NO. 05-15-00246-CV

In the Fifth Court of Appeals

Dallas, Texas 

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 95TH 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

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 4/30/2015 4:26:18 PM LISA MATZ Clerk
IDENTITY 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 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

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

SOMMERMAN & QUESADA, 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

ii
Other Parties To The Underlying

Suit, But Not A Party To This

Appeal:

Southwest Transplant Alliance

Attorney of Record: Gary Lykins

THE BERRY FIRM, 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

SCHELL COOLEY LLP

15455 Dallas Parkway, Suite 550

Addison, TX 75001

(214) 665-2005 – phone

(214) 754-0060 – Fax

State Bar No. 17483600

tryan@schellcooley.com

iii
REQUEST 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.

iv
TABLE 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

v
ISSUE I: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING 

UTSWMC’S PLEA TO THE JURISDICTION WHEN APPELLEES DID 

NOT GIVE UTSWMC FORMAL NOTICE OF THEIR CLAIMS AND 

UTSWMC DID NOT HAVE ACTUAL NOTICE OF THEIR CLAIMS 

WITHIN SIX MONTHS FROM THE DATE OF INCIDENT? .............................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: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING 

UTSWMC’S PLEA TO THE JURISDICTION WHEN NO TANGIBLE 

PERSONAL PROPERTY WAS NEGLIGENTLY USED BY ITS 

EMPLOYEES DURING THE ALLEGED NEGLIGENT MEDICAL 

TREATMENT IN QUESTION?.................................................................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 .................................................................................................................33

CERTIFICATE OF COMPLIANCE.......................................................................35

CERTIFICATE OF SERVICE ......................................................................... 35, 36

APPENDIX .............................................................................................................37

vi
INDEX 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

City of Houston v. Harris, 

192 S.W.3d 167 (Tex. App.– Houston [14th 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

vii
Dallas 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 County 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

viii
Redden 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. Petta, 

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

ix
Texas 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 pet.) .............. 29, 30

Univ. of Texas Southwestern Med. Ctr. v. Arancibia, 

324 S.W.3d 544 (Tex. 2010)................................................................................19

x
Univ. 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

xi
STATEMENT 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 

Alliance (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 mixed 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, their 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 Trial Court: The University of Texas Southwestern Medical 

Center, Appellant, was the Defendant in the trial 

court. The Klingsicks, Appellees, were the 

Plaintiffs. (CR1518-30).

Trial Court: The 95th Judicial District Court of Dallas County, 

Texas, The Honorable Ken Molberg, Presiding 

Judge. (CR 1301).

xii
Trial 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 Brief, 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 the record and the 

appendix as “App.”

xiii
STATEMENT 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 governmental 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. 

xiv
ISSUES PRESENTED

ISSUE I: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING 

UTSWMC’S PLEA TO THE JURISDICTION WHEN APPELLEES DID NOT GIVE 

UTSWMC FORMAL NOTICE OF THEIR CLAIMS AND UTSWMC DID NOT 

HAVE ACTUAL NOTICE OF THEIR CLAIMS WITHIN SIX MONTHS FROM THE 

DATE OF INCIDENT?

ISSUE II: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING 

UTSWMC’S PLEA TO THE JURISDICTION WHEN NO TANGIBLE PERSONAL 

PROPERTY WAS NEGLIGENTLY USED BY ITS EMPLOYEES DURING THE 

ALLEGED NEGLIGENT MEDICAL TREATMENT IN QUESTION?

 

xv
NO. 05-15-00246-CV

In the Fifth Court of Appeals

Dallas, Texas

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 95TH 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 judgment dismissing the case against Appellant for lack of subject matter 

jurisdiction. 

1
STATEMENT 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 complications from the 

attempted transplant. (CR 2226-32, 2234). Dr. Matthias Peltz, a faculty cardiothoracic surgeon on UTSWMC, removed the lungs from the donor and participated 

in the implantation procedure of Mr. Klingsick. (CR 2226-2232, 2239). Mr. 

Klingsick 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 the lung 

preservation solution at a subsequent lung procurement. (CR 1518-30; RR 17-25, 

41).

2
B. 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. (CR1128). 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 

3
establishes, 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 

established that the individuals who actually did the mixing of preservation solutions 

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 THAM] 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 

4
concentration and not incorporating that” into STA’s policy. (CR 1420). He also 

acknowledged that STA regrets that “a mistake was made,” that “it wasn’t caught 

before [patients] got their transplant,” and that “it could have been caught and it 

wasn’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 mixed 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, 2010, 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 solution 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 

5
STA’s policy and flushed the lungs with the solution. (CR 1897 – 98, 1908, 1910, 

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 – 330:4; 331:22 – 332:2). During 

Mr. Klingsick’s surgery on July 23, 2010, the implanted lungs were procured and 

transported in the preservation solution mixed and prepared by STA. (CR763). 

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 from this surgery on 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 fluid that Ms. Reynolds mixed and 

prepared to transport the donor lungs. (CR 2274 – 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 

6
transplantation. (CR 2249 - 50). He testified his concern was that the preservation 

solution may have been too acidic, having a pH level below the optimal range 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 outof-range reading as possibly being too low (too acidic), below the optimal pH level 

of 7.4, not 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, he testified that the out-of-range 

result did not motivate 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 preservation 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 

7
a 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 indicated 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 the 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 instructed 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 lung 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 STA 

8
employees 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 1155). 

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, UTSWMC 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 months 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 

9
subsequently 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 Klingsick 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). Patricia 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 injury 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 testimony 

of other key STA officials. (CR 1824, 1827 – 28, 1831, 2098 – 99, 2103, 2108, 

2152). 

10
In 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. Okay.

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 protocol.

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 organ recovery, were trained to and did follow the

12 then existing written STA policy and protocol

11
13 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 the 

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 transplant 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 caused harm to Mr. 

Klingsick and Appellees was the lung preservation solution used to transport his 

donor lungs, which was not mixed or prepared by a UTSWMC employee. That 

12
solution was mixed and prepared by a STA employee.

Consequently, Appellees claims do not waive UTSWMC’s sovereign 

immunity under the TTCA. This failure deprived the trial court of subject-matter 

jurisdiction, requiring it to dismiss Appellees’ suit in its entirety as UTSWMC’s Plea 

to the Jurisdiction 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 Texas, its governmental 

units, and its officers 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 court’s jurisdiction is 

conferred by the 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 longstanding, well-established principles of Texas law.

13
A 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, it 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 subject-matter 

jurisdiction, 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 

14
2011, no pet.). Governmental units 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 State 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. Civ. 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).

15

 
UTSWMC’s sovereign immunity.

ISSUE I: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING 

UTSWMC’S PLEA TO THE JURISDICTION WHEN APPELLEES DID NOT 

GIVE UTSWMC FORMAL NOTICE OF THEIR CLAIMS AND UTSWMC

DID NOT HAVE ACTUAL NOTICE OF THEIR CLAIMS WITHIN SIX MONTHS 

FROM THE DATE OF INCIDENT?

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, during 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 against 

UTSWMC.

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

Immunity

The Notice of Claim provision in the TTCA provides in its entirety:

(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 ordinance 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 jurisdictional 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 that 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 that UTSWMC 

had actual knowledge is negated by the evidence in this case.

C. The Texas Supreme Court & Actual Notice

Concerning actual notice under §101.101(c), the Texas Supreme Court has

2 The discovery rule does not apply to claims under the TTCA Timmons v. Univ. Med. Ctr., 331 

S.W.3d 840, 848 (Tex. App.—Amarillo 2011, no 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).

17

 
issued three (3) landmark opinions which pertain to the TTCA’s notice of claim’s 

actual notice provision 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 based, 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 injury.

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.” See id.

18
at 347. Merely investigating an event is insufficient to provide actual notice of a 

claim. See 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 

and 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, the 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 Police report in question 

reported that the plaintiff had stated that she saw barricades, but none were blocking 

her way into the freeway. See id. at 538. As a result, the police report stated plaintiff 

drove onto 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 id. Additionally, the report did not indicate who 

was responsible for the missing barricades or rule out “the possibility that a private 

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 have 

the specific subjective awareness of fault required for actual notice because the 

19
police report did not indicate that the City was at fault. See id.

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 case is on-point with 

Appellees Klingsick’s suit.

In McQueen, the evidence consisted of medical records and a UTHSCH 

physician’s note in a progress report of a “‘bowel injury during hysterectomy’ that 

would delay [plaintiff’s] recovery.” Id. at 760. After the procedure in question, risk 

management was not notified, no supervising physician was given a “heads up” 

about the incident, and no UTHSCH review or investigation was done, “much less 

one leading to any assessment by UTHSCH that any particular error, even if 

20
‘technical,’ probably had occurred or that any portion of Teresa’s care ‘contributed’

to her injury.” Id. Additionally, no review concerning the “standard of care” 

occurred during the six months after the procedure. See id. With regard to the 

testimony 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 direct 

contact of any tool to [plaintiff’s] bowel 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 evaluate the bowel.” Id. The physician also testified that 

she “would 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 Court 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 Required “Subjective Signal”

In the case before the Court, the trial court denied UTSWMC’s plea to the 

jurisdiction based on Appellees’ assertion that within six (6) months of Mr. 

21
Klingsick’s surgery, a UTSWMC employee had the requisite subjective awareness

of its fault. (CR 2459-60)(RR 17-25, 41). The 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 23, 2010. Hence, at the latest, UTSWMC 

was entitled to notice of Appellees’ claims under the TTCA on or before January 23, 

2011. The evidence shows that the first time UTSWMC knew that Mr. Klingsick 

was 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 argued at 

the trial court that the knowledge Dr. Peltz had of an inconclusive result of a bloodgas analyzer test of the STA preservation solution on January 10, 2011, while 

performing a lung transplant procedure at Baylor Medical Center for a Baylor 

Medical Center patient, gave UTSWMC subjective awareness of its fault within the 

22
six (6) month notice period. This incident failed to provide UTSWMC with actual 

notice of the Klingsicks’ claims for multiple reasons.

At deposition, Dr. Peltz testified the January 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 

solution 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 testimony in the record conclusively established that the preservation 

23
solution 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 conclusively 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 348; 

Cathey, 900 S.W.2d at 341; McQueen, 431 S.W.3d at 761. The 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, Appellees 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 UTSWCM’s favor. See id.

24
ISSSUE II: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING 

UTSWMC’S PLEA TO THE JURISDICTION WHEN NO TANGIBLE 

PERSONAL PROPERTY WAS NEGLIGENTLY USED BY ITS EMPLOYEES 

DURING THE ALLEGED NEGLIGENT MEDICAL TREATMENT 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 condition or use of tangible property; or

3) premises defects.

25
Tex. 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, it 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 Houston v. Harris, 192 S.W.3d 167, 174 (Tex. App.–

Houston [14th Dist.] 2006, no pet.). In this case, based on Appellees’ allegations and 

the jurisdictional 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 

26
1523 - 24). More specifically, they alleged the negligence included 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 

the 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 negligence 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 and 

27
negligent 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 result, 

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 Property

Section 101.021(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, 128 S.W.3d 

244, 246 (Tex. 2004). “Use” means “to put or bring into action or service; to employ 

for 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 personal 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:

28
There 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 form 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, 469 (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, errors in medical 

29
judgment in assessing medical conditions, failure to act, failure to follow 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 Branch 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, failure 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 

30
Dept. 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 performing 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 needed, 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 information. See id. As a result, the Court stated:

[b]ecause the 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 piece 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 

31
transplant, 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 investigate, 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 hiring, 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.

This case truly focuses on the negligent preparation of lung preservation 

solution, which UTSWMC did not mix or prepare. It is undisputed 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 preservation 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 

32
claims 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 

health 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 court 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

WHEREFORE, 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’

33
suit be dismissed in its entirety. Appellant 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

34
CERTIFICATE OF COMPLIANCE

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 manner 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

SOMMERMAN & QUESADA, 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

Attorney for Appellees

35
Gary Lykins

THE BERRY FIRM, 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

SCHELL COOLEY 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

36
APPENDIX 

TAB

Trial Court’s Order denying Appellant’s Plea to the Jurisdiction, 

dated March 1, 2015..................................................................................................A 

TEX. CIV. PRAC. & REM. CODE §51.014(a)(8) .........................................................B

TEX. CIV. PRAC. & REM. CODE §101.001(3)(a) .......................................................C

TEX. EDUC. CODE §65.02(a)(7) ................................................................................D

TEX. EDUC. CODE §74.101 ..................................................................................... E

TEX. CIV. PRAC. & REM. CODE §101.101 ................................................................. F

TEX. GOVT. CODE §311.034 ....................................................................................G

TEX. CIV. PRAC. & REM. CODE §101.021 .................................................................H

TEX. CIV. PRAC. & REM. CODE §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 PAGEi 
4. 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 Interlocutory 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 

officer 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 Constitution, 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 under 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 com-

© 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 described 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 Subsection (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) Subsection (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 proceedings 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 appeals 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 DOCUMENT

© 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 Annotated Currentness

Civil Practice and Remedies Code (Refs & Annos)

Title 5. Governmental Liability

Chapter 101. Tort Claims (Refs & Annos)

Subchapter A. General Provisions

§ 101.001. 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 or 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 constitute the government of this state, 

including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, 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 improvement district, water control and preservation district, freshwater supply district, navigation district, conservation 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) equipment used in connection with the operation of floodgates or water release equipment by river authorities 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, board, commission, department, or office, other than a district or authority 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 statewide 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

§ 65.02. 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, including 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 University of Texas Southwestern Graduate School of Biomedical Sciences at Dallas; and

(C) The University of Texas Southwestern Allied Health 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 School 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 Science 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 School 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 Texas 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 established under Subchapter N1

, Chapter 74.

(b) The University of Texas System shall also be composed of such other institutions and entities as from time to time 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 of 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

The 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.

Credits

Acts 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

§ 101.101. Notice

Currentness

(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the 

day that the incident giving rise to the claim 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 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.

Credits

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

Notes 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)

§ 311.034. 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 unambiguous 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 requirements 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 DOCUMENT

© 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)

§ 101.021. 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 negligence of an employee acting 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 Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

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)

§ 101.022. 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 to 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 governmental 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 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 "I"