excavated gap of the road

. See id

. The police report also contained the officer’s observation that there were no barricades blocking the freeway entrance

. See i d. Additionally, the report did not indicate who was responsible for the missing barricades or rule out “the possibility that a pr ivate contractor or another governmental entity (such as the county or state) could have been responsible for” the missing barricades. Id

. at 539. Accordingly, the Carbajal court held that pursuant to its decision in Simmons , the City of Dallas did not hav e the specific subjective awareness of fault required for actual notice because the

19police report did not indicate that the City was at fault. See i d.
D. McQueen Opinion & Actual Notice in Health Care Liability Cases
Since Carbajal , the Houston Court of Appeals in health care liability cases
has also found that the health care provider must have subjective awareness of its specific fault beyond the medical records or a “bad result

. ” Univ. of Texas Health Sci. Ctr. at Houston v. McQueen , 431 S.W.750, 761 ( Tex. App.

— Houston [14th Dist.] 2014, no pet.). As the McQueen court stated, for there to be actual notice to the governmental unit: [T] here must exist something in the circumstances to provide a subjective signal to the governmental unit within the six

- month period that there might be a claim... There must be something more than the mere fact of a “bad result,” even one that perhaps a prudent person or physician would have investigated. McQueen , 431 S.W.3d at 761 (emphasis added). This cas e is on

- point with Appellees Klingsick’s suit.
In McQueen , the evidence consist ed of medical records and a UTHSCH physician’s not e in a progress report of a “ ‘ b owel injury during hysterectomy’ that would delay [plaintiff’s] recovery. ” Id. at 760. After th e procedure in question, risk management was not notified, no supervising physician was given a “heads up”
about the incident , and n o UTHSCH review or investigation was done , “ much less one leading to any assessment by UTHSCH that any partic ular error, eve n if

20‘technical,’ probably had occurred or that any portio n of Teresa’s care ‘contributed’ to her injury. ” Id

. Additionally, n o review concerning the “standard of care” occurred during the six months after the procedure

. See id . With regard to the
testimon y of the UTHSCH physician who provided the care in question , she acknowledged “ that the most likely possible cause of [plaintiff’s] bowel injury was a thermal injury from the cautery tools, although she did not see or note any d irect contact of any tool to [plaintiff’s] bowe l or any coupling between tools.” Id

. She testified that she did not see this injury during the procedure and “ that if she had noted a bowel injury during the hysterectomy, she would have documented it and called in general surgery to ev aluate the bowel. ” Id

. The physician also testified that

s he “w ould not change anything she did during the procedure ,” and that “ she did not believe that her use of any of the cautery tools fell below the standard of care .” Id

. As a result, the Houston Cou rt of Appeals ruled that this evidence did not show that UTHSCH had a “subjective signal” of fault within the six month notice period and there was no waiver of UTHSCH’s sovereign immunity under the TTCA. See id. at
761 & 762.
E. UTSWMC Did Not Have the Re quired “Subjective Signal”
In the case before the Court , the trial court denied UT SWMC’s plea to the jurisdiction based on Appellees’ a ssertion that within six (6) months of Mr.

21Klingsick’s surgery, a UTSWMC employee had the requisite subjective awareness
of its fault. (CR 2459

- 60)(RR 17

- 25, 41). Th e trial court’s ruling, however, completely ignores the evidence in the record

. Appellees ’ claims against UTSWMC arise from Mr. Klingsick’s lung transplant procedure that occurred on July 2 3, 2010 . H ence, at the latest, UTSWMC

was e ntitled to notice of Appellees’ claims under the TTCA on or before January 23,
201 1. T he evidence shows that the first time UTSWMC knew that Mr. Klingsick

w as one of the patients whose transplanted lungs had been transported in the improperly mixed STA preservation solution was on July 13, 2011. ( CR 660

– 61,
673

– 89 ). This occurred when STA informed UTSWMC of the date ranges of the transplant patients affected. ( CR 660

– 61, 681

- 85 ). Prior to this date, UTSWMC could not identify Mr. Klingsick as an affected patient and did not have any knowledge that Mr. Klingsick’s transplanted lungs were preserved in the improperly
mixed and prepared solution. (CR 673

- 77). But, in attempt to confer jurisdiction on the trial court, Appellees a rgue d at
the trial court that the knowledge Dr. Peltz had of a n inconclusive result of a blood

gas analyzer test of the STA preservation solution on January 10, 2011, while performing a lung tra nsplant procedure at Baylor Medical Center for a Baylor
Medica l Center patient, gave UTSWMC subjective awareness of its fault with in the

22six (6) month notice period. This incident failed to provide UTSWMC with actual notice of the Klingsicks’ claims for multiple reasons
. At deposition, Dr. Peltz testi fied the Januar y 10, 2011, he performed the lung procurement and transplant for Baylor Medical Center on a Baylor patient , not for

or at UTSWMC or on a UTSWMC patient . ( CR 2250 ). He testified that after that transplant, although the blood

- gas analyzer returned an out

- of

- range reading for the sample of preservation solution he tested, his concern was that the preservation solution may have been too acidic, having a pH level below the optimal range
because the metabolism of the lungs produces more acid over time, not above, as

was later determined to be the problem . ( CR 2251

- 52 ). He testified that he did not
know how the blood

- gas analyzer was calibrated and therefore the out

- of

- range reading was not indicative of anything specifically wrong. (CR 2252

- 55). Although
he later mentioned this reading to his colleagues at UTSWMC in passing, Dr. Peltz testified this result did not motivate him to pursue the matter any further as “[t]here was no reason to believe there was anything incorrect about the way the preservation
solu tion was made.” ( CR 2252 ). He testified he subjectively had no reason to believe that there was anything wrong with the preservation solution or how it was mixed and prepared by STA at that time . ( CR 2252, 2276 ). Additionally, all of the undisputed testim ony in the record conclusively established that the preservation

23solution in question was mixed and prepared by a STA employee, not by Dr. Peltz or any other UTSWMC employee. (CR 974

– 75, 1897

– 98, 1902, 2274). Consequently, all of this evidence conclu sively negates Appellees’ allegation that UTSWMC had the subjective awareness of fault necessary to meet the requirements for actual notice delineated by the Texas Supreme Court and the McQueen opinion. Carbajal , 324 S.W.3d at 539; Simons, 140 S.W.3d at 34 8; Cathey , 900 S.W.2d at 341 ; McQueen , 431 S.W.3d at 761. T he knowledge that Dr. Peltz had on or before January 23 , 2011, does not equate to a “ subjective signal” of
fault on behalf of UTSWMC as a matter of law. McQueen , 431 S.W.3d at 761 &
762.
F
. Conclusion
Based on the evidence in this case , Appellee s failed to provide UTSWMC with notice of their claims as required by Tex. Civ. Prac. & Rem. Code § 101.101. This failure prevents a waiver of UTSWMC’s sovereign immunity and deprived the
trial court of subject

- matter jurisdiction. Simons, 140 S.W.3d at 348; Cathey , 900
S.W.2d at 341 ; McQueen , 431 S.W.3d at 761 & 762 . Therefore, the trial court should have dismissed Appellees’ suit against UTSWMC and this Court should reverse and render judgment in UT SWCM’s favor

. See id

.

24ISSSUE II: D ID THE TRIAL COURT C OMMIT REVERSIBLE ERR OR IN DENYING UTSWMC’ S PLEA TO THE JURISD ICTION WHEN NO TANGI BLE PERSONAL PROPERTY WA S NEGLIGENTLY USED B Y ITS EMPLOYEES DURING THE ALLEGED N EGLIGENT MEDICAL TRE ATMENT IN QUESTION ?
A. Quick Answer Yes. Appellees cannot show that any UTSWMC employees negligently used any tangible personal property that caused injury to Mr. Klingsick. The true culprit in this case, the improper mixing and preparing of the lung preservation solution for Mr. Klingsick’s donor lungs was completed by STA’s employees, not UTSWMC’s. In addition, the other allegations made by Appellees fail to assert a true use of tangible personal property caused injury to Mr. Klingsick. As a result, there is no applicable waiver of sovereign under the TTCA that allows Appellees to maintain their suit against UTSWMC and the trial court should have dismissed their claims in their entirety.
B
. TTCA §101.021’s Waiver of Sovereign Immunity Requirements Under the TTCA, the Texas Legislature and Supreme Court have made clear that the waiver of immunity applies in only three (3) specific scenarios where damages are proximately caused by: 1) the operation or use of a motor driven vehicle or equipment; 2) a c ondition or use of tangible property; or 3) premises defects.

25Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 & 101.022 (West 2015) (App. H &
I ) ; City of Corsicana v. Stewart , 249 S.W.3d 412, 413 (Tex. 2008); Texas Dept. of Transp. v. Able , 35 S.W.3d 608, 611 (Tex. 2000); Dallas Cty. MHMR v. Bossley , 968 S.W.2d 339, 343 (Tex. 1998). At the trial court, i t is the plaintiff’s burden to establish the TTCA waives sovereign immunity. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003).
In a suit brought under the TTCA, a claimant can only proceed under one theory of liability for recovery. Miranda , 133 S.W.3d at 233 ( citing State v.
Tennison , 509 S.W.2d 560, 562 (Tex. 1974))(the TTCA does not create two separate grounds of liability); City of Hous ton v. Harris , 192 S.W.3d 167, 174 (Tex. App.

– Houston [14 th Dist.] 2006, no pet.). In this case, based on Appellee s’ allegations and the j urisdictional evidence, they could only proceed under a use of tangible personal property theory, which the evidence does not establish as actionable . ( CR 1520

- 24 ).
C. Appellees’ Negligent Use Allegations Concerning Mr. Klingsick’s Lung Transplant Appellees alleged that employees of UTSWMC, “ negligently used or misused the tangible personal property, including but not limited to the improperly mixed fluid used to transport the lungs that were ultimately transplanted into William Klingsick and the lungs themselves that were implanted into Mr. Klingsick.” (CR

261523

- 24). More specifically, they alleged the negligen ce include d the following: a. failing to preserve and/or maintain organs viable for William Klingsick as an organ transplant recipient; b. failing to check the pH level of the organ transporting fluid before performing the operation at issue; c. failing to provide a healthy and viable organ to William Klingsick as an organ transplant recipient; d. negligently instructing Southwest Transplant Alliance how to use the transplant solution; e. negligently instructing Southwest Transplant Alliance on how to use t he lungs in question; f. failing to follow appropriate surgery procedures; g. failing to properly train and supervise its staff; h. allowing untrained and/or unqualified staff to care and treat William Klingsick; i. failing to maintain proper written procedures governing transplanted organs; j. instructing Southwest Transplant Alliance to erroneously mix Perfadex; and k. negligently using the lungs and/or transplant solution in question. (CR 1522

- 23). Appellees allege these acts or omissions of ne gligence proximately caused injuries and damages to them and Mr. Klingsick. (CR 1523

- 24). In summary, their claims focus on allegations of a misuse of the lungs, failure to take action, negligent hiring, training and supervising, misuse of information an d 27negligent medical judgment.
The conclusive evidence established in the record above demonstrates all actions and omissions concerning the mixing and preparing of the lung preservation solution were done by a STA employee, and not that of UTSWMC. As a re sult, allegations concerning the lungs do not legally apply to UTSWMC. And all of the other alleged acts or omissions did not involve a use of tangible personal property.
D. The TTCA Waiver of Immunity Requires a Negligent Use of Tangible Personal Prope rty
Section 1 01.021(2) waives immunity for a use of personal property only if the governmental unit, through its employee(s), is itself the user. Tex. Civ. Prac. & Rem. Code Ann §§ 101.001( 2) & 101.021 ; San Antonio State Hosp. v. Cowan, 12 8 S.W.3d 244, 2 46 (Tex. 2004). “Use” means “ to put or bring into action or service; to employ
f

or or apply to a given purpose.” Id. Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Concerning proximate causation, the using of the tangible person al property must have actually caused the injury or death, mere involvement of the tangible property is not enouogh

. Miller, 51 S.W.3d at 588 ; see
also Cowan , 128 S.W.3d at 245

- 46; Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 178 n. 5 (Tex. 1994). And concerning health care liability claims, the Texas Supreme Court stated in Miller:

28There cannot be a waiver of sovereign immunity in every case in which medical treatment is provided by a public facility. Doctors in state medical facilities use some f orm of tangible personal property nearly every time they treat a patient. If there is waiver in all those cases, the waiver of immunity is virtually unrestricted, which is not what the Legislature intended. Miller, 51 S.W.3d at 587 (citing Kerrville State Hospital v. Clark, 923 S.W. 2d. 582, 586 (Tex. 1996)). Accordingly, a negligent use of tangible personal property is required to waive sovereign immunity. See id

. As a result of this negligent use of tangible personal property requirement
under the TTCA , allegations that assert a non

- use or use of intangible property do not properly assert a waiver of immunity. Allegations and evidence of a misuse of information do not waive sovereign immunity. Univ. of Texas Medical Branch at
Galveston v. York , 871 S.W. 2d 175, 178 (Tex. 1994) ; Univ. of Texas Medical Branch v. Kai Huo Qi, 402 S.W.3d 374, 388 (Tex. App.

-- Houston [14th Dist.] 2013, no pet.); Univ. of Texas M.D. Anderson Cancer Ctr. v. King , 329 S.W.3d 876, 880 (Tex. App.

— Houston [14th Dist.] 2010) ; Arnold v. Univ. of Texas Southwestern Med. Ctr. , 279 S.W.3d 464, 46 9 (Tex. App.

— Dallas 2009, no pet.) (citing Gipson v. City of
Dallas , 247 S.W.3d 465, 471 (Tex. App.

— Dallas 2008, pet. denied) ); Texas Tech
Health Sci. Ctr. v. Ward , 280 S.W.3d 345, 356 (Tex. App.

– Amarillo 2008, pet. denied) (all holding that misuse of medical information is not a use of property under the TTCA) . Allegations and evidence of negligent judgment, e rrors in medical 29judgment in assessing medical conditions, failure to act, fa ilure to foll ow accepted medical treatment practices of the standard of care, or a failure to do a proper medical investigation also do not fall under the TTCA waiver. Clark , 923 S.W.2d at 584 ; Qi, 402 S.W.3d at 388; King , 329 S.W.3d at 880

- 81; Univ. of Texas Medical B ranch at
Galveston v. Tatum , 389 S.W.3d 457, 462 (Tex. App.

— Houston [1st Dist.] 2012, no pet.); Kamel v. Univ. of Texas Health Sci. Ctr. at Houston , 333 S.W.3d 676, 686 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied); Arnold , 279 S.W.3d at 468

- 69 ; Redden v. Denton Cty , 335 S.W.3d 743, 751 (Tex. App.

– Fort Worth 2011, no pet. h.) ; Somervell County Healthcare Authority v. Sanders, 169 S.W.3d 724, 727

- 28 (Tex. App.

-- Waco 2006, no pet.) (all holding that claims of negligence in judgment, human error, failur e to act, follow proper medical procedure or investigate do not assert a use of tangible personal property) . And allegations and evidence of negligent hiring, training and supervising do not fall under the applicable waiver of sovereign immunity. Texas A&M Univ. v. Bishop , 156 S.W.3d 580, 583 (Tex. 2005); Whitley , 104 S.W.3d at 543; Kamel , 333 S.W.3d at 686; King , 329 S.W.3d at 881 ; El Paso
MHMR v. Crissman , 241 S.W.3d 582 (Tex. App.

— El Paso 2007, no pet.)(citing
Petta , 44 S.W.3d at 581) ; Univ. of Tex. Health Sci. Ctr. v. Schroeder , 190 S.W.3d 102 (Tex. App.

-- Houston [1st Dist.] 2005, no pet.) ; Dallas Area Rapid Trans. v.
Edwards , 171 S.W.3d 584, 587

- 88 (Tex. App.

— Dallas 2005, pet. denied); Texas

30Dept. of Crim. Just. v. Hawkins , 169 S.W.3d 529, 533 (Tex . App.

— Dallas 2005, no pet.); City of Garland v. Rivera , 146 S.W.3d 334, 338

- 39 (Tex. App.

— Dallas 2004, no pet.) (all holding that claims of negligent hiring, training and supervising do not properly assert a use of tangible personal property under the TTCA )

. The opinion that is instructive to this case is Arnold

. Arnold v. Univ. of Texas
Southwestern Med. Ctr. , 279 S.W.3d 464, 468

- 69 (Tex. App.

— Dallas 2009, no pet.)

. In Arnold , the plaintiff sued UTSWMC for one of its physician’s alleged negligence in perf orming a breast augmentation procedure. See id. at 468. Plaintiff’s allegations in that case included a failure to do a proper pre

- surgery investigation, respond to
post

- surgery concerns, failure to document the proper size of the replacement implants need ed, and the use of the larger implants “deformed her breasts,” causing injury to her. See id

. 468

- 470. Upon closer review, the Court found that plaintiff’s allegations were truly of errors in judgment (miscalculation or misdiagnosis) and a
misuse of inform ation. See id . As a result, the Court stated: [b] ecause th e true substance of the Arnolds’ pleadings is that [the UTSWMC surgeon] miscalculated or misdiagnosed the necessary size of replacement breast implants, the fact that the pleadings also identify a p iece of tangible personal property used during the procedure does not affect our decision that this is not a claim for the negligent use of tangible personal property.
Id . Accordingly, unless Appellees Klingsick could prove an employee of UTSWMC negligently used tangible personal property concerning Mr. Klingsick’s lung 31transplant, the TTCA waiver of sovereign immunity does not apply. The true allegations of Appellees and the evidence in the record fail to implicate the TTCA’s
waiver.
E. Appellees ’ True Allegations Fail to Assert a Waiver of Sovereign Immunity Upon review of the gravamen of Appellees’ allegations and evidence, their claims focus on the negligent mixing and preparing of the lung preservation solution and the failures to investigat e, discover or prevent this mistake. (CR 1523

- 24; P’s
Pet. 13.01

- 13.02). Along those lines, Appellees’ list of failures in not discovering the improper mixing and preparation of the solution, or taking other action, aim directly at UTSWMC’s failure in hi ring, training and supervising its employees as well as a failure to act, misuse of information and negligent medical judgment. All of these allegations fail as a matter of law.
T his case truly focuses on the negligent prepar ation of lung preservation
solution , which UTSWMC did not mix or prepare
. It is u ndisputed the preservation
solution in question for Mr. Klingsick’s lung transplant was mixed and prepared solely by STA employees. Accordingly, all of Appellees’ allegations concerning the lung preserv ation solution fail as a matter of law. Turning to the remaining allegations made by Appellees against UTSWMC, the failure to act and failure to properly hire, train and supervise its employees, these 32claims also fail as a matter of law

. Additionally, the other allegations that assert a failure to act, misuse of information and negligent medical judgment also fail. The numerous cases cited above from the Texas Supreme Court and the Courts of Appeals has clearly established such allegations do not implicate the TTCA’s limited waiver of sovereign immunity and are barred as a matter of law.
F
. Conclusion Based on the allegations and the evidence in the record, Appellees did not prove the limited waiver of sovereign immunity under the TTCA applies to their
he alth liability claims against UTSWMC. No alleged negligent use of tangible personal property by UTSWMC’s employees caused injury to Mr. Klingsick or Appellees. This failure deprived the trial court of subject

- matter jurisdiction. As a result, the trial cou rt committed error when it did not grant UTSWMC’s Plea to the Jurisdiction on these same grounds. This Court should reverse the trial court’s denial of the Plea and render judgment in favor of UTSWMC, dismissing Appellees’ case in its entirety.
PRAYER
WH EREFORE, for the reasons stated above, Appellant UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER prays that this Court reverse the trial courts denial of its Plea to the Jurisdiction and render judgment that Appellees’

33suit be dismissed in its entirety. Ap pellant further prays for such other and further relief, both at law and in equity, to which it may show itself justly entitled. Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
KARA L. KENNEDY Chief, Tort Litigation Division

/s/ 

# Jason Warner

JASON WARNER Assistant Attorney General State Bar No. 24028112 Tort Litigation Division, MC

- 030 P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 (512) 463

- 2197 FAX: (512) 457

- 4430 Jason.warner@texasattorneygeneral.gov Counsel for Appellant

34CERTIFICATE OF COMPLIA NCE I hereby certify that this Appellant’s Brief contains 7 , 484 computer generated words, as calculated by Microsoft Word 2013, in accordance with Tex. R. App. P

. 9.4

. /s/ 

# Jason Warner
JASON WARNER Assistant Attorney General

CERTIFICATE OF SERVICE I do hereby certify compliance with Tex. R. Civ. P. 21. A true and correct copy of the foregoing instrument has been served on all counsel, by electronic transmission to the electronic mail address on file with the electronic filing manager Rule 21a(1). If a party has not designated an electronic mail address with the electronic filing manager, the party was served a true and correct copy of the foregoing instrument in person, by mail, by commercial delivery service by fax or by email, or by such other mann er as the Court in its discretion may direct. Rule 21a(2). Service was made on all parties as provided on April 30 , 2015.
Andrew B. Sommerman S OMMERMAN & Q UESADA , L.L.P. 3811 Turtle Creek Boulevard, Suite 1400 Dallas, TX 75219

- 4461 214.720.0720

- phone 21 4.720.0184

- fax State Bar No. 18842150 andrew@textrial.com Attorney for Appellees

35Gary Lykins T HE B ERRY F IRM , P.L.L.C. 1412 Main Street, Suite 2300 Dallas, TX 75202 214.915.9806

– direct no. 214.752.8250

– fax State Bar No. 12715600 lykins@berryfirm.com Attorney for Non

- Party Southwest Transplant Alliance

Tim Ryan S CHELL C OOLEY LLP 15455 Dallas Parkway, Suite 550 Addison, TX 75001 (214) 665

- 2005

– phone (214) 754

- 0060

– Fax State Bar No. 17483600 tryan@schellcooley.com Attorney for Non

- Party Vitrolife, Inc.

/s/ 

# Jason Warner
JASON WARNER Assistant Attorney General

36APPENDIX
TAB Trial Court’s Order denying Appellant’s Plea to the Jurisdiction, dated March 1, 2015

................................ ................................ ................................ .. A
T EX

. C IV

. P RAC

. & R EM

. C ODE §51.014(a)(8)

................................ ......................... B
T EX

. C IV

. P RAC

. & R EM

. C ODE §101.001(3)(a)

................................ ....................... C
T EX

. E DUC

. C ODE §65.02(a)(7)

................................ ................................ ................ D
T EX

. E DUC

. C ODE §74.101

................................ ................................ ..................... E
T EX

. C IV

. P RAC

. & R EM

. C ODE §101.101

................................ ................................ . F
T EX

. G OVT

. C ODE §311.034

................................ ................................ .................... G
T EX

. C IV

. P RAC

. & R EM

. C ODE §101.021

................................ ................................ . H
T EX

. C IV

. P RAC

. & R EM

. C ODE §101.022

................................ ................................ ... I

37

# APPENDIX “ A ”APPENDIX "A" DC-12-07946

VERBA KLINGSICK, DIANA KLINGSICK AND JANA CARRASCO, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF WILLIAM R. KLINGSICK, DECEASED Plaintiffs,

vs. SOUTiiWESTTRANSPLANT ALLIANCE, THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, and VITROLIFE, INC. Defendants. § § § § § § § § § § § § § IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

95tb JUDICIAL DISTRICT 

# 4fhD 000562

ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS AGAINST THE UNIVERSITY

OF TEXAS SOUTHWESTERN MEDICAL CENTER AND DEFENDANT'S PLEA TO THE JURISDICTION, MOTION FOR CONTINUANCE, AND MOTION TO TftANSFER PLAINTIFFS' MOTION FOR SANCTIONS
On Friday, February 13, 2013 the Court heard the following motions and plea: (1) Plaintiffs' Motion to Enforce Order and for Sanctions Against Defendant the University of
Texas Southwestern Medical Center; (2) Defendant the University of Texas Southwestern
Medical Center's Objections to Filing and Emergency Motion to Transfer Plaintiff's [sic] Motion

to Enforce Order and for Sanctions to Consolidated Case; (3) Defendant the University of Texas
Southwestern Medical Center's Motion for Continuance of Plaintiffs' Motion to Enforce Order
and for Sanctions; and (4) the University of Texas Southwestern Medical Center's Plea to the
Jurisdiction. The Court has heard argument by counsel and read the motions and briefs in support
of the parties' positions.
The Court therefore ORDERS, ADJUDGES, and DECREES the following:
1. Plaintiff's Motion to Enforce Order and for Sanctions against Defendant the University of Texas Southwestern Medical Center is CARRIED WITH THE CASE;
2. Defendant the University of Texas Southwestern Medical Center's Objections to Filing and Emergency Motion to Transfer Plaintiff's [sic] Motion to Enforce Order and for Sanctions to Consolidated Case is DENIED;
3. Defendant the University of Texas Southwestern Medical Center's Motion for Continuance of Plaintiffs' Motion to Enforce Order and for Sanctions is DENIED; and

ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS AND RELATED DEFENSE MOTIONS AND DEFENDANT'S PLEA TO THE JURISDICTION PAGEi4. the University of Texas Southwestern Medical Center's Plea to the Jurisdiction is DENIED.

SIGNED this 

### t 

### .;t th day of 

## II'\ h ,A,,,,, , 2015. 

## \

JUDGE

### PRESID~

ORDER ON PLAINTIFFS' MOTION FOR SANCTIONS AND RELATED DEFENSE MOTIONS AND DEFENDANT'S PLEA TO THE JURISDICTION PAGE2

# APPENDIX “ B ”V.T.C.A., Civil Practice & Remedies Code § 51.014 Page 1

Effective: September 1, 2011
Vernon's Texas Statutes and Codes Annotated Currentness

Civil Practice and Remedies Code (Refs & Annos) Title 2. Trial, Judgment, and Appeal

Subtitle D. Appeals Chapter 51 . Appeals

Subchapter B . Appeals from County or District Court § 51. 014. Appeal from Interl ocutory Order (a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that:

(1) appoints a receiver or trustee; (2) overrules a motion to vacate an order that appoints a receiver or trustee; (3) certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure ; (4) grants or refuses a temporary injunction or grants or overrules a motion to dissolve a temporary injunction as provided by Chapter 65; (5) denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an office r or employee of the state or a political subdivision of the state; (6) denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Consti tution , or Chapter 73; (7) grants or denies the special appearance of a defendant under Rule 120a, Texas Rules of Civil Procedure , except in a suit brought under the Family Code; (8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001 ; (9) denies all or part of the relief sought by a motion under Section 74. 351(b), except that an appeal may not be taken from an order granting an extension und er Section 74.351 ; (10) grants relief sought by a motion under Section 74.351(l) ; or (11 ) denies a motion to dismiss filed under Section 90.007

. (b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), stays the co m-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX "B"V.T.C.A., Civil Practice & Remedies Code § 51.014 Page 2

mencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under Subsection (a)(3), (5), or (8) also stays all other proceedings in the trial court pending resolution of that appeal. (c) A denial of a motion for summary judgment, special appearance, or plea to the jurisdiction des cribed by Subsection (a)(5), (7), or (8) is not subject to the automatic stay under Subsection (b) unless the motion, special appearance, or plea to the jurisdiction is filed and requested for submission or hearing before the trial court not later than the later of:

(1) a date set by the trial court in a scheduling order entered under the Texas Rules of Civil Procedure; or (2) the 180th day after the date the defendant files:

(A) the original answer; (B) the first other responsive pleading to the plaintiff's petition; or (C) if the plaintiff files an amended pleading that alleges a new cause of action against the defendant and the defendant is able to raise a defense to the new cause of action under S ubsection (a)(5), (7), or (8), the responsive pleading that raises that defense. (d) On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. (d

- 1) S ubsection (d) does not apply to an action brought under the Family Code. (e) An appeal under Subsection (d) does not stay proceedings in the trial court unless:

(1) the parties agree to a stay; or (2) the trial or appellate court orders a stay of the pr oceedings pending appeal. (f) An appellate court may accept an appeal permitted by Subsection (d) if the appealing party, not later than the 15th day after the date the trial court signs the order to be appealed, files in the court of ap peals having appellate jurisdiction over the action an application for interlocutory appeal explaining why an appeal is warranted under Subsection (d). If the court of appeals accepts the appeal, the appeal is governed by the procedures in the Texas Rules of Appellate Procedure for pursuing an accelerated appeal. The date the court of appeals enters the order accepting the appeal starts the time applicable to filing the notice of appeal.
CREDIT(S) Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, § 3.10, eff. Sept. 1, 1987 ; Acts 1989, 71st Leg., ch. 915, § 1, eff. June 14, 1989 ; Acts 1993, 73rd Leg., ch. 855, § 1, eff. Sept. 1, 1993 ; Acts 1997, 75th Leg., ch. 1296, § 1, eff. June 20, 1997 ; Acts 2001, 77th Leg., ch. 1389, § 1, eff. Sept. 1, 2001 ; Acts 2003, 78th Leg., ch . 204, § 1.03, eff. Sept. 1, 2003 ; Acts 2005, 79th Leg., ch. 97, § 5, eff. Sept. 1, 2005 ; Acts 2005, 79th Leg., ch. 1051, §§ 1, 2, eff. June 18, 2005 ; Acts 2011, 82nd Leg., ch. 203 (H.B. 274), § 3.01, eff. Sept. 1, 2011

.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.V.T.C.A., Civil Practice & Remedies Code § 51.014 Page 3

Current through the end of the 2011 Regular Session and First Called Session of the 82nd Legislature (c) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMEN T

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

# APPENDIX “ C ”V.T.C.A., Civil Practice & Remedies Code § 101.001 Page 1

Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotate d Currentness

Civil Practice and Remedies Code (Refs & Annos) Title 5. Governmental Liability Chapter 10 1 . Tort Claims (Refs & Annos)

Subcha pter A . General Provisions

§ 10 1.001. Definitions In this chapter:

(1) “Emergency service organization” means a volunteer fire department, rescue squad, or an emergency medical services provider that is:

(A) operated by its members; and (B) exempt from state taxes by being listed as an exempt organization under Section 151.310 o r 171.083, Tax Code

. (2) “Employee” means a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control. (3) “Governmental unit” means:

(A) this state and all the several agencies of government that collectively con stitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, o ffices, agencies, councils, and courts; (B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and i mprovement district, water control and preservation district, freshwater supply district, navigation district, co nservation and reclamation district, soil conservation district, communication district, public health district, and river authority; (C) an emergency service organization; and (D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution. (4) “Motor

- driven equipment” does not include:

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

APPENDIX "C"V.T.C.A., Civil Practice & Remedies Code § 101.001 Page 2

(A) equip ment used in connection with the operation of floodgates or water release equipment by river author ities created under the laws of this state; or (B) medical equipment, such as iron lungs, located in hospitals. (5) “Scope of employment” means the performance for a governmental unit of the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority. (6) “State government” means an agency, bo ard, commission, department, or office, other than a district or a uthority created under Article XVI, Section 59, of the Texas Constitution , that:

(A) was created by the constitution or a statute of this state; and (B) has sta tewide jurisdiction.
CREDIT(S) Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 693, § 1, eff. June 19, 1987 ; Acts 1991, 72nd Leg., ch. 476, § 1, eff. Aug. 26, 1991 ; Acts 1995, 74th Leg., ch. 827, § 1, eff. Aug. 28, 1995 ; Acts 1997, 75th Leg., ch. 968, § 1, eff. Sept. 1, 1997

. Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature (c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

# APPENDIX “ D ”§ 65.02. Organization, TX EDUC § 65.02

V.T.C.A., Education Code § 65.02 § 6 5.02. Organization Effective: September 1, 2013

Currentness

( a) The University of Texas System is composed of the following institutions and entities:

( 1) The University of Texas at Arlington, including:

( A) The University of Texas Institute of Urban Studies at Arlington; and

( B) The University of Texas School of Nursing at Arlington;

( 2) The University of Texas at Austin, including:

( A) The University of Texas Marine Science Institute;

( B) The University of Texas McDonald Observatory at Mount Locke; and

( C) The University of Texas School of Nursing at Austin;

( 3) The University of Texas at Dallas;

( 4) The University of Texas at El Paso, includi ng The University of Texas School of Nursing at El Paso;

( 5) The University of Texas of the Permian Basin;

( 6) The University of Texas at San Antonio, including the University of Texas Institute of Texan Cultures at San Antonio;
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 APPENDIX "D"§ 65.02. Organization, TX EDUC § 65.02

(7) The University of Texas Southwestern Medical Center, including:

(A) The University of Texas Southwestern Medical School at Dallas;

(B) The Unive rsity of Texas Southwestern Graduate School of Biomedical Sciences at Dallas; and

(C) The University of Texas Southwestern Allied H ealth Sciences School at Dallas;

(8) The University of Texas Medical Branch at Galveston, including:

(A) The University of Texas Medical School at Galveston;

(B) The University of Texas Graduate School of Biomedical Sciences at Galveston;

(C) The University of Texas S chool of Allied Health Sciences at Galveston;

(D) The University of Texas Marine Biomedical Institute at Galveston;

(E) The University of Texas Hospitals at Galveston; and

(F) The University of Texas School of Nursing at Galveston;

(9) The University of Texas Health S cience Center at Houston, including:

(A) The University of Texas Medical School at Houston;

(B) The University of Texas Dental Branch at Houston;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2§ 65.02. Organization, TX EDUC § 65.02

(C) The University of Texas Graduate School of Biomedical Sciences at Houston;

(D) The University of Texas Sch ool of Health Information Sciences at Houston;

(E) The University of Texas School of Public Health at Houston;

(F) The University of Texas Speech and Hearing Institute at Houston; and

(G) The University of Texas School of Nursing at Houston;

(10) The University of Tex as Health Science Center at San Antonio, including:

(A) The University of Texas Medical School at San Antonio;

(B) The University of Texas Dental School at San Antonio;

(C) The University of Texas Graduate School of Biomedical Sciences at San Antonio;

(D) The University of Texas School of Allied Health Sciences at San Antonio; and

(E) The University of Texas School of Nursing at San Antonio;

(11) The University of Texas M. D. Anderson Cancer Center, including:

(A) The University of Texas M. D. Anderson Hospital;

(B) The University of Texas M. D. Anderson Tumor Institute; and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3§ 65.02. Organization, TX EDUC § 65.02

(C) The University of Texas M. D. Anderson Science Park; and

(12) The University of Texas Health Science Center

-- South Texas, including The University of Texas Medical School

-- South Texas, if es tablished under Subchapter N 1 , Chapter 74.

(b) The University of Texas System shall also be composed of such other institutions and entities as from time to t ime may be assigned by specific legislative act to the governance, control, jurisdiction, or management of The University of Texas System.

Credits Added by Acts 1973, 63rd Leg., p. 1186, ch. 435, § 1, eff. Aug. 27, 1973. Amended by Acts 1989, 71st Leg., ch. 644, § 2, eff. June 14, 1989 ; Acts 2001, 77th Leg., ch. 325, § 1, eff. Sept . 1, 2001 ; Acts 2009, 81st Leg., ch. 1341, § 5, eff. June 19, 2009 ; Acts 2013, 83rd Leg., ch. 179 (H.B. 1844), § 9, eff. Sept. 1, 2013

.

Notes o f Decisions (6)

Footnotes

1 V.T.C.A., Education Code § 74.751 et seq.

V. T. C. A., Education Code § 65.02, TX EDUC § 65.02 Current through the end of the 2013 Third Called Session of the 83rd Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

# APPENDIX “ E ”§ 74.101. Component Institution, TX EDUC § 74.101

V .T.C.A., Education Code § 74.101 § 74 .101. Component Institution

Effective: September 1, 2013

Currentness

T he University of Texas Southwestern Medical Center is a component institution of The University of Texas System under the management and control of the board of regents of The University of Texas System.

C redits
A cts 1971, 62nd Leg., p. 3182, ch. 1024, art. 1, § 1, eff. Sept. 1, 1971. Amended by Acts 1989, 71st Leg., ch. 644, § 9, eff. June 14, 1989 ; Acts 2013, 83rd Leg., ch. 179 (H.B. 1844), § 11, eff. Sept. 1, 2013

.

V . T. C. A., Education Code § 74.101, TX EDUC § 74.101 Current through the end of the 2013 Third Called Session of the 83rd Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

APPENDIX "E"

# APPENDIX “ F ”§ 101.101. Notice, TX CIV PRAC & REM § 101.101

V.T.C.A., Civil Practice & Remedies Code § 101.101 § 1 0 1.101. Notice

Currentness

( a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months afte r the day that the incident giving rise to the c laim occurred. The notice must reasonably describe:

( 1) the damage or injury claimed;

( 2) the time and place of the incident; and

(3 ) the incident.

( b) A city’s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved.

( c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the gove rnmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property h as been damaged.

C redits
A cts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

N otes of Decisions (301)

V . T. C. A ., Civil Practice & Remedies Code § 101.101, TX CIV PRAC & REM § 101.101 Current through the end of the 2013 Third Called Session of the 83rd Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

APPENDIX "F"

# APPENDIX “ G ”V.T.C.A., Government Code § 311.034 Page 1

Effective: September 1, 2005
Vernon's Texas Statutes and Codes Annotated Currentness

Government Code (Refs & Annos) Title 3. Legislative Branch (Refs & Annos)

Subtitle B. Legislation Chapter 311 . Code Construction Act (Refs & Annos)

Subchapter C . Construction of Statutes (Refs & Annos) § 31 1.034. Waiver of Sovereign Immunity In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unamb i guous language. In a statute, the use of “person,” as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction. Statutory prerequisites to a suit, including the provision of notice, are jurisdictional r equirements in all suits against a governmental entity.
CREDIT(S) Added by Acts 2001, 77th Leg., ch. 1158, § 8, eff. June 15, 2001 . Amended by Acts 2005, 79th Leg., ch. 1150, § 1, eff. Sept. 1, 2005

. Current through the end of the 2011 Regular Session and First Called Session of the 82nd Legislature (c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF D OCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX "G"

# APPENDIX “ H ”V.T.C.A., Civil Practice & Remedies Code § 101.021 Page 1

Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness

Civil Practice and Remedies Code (Refs & Annos) Title 5. Governmental Liability Chapter 101 . Tort Claims (Refs & Annos)

Subchapter B . Tort Liability of Governmental Units (Refs & Annos)

§ 10 1.021. Governmental Liability A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negl igence of an employee acti ng within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor

- driven vehicle or motor

- driven equipment; and (B) the employee would be personally liable to the claimant according to Te xas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the gover nmental unit would, were it a private person, be liable to the claimant according to Texas law.
CREDIT(S) Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Current through the end of the 2009 Regular and First Called Sessions of the 81st Legislature (c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX "H"

# APPENDIX “ I ”V.T.C.A., Civil Practice & Remedies Code § 101.022 Page 1

Effective: June 14, 2005
Vernon's Texas Statutes and Codes Annotated Currentness

Civil Practice and Remedies Code (Refs & Annos) Title 5. Governmental Liability Chapter 101 . Tort Claims (Refs & Annos)

Subchapter B . Tort Liability of Governmental Units (Refs & Annos)

§ 1 01.022. Duty Owed: Premise and Special Defects (a) Except as provided in Subsection (c), if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. (b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or t o the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060

. (c) If a claim arises from a premise defect on a toll highway, road, or street, the g overnmental unit owes to the claimant only the duty that a private person owes to a licensee on private property.
CREDIT(S) Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2005, 79th Leg., ch. 281, § 2.88, eff. June 14, 2005

. Current th rough the end of the 2009 Regular and First Called Sessions of the 81st Legislature (c) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX "I"