Reversed and Rendered and Majority and Dissenting Opinions filed March 

21, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00620-CV

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER

AT HOUSTON, Appellant

V.

RUSSELL DESOTO AND JUDY DESOTO, Appellees

On Appeal from the 152nd District Court 

Harris County, Texas

Trial Court Cause No. 2009-61332

D I S S E N T I N G O P I N I O N

I respectfully dissent. I would affirm the decision of the trial court denying

UTHSCH’s plea to the jurisdiction. The evidence raises at least a fact question1on 

 

1

―If the evidence raises a fact question on jurisdiction, the trial court cannot grant the plea, and 

the issue must be resolved by the trier of fact.‖ Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 

(Tex. 2010) (per curiam) (citing Tex. Dep’t of Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004)).
2

the following jurisdictional issues:

Judy suffered a personal injury (nicked ureter that lead to a loss of 

kidney);

Dr. Malik used tangible personal property (a surgical instrument); 

Dr. Malik’s use of a surgical instrument during the anterior lumbar 

interbody fusion proximately caused the nick to the ureter, and ultimately 

the loss of kidney; and

Dr. Malik would, according to the DeSotos’ expert witness, be liable as a 

private physician because he fell below the standard of care in 

responding to the initial ureter injury and such acts and omissions 

proximately caused Judy’s loss of kidney.

As such, the DeSotos established the elements of waiver of immunity as set 

forth in the plain language of section 101.0212and so the trial court properly 

denied the plea.

The majority nonetheless reverses, holding that ―use‖ in the statute actually 

means ―negligent use‖ and, because the DeSotos do not allege that Malik 

negligently used the scalpel, UTHSC is immune. The plain language of Section 

101.021 does not require that the ―use‖ itself be negligent. The plain language of 

Section 101.021 does not require that ―the governmental unit would, were it a 

private person, be liable to the claimant [for such use].‖ Because the majority’s 

analysis of the Tort Claims Act is a departure from the plain language of the statute 

and is unprecedented in Texas jurisprudence,

3

I respectfully dissent. 

 

2

Section 101.021 waives governmental immunity when the ―personal injury [is] caused by a 

condition or use of tangible personal . . . property if the governmental unit would, were it a private person, 

be liable to the claimant according to Texas law.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 

2011).

3

The cases relied upon by the majority are ―analogous‖ factually, but none holds that use means 

―negligent use.‖ Instead, these cases focus on whether the use of the medical instrument caused the 

injury. For example, in Kamel, the error of medical judgment—a decision to remove the testicle—

preceded use of the scalpel, and so the court held that the scalpel did not proximately cause the injury. 

Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston, 333 S.W.3d 676, 686 (Tex. App.—Houston [1st Dist.] 
3

The Legislature’s waiver of immunity under subsection (2) is limited by 

plain language in two distinct ways. First, the injury must be (a) caused by (b) a 

condition or use of tangible personal or real property. Second, there is still no 

waiver unless the governmental unit would be liable to the claimant under Texas 

law if it were a private person. So the majority’s concern that, if ―use‖ need not be 

―negligent use,‖ there will be a waiver of immunity in every case in which a 

governmental surgeon uses medical instruments is unfounded. A private physician 

is not liable in every case in which he or she uses a scalpel. A private physician is 

liable for medical malpractice; that is, acts or omissions that constitute a departure 

from the accepted standard of care which proximately causes injury. A 

governmental physician is not liable for medical malpractice unless he or she also 

uses tangible personal property to cause the injury. Stated differently, the plain 

language of the statute shows that the Legislature’s waiver of immunity for 

personal injury arising from governmental use of tangible personal property is 

already a subset of tort law; the waiver need not be judicially narrowed.

If the majority’s interpretation of the statute is correct, a governmental

physician is not liable for medical malpractice unless the principal act of 

malpractice is the use of tangible personal property. Under this interpretation, 

governmental physicians are all but immune as a matter of law. Moreover, as the 

majority’s interpretation would be equally applicable beyond medical malpractice,4

 

2010, pet. denied). Precisely the same circumstance caused the Waco Court of Appeals in Miers to 

conclude that the decision to remove teeth, not the use of instruments, caused the injury. See Miers v. 

Tex. A & M Univ. Sys. Health Sci. Ctr., 311 S.W.3d 577, 579–80 (Tex. App.—Waco 2009, no pet.). In 

this case, there is no error in medical judgment alleged before the injury. Thus, this case is not in the 

category of cases in which the tangible property is merely involved in or furnished the condition for the 

injury—it is the instrumentality. See Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 

S.W.2d 339, 342–43 (Tex. 1998).

4 The Tort Claims Act applies to all governmental units from the state and its agencies; to 

political subdivisions of the state such as school districts and water improvement districts; to emergency 

service organizations; and to ―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 
4

and is not limited to subsection (2),5the ramifications of the majority’s revision are 

incalculable.

The majority opinion takes a giant step in statutory interpretation where the 

Texas Supreme Court itself has been unwilling to take more than baby steps—and 

even then only because the Legislature has refused to assist. See, e.g., Lowe v. Tex. 

Tech Univ., 540 S.W.2d 297, 301 (Tex. 1976) (Greenhill, C.J., concurring) (―The 

purpose of this concurring opinion is to encourage the Legislature to take another 

look at the Tort Claims Act, and to express more clearly its intent as to when it 

directs that government immunity is waived.‖). After decades without legislative 

assistance, the Texas Supreme Court has held incrementally that ―use‖ means 

―use‖ through the following bright lines:

(1) use doesn’t mean failure to use, see Kerrville State Hosp. v. Clark, 923 

S.W.2d 582, 583 (Tex. 1996);

(2) use doesn’t mean nonuse, see White, 46 S.W.3d at 869–70; and

(3) use doesn’t mean allowing someone else to use, see Cowan, 128 

S.W.3d at 246.

More than ten years ago, Justice Hecht declared his belief ―that it is simply 

impossible for the courts to meaningfully construe and consistently apply the useof-property standard in the Tort Claims Act.‖ Tex. Dep’t of Crim. Justice v. Miller, 

51 S.W.3d 583, 591 (Tex. 2001) (Hecht, J., concurring). One consistency emerges

from the entire body of Texas Tort Claims Act jurisprudence: Texas courts have

 

under the constitution.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3) (West 2011).

5 The Texas Supreme Court instructs that ―use‖ is to be construed the same whether a court is 

interpreting subsection (1) or subsection (2). See Tex. Nat’l Res. Conservation Comm’n v. White, 46 

S.W.3d 864, 870 n.2 (Tex. 2001); see also San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 n.9 

(Tex. 2004).
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never interpreted ―use‖ to mean ―negligent use‖—until today.

/s/ Sharon McCally

Justice

Panel consists of Justices Boyce, McCally, and Donovan. (Donovan, J. , majority).