NUMBER 13-18-00092-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

RAMONA ROGERS, M.D., MODESTO ZAMBRANO,

STEPHANIE CUMPIAN, ROLANDO FLORES,

HECTOR ONTIVEROS, PRISCILLA NIETO,

SONIA HERNANDEZ-KEEBLE, BLAS ORTIZ JR.,

DAVID MORON, M.D., JAIME FLORES AND

RIO GRANDE STATE CENTER, Appellants,

v.

DAVID SAXON BAGLEY, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE

ESTATE OF JEREMIAH RAY BAGLEY, Appellee.

 

On appeal from the 444th District Court

of Cameron County, Texas.

 

O P I N I O N

Before Chief Justice Contreras and Justices Rodriguez and Benavides1

Opinion by Justice Benavides

 

1

 The Honorable Nelda V. Rodriguez, former Justice of this Court, was a member of the panel 

when this case was orally argued but did not participate in this decision because her term of office expired 

on December 31, 2018.
2

The question before us is whether a civil rights claim brought under 42 U.S.C. § 

1983 that alleges excessive force against health care providers and a state hospital is 

subject to the expert report requirement of § 74.351 of the civil practice and remedies

code See 42 U.S.C. § 1983; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. Appellee 

David Saxon Bagley, individually and as representative of the estate of Joshua Ray 

Bagley, sued the Rio Grande State Center (RGSC) and a number of its employees for 

the death of his son Joshua who died after he was physically restrained at RGSC by 

RGSC staff. 

Appellants, Ramona Rogers, M.D., Modesto Zambrano, Stephanie Cumpian, 

Rolando Flores, Hector Ontiveros, Priscilla Nieto, Sonia Hernandez-Keeble, Blas Ortiz 

Jr., David Moron, M.D., Jaime Flores, and RGSC, argue that Bagley’s claims are 

healthcare liability claims (HCLCs) that must be dismissed for Bagley’s failure to file an 

expert report pursuant to § 74.351(b). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. 

By two issues, appellants appeal the trial court’s denial of their motions to dismiss 

Bagley’s claims Id. We affirm.

I. BACKGROUND

Joshua was a 37-year-old man with mental health issues who was involuntarily 

committed to RGSC for several months before he died. On February 7, 2015, Joshua 

allegedly struck a staff member who was assigned to monitor him. Immediately after, 

five other staff members forcibly restrained Joshua. In doing so, they tackled him and 

pinned him to the floor for approximately ten minutes. While he was restrained, a staff 

member forcibly administered an injection to calm Joshua. After Joshua was released 
3

from restraint, he returned to his room but was disoriented and unsteady. Joshua went 

into cardiac arrest shortly thereafter. RGSC staff performed CPR and called EMS. 

Joshua was pronounced dead at the hospital shortly thereafter.

Joshua’s autopsy reflected numerous injuries. He was bruised; his thoracic 

spinous processes at T-2 through T-7 were fractured; aspects of his right ribs 4 through 

9 were fractured and displaced; aspects of his left ribs 8 through 10 were fractured and 

displaced, resulting in laceration of the parietal pleura; both lungs were lacerated; his 

spleen was lacerated; and he had blood in his pleural and peritoneal cavities. The 

medical examiner reported Joshua’s cause of death to be “excited delirium due to 

psychosis with restraint-associated blunt force trauma.” 

Bagley’s original petition asserted negligence under the Texas Tort Claims Act 

(TTCA), and civil rights claims pursuant to §§ 1983 and 1988. See 42 U.S.C. §§ 1983, 

1988; TEX. CIV. PRAC. & REM. CODE ANN. ch. 101. Bagley filed a first amended petition 

before any of the defendants filed answers and again asserted negligence claims under 

the TTCA and civil rights claims. See 42 U.S.C. §§ 1983, 1988; TEX. CIV. PRAC. & REM.

CODE ANN. ch. 101.

Appellants responded to the suit with general denials, asserted application of 

Texas civil practice and remedies code chapters 74 and 108, official immunity, and sought 

dismissal pursuant to § 101.106(e) of the civil practice and remedies code. See TEX.

CIV. PRAC. & REM. CODE ANN. chs. 74, 108, § 101.106(e). 

Appellants also filed a motion to dismiss for Bagley’s failure to serve expert reports 

in August 2017. See id. § 74.351(b). Appellants argued that Bagley’s claims 

constituted HCLCs. Bagley responded that § 74.351 did not apply because he sought 
4

relief under the civil rights statute § 1983 for excessive force. In response, Bagley 

attached the autopsy report, Joshua’s death certificate, and the report of the Office of 

Inspector General from the Texas Health and Human Services which concluded that 

RGSC employees used improper restraint techniques.

The trial court held a non-evidentiary hearing during which Bagley orally nonsuited 

RGSC. On January 30, 2018, Bagley filed his fourth amended petition that nonsuited 

RGSC and all non-constitutional claims from this action. The trial court denied the 

motion to dismiss on January 30, 2018. Appellants filed this interlocutory appeal. See 

id. § 51.014(a)(9).

II. RGSC

We must first determine whether RGSC is a proper party to the appeal. Bagley

non-suited his claims against RGSC which was no longer a party at the time the motion 

to dismiss was denied or when the notice of interlocutory appeal was filed. RGSC argues 

that its motion to dismiss sought dismissal with prejudice and an award of mandatory 

reasonable attorneys’ fees and costs before the nonsuit, and therefore its claim for 

dismissal, costs, and fees survived the nonsuit. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(b). 

“Under the Texas Rules of Civil Procedure, [a]t any time before the plaintiff has 

introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a 

case, or take a non-suit, which shall be entered in the minutes.” Univ. of Tex. Med. 

Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006)

(quoting TEX. R. CIV. P. 162). However, a nonsuit or dismissal “shall have no effect on 

any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal
5

. . . .” TEX. R. CIV. P. 162; see Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008); Fulp 

v. Miller, 286 S.W.3d 501, 509 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.) 

(holding that a motion to dismiss pursuant to § 74.351(b) constitutes a motion for 

sanctions). Accordingly, we hold that RGSC may properly appeal the trial court’s failure 

to grant its motion to dismiss with prejudice and failure to award attorneys’ fees and costs.

III. HEALTH CARE LIABILITY CLAIMS

By their first issue, appellants argue that Bagley’s claims are HCLCs. See TEX.

CIV. PRAC. & REM. CODE ANN. ch. 74. “Determining whether claims are HCLCs requires 

courts to construe the TMLA [Chapter 74]. We review issues of statutory interpretation 

de novo.” Loaisiga v. Cerda, 379 S.W.3d 248, 254–55 (Tex. 2012). 

According to the statutory definition, a lawsuit is a HCLC if it has the following three 

elements: (1) the defendant is a health care provider or physician; (2) the claimant’s cause 

of action is for treatment, lack of treatment, or other claimed departure from accepted 

standards of medical care, health care, or safety or professional or administrative services 

directly related to health care; and (3) the defendant’s alleged departure from accepted 

standards proximately caused the claimant’s injury or death. Tex. Civ. Prac. & Rem. 

Code § 74.001(a)(13); see Loaisiga. 379 S.W.3d at 255.

RGSC is a state hospital that provides inpatient and outpatient mental health 

services and is defined to be a health care institution. See TEX. CIV. PRAC. & REM. CODE 

ANN. § 74.001(a)(11). A health care provider is defined as any employee of a health care 

provider or health care institution. Id. § 74.001(a)(12)(B)(ii). Bagley’s claims meet the 

first of the three-part test of a HCLC; they are against healthcare providers, a healthcare 

institution, and physicians.
6

The second part is whether Bagley’s claims are for a departure from accepted 

standards related to health care. See id. § 74.001(a)(13). Bagley asserts that the staff 

used excessive force in restraining his son. Analysis of the cause of action “focuses on 

the facts underlying the claim, not the form of, or artfully-phrased language in, the 

plaintiff’s pleadings describing the facts or legal theories asserted.” Loaisiga, 379 

S.W.3d at 255. Thus, 

claims premised on facts that could support claims against a physician or 

health care provider for departures from accepted standards of medical 

care, health care, or safety . . . directly related to health care are HCLCs, 

regardless of whether the plaintiff alleges the defendant is liable for breach 

of any of those standards. 

Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). “The broad language of the 

[Texas Medical Liability Act] TMLA evidences legislative intent for the statute to have 

expansive application.” Loaisiga, 379 S.W.3d at 256. “The breadth of the statute’s text 

essentially creates a presumption that a claim is an HCLC if it is 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.” Id. The presumption is 

rebuttable. Id.

Texas courts have interpreted HCLCs broadly to include an employee who was 

injured while employed by a health care facility or a person injured by a physician who 

committed an assault. See Loaisiga, 379 S.W.3d at 258–59; Tex. W. Oaks Hosp., LP v. 

Williams, 371 S.W.3d 171, 174–75 (Tex. 2012) (holding that claims for on-the-job injuries

against the hospital sustained by a psychiatric technician caused by a patient were 

HCLCs); Morrison v. Whispering Pines Lodge I, L.L.P., 428 S.W.3d 327, 332 (Tex. App.—

Texarkana 2014, pet. denied) (holding nursing home employee’s claim for injury from slip 
7

and fall on wet floor constituted a HCLC). 

In Morrison, the court concluded “that, if there is at least an indirect connection 

between Morrison’s claim and the provision of health care, we are bound to rule that the 

claim is a HCLC.” 428 S.W.3d at 332; see also Oak Park, Inc. v. Harrison, 206 S.W.3d 

133, 135 (Tex. App.—Eastland 2006, no pet.). 

In Oak Park, a patient receiving treatment for addiction, Harrison, was injured in 

the facility’s common area when another patient attempted to escape. 206 S.W.3d at 

141 While the escaping patient was being restrained, Harrison was injured in the melee. 

Harrison sued alleging negligence and premises liability causes of action. Id. He did 

not file an expert medical report and the trial court declined to dismiss his claims. Id. at

136. The court of appeals reversed and rendered judgment dismissing Harrison’s claims 

with prejudice after holding that his “claims are health care liability claims.” Id. at 141. 

However, in Ross v. St. Luke’s Episcopal Hospital, the Texas Supreme Court held 

that a premises liability case is not necessarily a HCLC unless there is a nexus between 

the safety standards allegedly violated and the provision of health care. 462 S.W.3d 

496, 504–05 (Tex. 2015) (holding that claim for injuries of a visitor who slipped and fell 

near the hospital exit doors was not a HCLC). The pivotal issue is whether the safety 

standards implicated the defendant’s duties as a health care provider. Id. at 505.

Although Bagley alleged excessive force, his claims are brought against health 

care providers in a health care institution over the restraint of a patient. Restraint of 

mental health patients implicates healthcare safety issues. See TEX. HEALTH & SAFETY 

CODE ANN. § 552.052 (requiring training of state hospital employees on the “safe and 

proper use of restraints,” “prevention and management of aggressive or violent behavior,”
8

and “emergency response,” among other subjects). Under Texas law, Bagley’s claims 

are directly related to the safety of mental health patients, the second part of the test for 

a HCLC. 

The third and final portion of the test is whether Joshua’s death was caused by the 

alleged departure from accepted standards. Bagley asserts that the providers used 

excessive force in restraining Joshua which caused his death thus meeting the third part 

of the test for a HCLC. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13);Oak Park, 

206 S.W.3d at 141. We sustain appellants’ first issue.

IV. FEDERAL CIVIL RIGHTS CLAIMS

Bagley argued to the trial court that 42 U.S.C.§ 1983 preempted Chapter 74. See

42 U.S.C. § 1983; TEX. CIV. PRAC. & REM. CODE ANN. ch. 74. By appellants’ second 

issue, they argue that § 1983 does not preempt the requirements of § 74.351 that a 

person who asserts a HCLC is required to file and serve an adequate medical expert’s 

report within 120 days after each defendant has answered the suit. See 42 U.S.C. § 

1983; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351. 

A. Standard of Review and Applicable Law

Whether § 1983 preempts § 74.351 is a question of law that we review de novo. 

See In re GlobalSantaFe Corp., 275 S.W.3d 477, 489 (Tex. 2008) (orig. proceeding); DHL 

Express (USA) Inc. v. Falcon Express Int’l, Inc., 408 S.W.3d 406, 410 (Tex. App.—

Houston [1st Dist.] 2013, pet. denied); see also Baker v. Farmers Elec. Coop., Inc., 34 

F.3d 274, 278 (5th Cir. 1994).

The United States Constitution provides that the laws of the United States are “the 

supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the 
9

Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. Thus, when a state law conflicts 

with federal law, it is preempted and has no effect. Williamson v. Mazda Motor of Am., 

Inc., 562 U.S. 323, 330 (2011); Maryland v. Louisiana, 451 U.S. 725, 747 (1981); BIC 

Pen Corp. v. Carter, 251 S.W.3d 500, 504 (Tex. 2008); Kan. City S. Ry. Co. v. Oney, 380 

S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Whether substantive 

or procedural, state law is preempted when it interferes with or restricts remedies under 

a federal statute.”) (citing Felder v. Casey, 487 U.S. 131, 138 (1988)). However, the 

Supreme Court “limits the preemption doctrine by presuming that Congress did not intend 

to displace state law.” Great Dane Trailers v. Estate of Wells, 52 S.W.3d 737, 743 (Tex. 

2001) (citing Maryland, 451 U.S. at 748).

In resolving questions of inconsistency between state and federal law, courts must 

look not only at the particular federal statutes and constitutional provisions, but also at 

“the policies expressed in [them].” Moore v. Brunswick Bowling & Billiards Corp., 889 

S.W.2d 246, 248 (Tex. 1994). Of particular importance is whether application of state 

law “would be inconsistent with the federal policy underlying the cause of action under 

consideration.” Johnson v. Ry Express Agency, Inc., 421 U.S. 454, 465 (1975). 

Section 1983 is “one of the ‘Reconstruction civil rights statutes’ that this Court has 

accorded a sweep as broad as [their] language.” Griffin v. Breckenridge, 403 U.S. 88, 

97 (1971) (quoting United States v. Price, 383 U.S. 787, 801 (1966)). When the federal 

statute does not directly speak to preemption, the court “must be guided by the goals and 

policies of the Act” in determining preemption. Int’l Paper Co. v. Oulette, 479 U.S. 481, 

493 (1987); Slade v. City of Marshall, Tex., 814 F.3d 263, 267 (5th Cir. 2016). 
10

B. Preemption Analysis

1. Federal Causes of Action Brought in State Court

Federal and state courts have concurrent jurisdiction over several federal causes 

of action including those brought pursuant to § 1983). See 42 U.S.C. § 1983; see also 

Garrett v. Moore-McCormack Co., 317 U.S. 239, 245 (1942) (holding concurrent 

jurisdiction over Jones Act cases); Scott v. Atchison, Topeka & Santa Fe Ry Co., 572 

S.W.2d 273, 281 (Tex. 1978) (recognizing that federal law controls substantive rights in 

FELA claims brought in state court).

When a litigant files suit in state court to recover under a federal statute, he is 

entitled to the full benefit of federal law. See Garrett, 317 U.S. at 244 (holding that state 

rules regarding construction of a release had to give way to admiralty rules relating to 

seamen); Scott v. Godwin, 147 S.W.3d 609, 615 (Tex. App.—Corpus Christi–Edinburg 

2004, pet. dism’d). State courts therefore apply federal substantive law and state rules 

of procedure. See Scott, 572 S.W.2d 273, 276; Mo. Pac. R.R. Co. v. Cross, 501 S.W.2d 

868, 870 (Tex. 1973) (discussing FELA claims). “[W]here state courts entertain a 

federally created cause of action, the ‘federal right cannot be defeated by the forms of 

local practice.’” Felder, 487 U.S. at 138 (quoting Brown v. W. Ry. of Ala., 338 U.S. 294, 

296 (1949)). 

2. Purpose and Scope of § 1983

We must determine whether the state procedural law stands in the way of 

accomplishing the goal of the federal statute. “[T]he central purpose [of § 1983] is to 

provide compensatory relief to those deprived of their federal rights by state actors.”

Felder, 487 U.S. at 141; see Farrar v. Hobby, 506 U.S. 103, 112 (1992); Lynch v. 
11

Household Fin. Corp., 405 U.S. 538, 543 (1972) (tracing history of § 1983 back to the 

Civil Rights Act of 1866 which guaranteed broad and sweeping protection of basic civil 

rights). “Since the purposes and objectives of § 1983 are themselves broad—

compensation of persons injured by deprivation of federal rights and prevention of abuses 

of power by those acting under color of state law—the preemptive sweep of § 1983 is 

obviously considerable.” Beeks v. Hundley, 34 F.3d 658, 661 (8th Cir. 1994) (citing

Robertson v. Wegmann, 436 U.S. 584, 590–91 (1978)).

The broad scope of § 1983 provides a remedy for claims of excessive force by 

state actors against persons involuntarily committed for mental health reasons. See 

Davis v. Rennie, 264 F.3d 86, 117 (1st Cir. 2001) (affirming judgment in favor of 

involuntarily committed mental patient against mental hospital personnel who allegedly 

used excessive force during restraint); Andrews v. Neer, 253 F.3d 1052, 1060 (8th Cir. 

2001) (reviewing § 1983 claims made by the family of a mental patient who died after 

alleged excessive force during take down); see also Rushing v. Simpson, No.

4:08CV1338, 2009 WL 4825196, *9 (E.D. Mo. Dec. 11, 2009) (dismissing excessive force 

claims on summary judgment after finding force used was reasonable); Nicolaison v. 

Brown, No. Civ. 05-1255, 2007 WL 851616, *11 (D. Mn. Feb. 6, 2007) (Mag. op.) (denying 

summary judgment on excessive force claim against officers without expert testimony). 

The standard used for violations of the Fourteenth Amendment by use of excessive force 

was set by Kingsley v. Hendrickson: whether “the force purposely or knowingly used 

against [the plaintiff] was objectively unreasonable” under the existing facts and 

circumstances. ___ U.S. ___, 135 S.Ct. 2466, 2473 (2015). 
12

3. Purpose and Scope of TMLA

In contrast to the broad remedial aim of § 1983 for violations of constitutional 

requirements by state actors, the TMLA was enacted in 1977 to combat a medical 

malpractice crisis in Texas. See Scoresby v. Santillan, 346 S.W.3d 546, 552 (Tex. 

2011); State v. Emeritus Corp., 466 S.W.3d 233, 243 (Tex. App.—Corpus Christi–

Edinburg 2015, pet. denied). The current expert report requirement became part of the 

revised framework of the TMLA after 2005. Section 74.351(b) requires a trial court to 

dismiss a plaintiff’s claims with prejudice and to award the defendant’s attorneys’ fees 

and costs if a plaintiff fails to file a timely and adequate medical expert report. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(b). Thus, the expert report requirement is more 

than a procedural rule; it “‘is a threshold requirement for the continuation of a lawsuit.’” 

Med. Hosp. of Buna Tex., Inc. v. Wheatley, 287 S.W.3d 286, 294 (Tex. App.—Beaumont 

2009, pet. denied). Section 74.351 further provides limitations on discovery and requires 

dismissal of a plaintiff’s claims with prejudice early in the litigation if the plaintiff fails to 

timely file a compliant report. See Passmore v. Baylor Health Care Sys., 823 F.3d 292, 

298 (5th Cir. 2016) (declining to apply § 74.351(b) in cases brought in federal court 

because it is inconsistent with the federal rules of procedure); see also Med. Hosp. of 

Buna Tex., Inc., 287 S.W.3d at 294. 

As discussed, the TMLA has been interpreted broadly. As an example, persons 

who allege intentional assault against a health care provider are required to file expert 

reports even if the conduct alleged constitutes a criminal act. See Loaisiga, 379 S.W.3d 

at 256 (holding that allegations of assault by patient against physician who fondled her 

breast during a medical exam for flu symptoms required an expert report pursuant to § 
13

74.351(b) because she failed to conclusively negate that her claim was a HCLC). 2 

Excessive force claims, like assault claims, do not ordinarily arise in the provision of health 

care.

3. Discussion

After considering the purpose and scope of both § 1983 and the TMLA, the Court 

must determine whether the expert report requirement in § 74.351 is “consistent with the 

goals of the federal civil rights laws, or does the enforcement of such a requirement 

instead stan[d] as an obstacle to the accomplishment and execution of the full purposes 

and objectives of Congress?” Felder, 487 U.S. at 138; see Haywood v. Drown, 556 U.S. 

729, 735 (2009). 

The Felder Court held that a Wisconsin notice statute was preempted by § 1983 

because it 

conflicts in both its purpose and effects with the remedial objectives of § 

1983, and because its enforcement in such actions will frequently and 

predictably produce different outcomes in § 1983 litigation based solely on 

whether the claim is asserted in state or federal court, we conclude that the 

state law is pre-empted when the § 1983 action is brought in a state court.

487 U.S. at 138. The Felder Court further explained,

[A]pplication of the notice requirement burdens the exercise of the federal 

right by forcing civil rights victims who seek redress in state courts to comply 

 

2

 When suing a healthcare provider, a plaintiff may avoid the expert report requirement only 

under the circumstances outlined below:

[A] claim against a medical or health care provider for assault is not an 

HCLC if the record conclusively shows that (1) there is no complaint about 

any act of the provider related to medical or health care services other 

than the alleged offensive contact, (2) the alleged offensive contact was 

not pursuant to actual or implied consent by the plaintiff, and (3) the only 

possible relationship between the alleged offensive contact and the 

rendition of medical services or healthcare was the setting in which the act 

took place. 

Loasiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012).
14

with a requirement that is entirely absent from civil rights litigation in federal 

courts. This burden, as we explain below, is inconsistent in both design 

and effect with the compensatory aims of the federal civil rights laws. 

Second, it reveals that the enforcement of such statutes in § 1983 actions 

brought in state court will frequently and predictably produce different 

outcomes in federal civil rights litigation based solely on whether that 

litigation takes place in state or federal court. States may not apply such 

an outcome-determinative law when entertaining substantive federal rights 

in their courts.

Id. at 141. 

In Haywood, the Court held that a New York statute that limited § 1983 claims 

against correctional officers to a single court with no right to a jury trial, no attorneys’ fees, 

and strict notice provisions was preempted by federal law. 566 U.S. at 737, 742; see 

also Godwin v. Mem’l Med. Ctr, 130 N.M. 434, 443–44, 25 P.3d 273, 282 (N.M. Ct. App. 

2001, no. cert.) (holding that tort claims notice requirement was preempted by the 

Emergency Medical Treatment and Active Labor Act).

Section 74.351 operates differently than the notice requirements at issue in Felder 

and in Godwin. Section 74.351’s expert report requirement serves two purposes: (1) to 

inform the defendant of the specific conduct the plaintiff has called into question; and (2) 

to provide a basis for the trial court to conclude the plaintiff’s claims have merit. See Am. 

Transitional Care Ctrs of Tex. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (considering 

a previous version of TMLA); McAllen Hosps., L.P. v. Gonzalez, 566 S.W.3d 451, 456 

(Tex. App.—Corpus Christi–Edinburg 2018, no pet.); see also Thilo Burzlaff, M.D., P.A. 

v. Weber, No. 04-17-00520-CV, 2018 WL 1176378, at *6 (Tex. App.—San Antonio Mar. 

7, 2018, no pet.). 

As in Hayward which involved a statute designed to protect correctional officers 

from perceived frivolous claims for damages, the TMLA, including § 74.351, provides 

protection to health care providers, physicians, and institutions from perceived frivolous 
15

claims and pretrial discovery. See TEX. CIV. PRAC. & REM. CODE ANN. ch. 74; Am. 

Transitional Care Ctrs of Tex., 46 S.W.3d at 877.

3

 Similarly to Felder and Godwin, the 

expert report requirement provides the state actors with early notice of the details of the 

claims against them and a means of early dismissal of those claims when the requirement

is not met. See Felder, 487 U.S. at 144; Godwin, 130 N.M. at 443–44, 25 P.3d at 282. 

In no other § 1983 action is a state plaintiff required to establish the merits of his or her 

claim against a state actor so quickly; instead, the ordinary rules of civil procedure apply. 

Although the expert report requirement does not uniquely discriminate against the federal 

right, it uniquely burdens the state court plaintiff under § 1983 differently than a similar 

plaintiff who sues in federal court. That difference can be dispositive. Compare Bogart, 

257 S.W.3d 354, 373 (Tex. App.—Austin 2008, no pet.) (reversing trial court’s finding that 

expert report was adequate and rendering judgment against plaintiff) with Passmore, 823 

F.3d at 299 (reversing dismissal for failure to provide expert reports and allowing medical 

malpractice claim to proceed).

The Texas Supreme Court recognizes that state procedural rules must give way 

to federal preemption when they conflict with the goals of the federal statute. See In re 

GlobalSantaFe Corp., 275 S.W.3d at 489. In GlobalSantaFe Corp., the court found that 

a portion of civil practice and remedies code chapter 90 addressing asbestos and silicosis 

 

3 As the Texas Supreme Court explained:

Because expert testimony is crucial to a medical-malpractice case, knowing what specific 

conduct the plaintiff’s experts have called into question is critical to both the defendant’s 

ability to prepare for trial and the trial court’s ability to evaluate the viability of the plaintiff’s 

claims. This makes eliciting an expert’s opinions early in the litigation an obvious place to 

start in attempting to reduce frivolous lawsuits. 

Am. Transitional Care Ctrs of Tex. v. Palacios, 46 S.W.3d 873, 876–77 (Tex. 2001).
16

injuries was inconsistent with the federal Jones Act. Id. It held that § 90.004(b) which 

imposed a threshold impairment requirement could not be applied in those cases. Id.

(“We further conclude that Chapter 90 must not be interpreted to impose a higher 

standard of proof for causation than the federal standard applicable to Jones Act cases.”). 

The GlobalSantaFe Court also held that other portions of Chapter 90, including the expert 

report component, were not preempted. Id. Unlike the expert report requirement in § 

74.351(b) though, the chapter 90 requirement in the pre-2003 statute did not require 

dismissal of a plaintiff’s claim or that discovery be stayed until a compliant report was 

filed. See Oney, 380 S.W.3d at 801 (discussing preceding version of §§ 90.003, 90.004, 

and 90.007); TEX. CIV. PRAC. & REM. CODE ANN. § 90.07(d). 

In Oney, a FELA suit for a railroad worker’s death from lung cancer arising out of 

his asbestos and silica exposure, the court of appeals held that portions of the 2005 

version of Chapter 90 were preempted. Oney, 380 S.W.3d at 799. The goal of the 

FELA was to compensate railroad workers who were being injured and killed in their 

employment and for whom common law remedies had proved to be inadequate. Id. 

After considering the goals of FELA, the Oney court held that §§ 90.003, 90.004, and 

90.007 were preempted because they interfered with FELA’s goal of providing a broad 

remedy to injured railroad workers.4 Id. at 808. 

Appellants seek dismissal with prejudice, along with attorneys’ fees and costs for 

Bagley’s failure to file an expert medical report. See TEX. CIV. PRAC. & REM. CODE ANN. 

 

4 The current version of § 90.003 provides detailed requirements for expert medical reports for 

persons asserting an asbestos related injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 90.03. Section 

90.004 provides similar requirements for persons asserting a silica-related injury. Id. § 90.04. Section 

90.007 provides for dismissal of any suit in which a claimant fails to comply with the requirements of §§ 

90.003 and 90.004. Id. § 90.007.
17

§ 74.351(b); see also Med. Hosp. of Buna Tex., 287 S.W.3d at 294 (“Like dismissal under 

§ 74.351, an award of costs and attorney’s fees under § 74.351 is not discretionary.”). 

After considering the goals of § 1983 to provide a broad remedy for redress of 

unconstitutional actions by state actors, and the different focus of Chapter 74, we hold 

that the expert report requirement of § 74.351 conflicts with the purpose of § 1983 and its 

application unfairly burdens a state court § 1983 claimant in a manner that can be 

dispositive. Accordingly, in this narrow class of cases, we hold that § 1983 preempts § 

74.351 when claims for excessive force occur within a healthcare institution or against a 

healthcare provider or physician. See Oney, 380 S.W.3d at 808.

We overrule appellants’ second issue. 

IV. CONCLUSION

Although we sustained appellants’ first issue, because we hold that § 1983 

preempts § 74.351, we affirm the trial court’s order.

GINA M. BENAVIDES,

Justice

Delivered and filed the

13th day of June, 2019.