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NO. 12-21-00025-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EAST TEXAS SUPPORT SERVICES, 

INC., 

APPELLANT

V.

JUNE BROWN, INDIVIDUALLY AND 

AS REPRESENTATIVE OF THE 

ESTATE OF JAMES BROWN, 

DECEASED,

APPELLEE

§

§

§

APPEAL FROM THE 4TH

JUDICIAL DISTRICT COURT

RUSK COUNTY, TEXAS

MEMORANDUM OPINION

East Texas Support Services, Inc. (ETSS) appeals the trial court’s order denying its

motion to dismiss June Brown’s suit against it. We affirm.

BACKGROUND

ETSS is a company that contracts with Medical Transportation Management, Inc. (MTM) 

to deliver non-emergency medical transportation services. Clients who need transportation 

contact MTM to arrange a pickup or drop off. MTM then contacts a local company like ETSS, 

who provides a van to transport the client. ETSS does not receive any medical information about 

its clients. And in the case of an emergency, ETSS personnel are instructed to call 911 rather 

than render treatment.

On June 21, 2018, ETSS assigned one of its drivers, Evelyn Jernigan, to pick up and drop 

off James and June Brown. Jernigan drove the Browns to a doctor’s appointment in Longview, 

Texas. After the appointment, the Browns contacted ETSS, and Jernigan returned to transport 

them back to their home in Overton, Texas. 
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During the ride, James requested Jernigan stop at the Overton Pharmacy to pick up 

prescriptions. Jernigan agreed to take the Browns to the pharmacy; however, she stated that she 

could not wait for them to retrieve their prescriptions and they would need to find another way 

home. The Browns retrieved their prescriptions and proceeded home on their motorized 

wheelchairs. To get home, the Browns had to cross railroad tracks. As the Browns were 

crossing the railroad tracks, James became stuck in the tracks while the crossing arms came 

down. June was able to clear the tracks, but James was struck and killed by the oncoming train.

On October 30, 2018, June filed a lawsuit against ETSS alleging that it was negligent in 

hiring, training, and supervising Jernigan.1

 She further alleges that ETSS was grossly negligent. 

On October 16, 2020, ETSS filed a motion to dismiss June’s claims for failure to file an expert 

report under the Texas Medical Liability Act (TMLA). ETSS asserted that it is a “health care 

provider” under the TMLA and that June’s claims constitute “health care liability claims.” In 

response, June urged that neither ETSS nor MTM meet the definition of “health care provider” 

under the TMLA. Following a hearing, the trial court denied ETSS’s motion to dismiss. This 

appeal followed.

HEALTH CARE LIABILITY CLAIM

In its sole issue, ETSS argues the trial court erred in denying its motion to dismiss 

because it is a health care provider and Brown’s claims are health care liability claims.

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care liability claim for 

an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 

873, 875 (Tex. 2001); Cage v. Methodist Hosp., 470 S.W.3d 596, 600 (Tex. App.—Houston [1st 

Dist.] 2015, no pet.). That said, whether a claim constitutes a health care liability claim is a 

question of law that we review de novo. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 

575 S.W.3d 357, 363 (Tex. 2019). In determining whether a claim constitutes a health care 

liability claim, we consider the entire record, including the pleadings, motions, and responses, 

and relevant evidence properly admitted. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012).

1 June also sued Union Pacific Railroad Corporation and Union Pacific Railroad Company, and they are not 

parties to this appeal.
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Applicable Law

Under the TMLA, a plaintiff whose claim constitutes a health care liability claim must 

serve an expert report, with a curriculum vitae for the expert whose opinion is offered, on a 

defendant physician or health care provider within 120 days of the filing of an answer by the 

defendant. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2017); see also Weems, 575 

S.W.3d at 360–61. If the plaintiff fails to timely serve an expert report, then on the motion of a 

defendant physician or health care provider, the trial court must dismiss the plaintiff’s health care 

liability claim with prejudice. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); see also Weems, 

575 S.W.3d at 360–61. 

The TMLA defines a “[h]ealth care liability claim” as:

a cause of action against a health care provider or physician for treatment, lack of treatment, or 

other claimed departure from accepted standards of medical care, or health care, or safety or 

professional or administrative services directly related to health care, which proximately results in 

injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or 

contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2017); see also Ross v. St. Luke’s 

Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015). Thus, we consider three basic elements in 

determining whether a plaintiff’s claim constitutes a health care liability claim: (1) whether the 

defendant is a physician or health care provider; (2) whether the claim at issue concerns 

treatment, lack of treatment, or a departure from accepted standards of medical care, or health 

care, or safety, or professional or administrative services directly related to health care; and (3) 

whether the defendant’s act or omission complained of proximately caused the injury to the 

plaintiff. Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014); see

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). The TMLA creates a rebuttable 

presumption that a plaintiff’s claim is a health care liability claim if it is brought against a 

physician or health care provider and “is based on facts implicating the defendant’s conduct 

during the course of a patient’s care, treatment, or confinement.” Loaisiga, 379 S.W.3d at 256.

Here, June did not serve an expert report on ETSS at any time, so if Brown’s claims

against ETSS constitute health care liability claims, her suit must be dismissed. See Weems, 575 

S.W.3d at 360–61, 363 (because plaintiff did not serve expert report, if plaintiff asserted health 

care liability claim, suit must be dismissed with prejudice).
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Health Care Provider

ETSS argues that it constitutes a health care provider under the TMLA because its 

services are necessary for its customers’ medical treatment. Additionally, it argues that it is an 

agent or independent contractor for a health care provider, MTM. In response, June urges that 

neither ETSS nor MTM are licensed by the State of Texas to provide healthcare.

The TMLA states in pertinent part:

(A) “Health care provider” means any person, partnership, professional association, corporation, 

facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to 

provide health care, including:

(i) a registered nurse;

(ii) a dentist;

(iii) a podiatrist;

(iv) a pharmacist;

(v) a chiropractor;

(vi) an optometrist;

(vii) a health care institution; or

(viii) a health care collaborative certified under Chapter 848, Insurance Code.

(B) The term includes:

(i) an officer, director, shareholder, member, partner, manager, owner, or affiliate of a 

health care provider or physician; and

(ii) an employee, independent contractor, or agent of a health care provider or physician 

acting in the course and scope of the employment or contractual relationship.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12). The list of people and entities in the 

TMLA’s definition of a “health care provider” is not exclusive, and a person or entity not 

specifically enumerated may still constitute a health care provider under the TMLA. See Skloss 

v. Perez, No. 01-08-00484-CV, 2009 WL 40438, at *3–6 (Tex. App.—Houston [1st Dist.] Jan. 8, 

2009, no pet.) (mem. op.) (“The list of health care providers in section 74.001(a)(12) does not 

specifically include a[ ] [licensed professional counselor]; however, the list is non-exhaustive.”);

Christus Health v. Beal, 240 S.W.3d 282, 286–87 (Tex. App.—Houston [1st Dist.] 2007, no 

pet.), abrogated on other grounds by Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 

(Tex. 2012); see also Strobel v. Marlow, 341 S.W.3d 470, 474–75 (Tex. App.—Dallas 2011, no 

pet.); House of Yahweh v. Johnson, 289 S.W.3d 345, 351 (Tex. App.—Eastland 2009, no pet.).

The moving party has the burden of presenting evidence that the State of Texas has certified it as 

a healthcare provider. See Beal, 240 S.W.3d at 286-87; Brown v. Villegas, 202 S.W.3d 803, 806 

(Tex. App.—San Antonio 2006, no pet.). 
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ETSS urges that it meets the definition of “healthcare provider” because its transportation 

services are essential or necessary for the provision of healthcare. Specifically, it contends that it 

is a “501(c)(3) tax-exempt charitable organization that provides non-emergency medical 

transportation to patients to and from their medical appointments.” However, ETSS has not 

provided any license, certification, registration, or charter establishing its status as a health care 

provider. Therefore, the record is devoid of evidence that ETSS is “duly licensed, certified or 

registered or chartered by the State of Texas to provide healthcare.” See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001(a)(12)(A). 

Furthermore, ETSS’s argument might find stronger support if the TMLA’s “health care 

provider” definition had referred to a person “licensed . . . by the State of Texas to provide

products or services that have some relationship to health care.” See Verticor, Ltd. v. Wood, 

509 S.W.3d 488, 494 (Tex. App.—Austin 2015, pet. denied). But the Legislature did not write 

the statute that way—instead, it required that a “health care provider” be “licensed . . . by the 

State of Texas to provide health care.” Id.; TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12)

(emphasis added). This phrasing indicates that ETSS’s license, which the record contains no 

evidence of, must authorize it “to provide” something that is in itself “health care.” See id.; see 

also Brown, 202 S.W.3d at 806 (defendant laboratory and pathologist provided no evidence they 

were licensed healthcare providers); Doctors Data, Inc. v. Stemp, No. 03-12-00079-CV, 2014 

WL 3809742, at *3 (Tex. App.—Austin July 31, 2014, pet. denied) (mem. op.) (defendant 

laboratory was not licensed to provide health care); Obstetrical & Gynecological Assocs., P.A. v. 

Hardin, No. 01-13-00236-CV, 2013 WL 6047595, at *3 (Tex. App.—Houston [1st Dist.] Nov. 

14, 2013, no pet.) (mem. op.) (defendant provided no evidence it was licensed to provide health 

care). 

Alternatively, ETSS urges that it is an agent of MTM, which it argues is a health care 

provider. The only evidence to support this assertion is the “Medical Transportation Services 

Agreement,” which lists MTM as “a Missouri corporation.” ETSS provided no evidence that 

MTM is licensed, registered, certified, or chartered by the State of Texas to provide health care. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(12). 

Because ETSS failed to prove that it is a health care provider for which an expert report 

is required, we do not address whether June’s claims are health care liability claims. See TEX. R.

APP. P. 47.1. No expert report was required because there is no evidence that ETSS is a licensed 
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health care provider. Accordingly, we hold that the trial court did not abuse its discretion by 

denying ETSS’s motion to dismiss. We overrule ETSS’s sole issue.

DISPOSITION

Having overruled ETSS’s sole issue, we affirm the trial court’s judgment. 

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 18, 2021.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 18, 2021

NO. 12-21-00025-CV

EAST TEXAS SUPPORT SERVICES, INC.,

Appellant

V.

JUNE BROWN, INDIVIDUALLY AND AS REPRESENTATIVE

OF THE ESTATE OF JAMES BROWN, DECEASED,

Appellee

Appeal from the 4th District Court

of Rusk County, Texas (Tr.Ct.No. 2018-267)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed; all costs of this appeal are assessed against 

Appellant, EAST TEXAS SUPPORT SERVICES, INC., and that this decision be certified to 

the court below for observance.

James T. Worthen, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.