NO. 07-01-0251 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A NOVEM BER 29, 2001

______________________________ TEXAS ATTORNEY GENE RAL JOHN CORNYN, APP ELLANT V. FIFT Y-TW O MEMBERS OF THE SCHOPPA FAMILY, ET AL., APPELLEES

_________________________________ FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-512,435; HO NORABL E J. BLA IR CHER RY, JUD GE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In this interlocutory appeal, the Attorney General, appellant, challenges the denial bythe trial court of his special exceptions and m otion to deny the claims of appellees. The suit a rises out of an action brought by 52 m embers of the Schoppa fam ily, Marilyn and Tom Davis, Max ine Cato, the N.L. Douglas fam ily, the George W eiss fam ily, and 168 other named individuals on behalf of their famili es, living and deceased, herein appellees. In2

the ir action, appellees sought to enj oin Texas Tech University Health S ciences Center (TTUHSC) or

Tex as T ech Uni ver

sity (th e Un iver

sity ) fr omdes tro ying DN A s am ples , br ain tissue, and m edical records collected in furtherance of research on Alzheim er’s disease. The Universi ty is not a party to this particular appeal. Appellees, who are individual donorsand representatives of deceas ed donors, also sought the return of sam ples given atthe re quest of TTUHSC if it “was unw illi ng or unable to continue genetic based research.” W e reverse the or der of the tri al court and remand the cause for further proceedings in accordance w ith this opinion. The research proje ct in question was b egun by Dr. Shirley Poduslo in 1994. S he proposed the research to ex am ine the influen ce of g enetic fa ctorsin the development of Alzheimer’s, Parkinson’s, and M ul tipl e Sc lerosis conditions. The research required the collection of

DNA sam ples, brain tissu e, and d etailed m edical recor ds on largenum bers of people, with a particular em phasis on fam ily groups. The University obtained written consent from each donor or

re pr es en ta ti ve to co nd uc t t hi s r es ea rc h. Th e c on se nt fo rms specified thatDr. Poduslo w as the prima ry researcher responsible for the proj ect and that the subjec

ts’ m edical record s w

ould be a vaila ble to her. The form s also provided that the donorscould “di scontinue . . . pa rtici pation i n the study at any ti me.” The research project
wasfunded by a specific appropriation from the Texas legislature. By January 2000, the project had accum ulated a DNA bank with over 10,000 sam ples from 2, 200 family lin es, 150 brains (137 from patients diag nosed with Alzheimer’s disease), as well as a large collection of m edical records. The project had received favorable reviews from3

researc hers at other institutions. However, the 1999 legislature did not ma ke a separate appropriation for the project.
In 1999, the University discovered that 140 con sent fo rm s were m iss ing. In thefall of that year, the Departm ent Chair, R.B. S chiffer, had Dr. Guy M cKhann of Johns-Hopkins review th e program . After doing so, by letter dated January 14, 2000, Dr. M cKhann referred to Dr. Poduslo’s efforts to develop the DN A databank as “herc ulean” and o nl y recom mende d that she collaborate with m ore researchers fromothe r d isciplines. The parties differ on the details of what transpired in late 1999 and early 2000 and the record
as to that tim e is notfully develop ed. Ho w eve r, it is undisputed that Schiffer w rote a letter to Poduslo “relieving h er” as head of research and assum ing acting directorship of the pr og ra m. Poduslo wa s not perm itted access to the lab or to the donor charts. One m onth later, Schiffer w rote to the programdonors notifying them that he wou ld act as program director and Poduslo w

ould “continue as an acti ve s enior investigator.” In the letter, he not if ied do nors that TTUHSC “i s comm itted to conti nuing and expanding our re search efforts.”
In a March 27, 2000 lett er to Podusl o, Schiffer outlined conditions by which she
w ould be perm itted to continue aspects of t he research. Appellees alleged that so met i me in October 2000, Schiffer denied he had prevented Poduslo fromobtaining replacement consent forms, so Poduslo sent approximately 7 0 letters to donors concerning replacem ent forms. How

ever, byletter dated October 27, 2000, Schiffer stated that P oduslo had sent1 The record does not r eveal what the “IRB ” is, oth er t han thefac t th at it is responsible for reviewing and approving research records. 4 “unauthorized letters” to donors for w hom consent form s could not be found and directed her to “sto p im m ediately” asthere was “great potential for litigati on liabil ity for unauthorized direct correspondence.”
On Decem ber 10, 2000, Sandra W hell y, chair of the TTUHSC IRB 1 sent a letter to Po dus lo stating one protocol authorizing the research (#90068) expired on Decem ber 1, 2000, and a s eco nd p rotoco l (#9 006 7) w ould exp ire on Decem ber 14. In the letter, she directed that all mailing of consent form s m ust occur by De cem ber 14, and all replies must be receiv ed by January 25, 2000 [sic]. The failure to do so would require destruction of those donors’ samples.
In the suit underlying this appeal, appe llees sued Dr. Joel Ku per sm ith in his capacityas dean of the TTUHS C School of M edicine and Dr. Schiffer in his capacity as Cha ir of the Departm ent of Psyc hiatry. In te r a lia , they alleged the research project was a cha rita ble trust and they sou ght an injunction preventing TTUHSC from the “destruction of any DNA sam ple s, brains or medical records associ ated with the DNA Alzheimer’s Bank.” They also sought a holding that upon “a determ ination that [TT UH SC ] isuna ble
or u nw illi ng to continue genetic based research with Dr. P oduslo as the principal investigator,” the school m ust return the DNA sam ples to t hos e donors wh o no longer wished to participate in the research. In the alternative, they requested the appointm ent of a new trustee and the transfer of all DNA sam ples to that trustee.5

On January 12, 2001, TTUHSC filed its answ er. In that answ er, it asserted numerous special excepti ons, as well as affi rmative defenses which includ ed appell ees’ lack of standing and its sovereign im munity. On March 6, 20 01, appellant filed a petition in intervention containing special exceptions asserting that appellant was the only proper partyto represent the interests of the public in matters involving charitable trusts. After the
case was rem oved to federal court and returned, ap pel lant fi led a motion to di smiss appell ees’ suit for lack of j urisdiction. In h is m otio n, a ppe llant cha rac ter ized itas a “global plea to the j urisdiction seeking a dismissal of the P laintiffs based on their lack of standing.” Thismo tion was overruled by thetria l cou rt. He nce , th is app eal. In pur suin g hisapp eal, appellant presents a single issue querying whet her the trial court erred in denying his plea to the j urisdiction of the trial court based upon appellees’ lack of standing.
Our first tas k is to de term ine wh ether w e have j urisdiction of

this interloc utory app eal. Tha t istru e be cau se alack of a ppe lla te ju risdiction is fundamental error. New York Underw

rit ersIns. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990). A ppellees mount a tw o-f old argum ent that this court lacks j urisdiction to consider this appeal. In doing so, they

first contend we lack jurisdiction over this appeal because it doesnot fall
w ithin thelim ited circ um sta nce s in which interlocutory appeals are perm itted under section 51.014 of the Civil Practice and R eme dies Code. Tex. Civ. Prac. & Rem . Code Ann. § 51.014 (Vernon Supp. 2001).6

Because the trial court denied appellant’s m otion to dismiss, w e m ust first consider whether subsection (a)(8) of the statute autho rizes interlocutory appeals from thegrant or denial of a plea to the j urisdiction “by a governmental unit as t hat term is defined in Section 101.00 1.” Under the statute, a “governm ental unit” includes the state and its agencies thatconstitute the governm ent of Texas, including all departments , offices, and any organ of governm ent whos e authority is derived from the state constitution. SeeTex. Civ. Prac. & Rem . Code Ann. §10 1.001(Vernon Supp. 2001). In Perry v. Del Rio, 2001 W L 893716 , (Tex

. App. A ustin 2001, pet. dism .), the court had occasion to thoroughly explore the meaning of the term“governm ental uni t” and ca m e to theconclus ion that t he gove rnor, lieutenant governor and the secretary of s tate were included in the statutory term

. Id. at pp.3-4. W e agree with that h olding and the court’s reasoning and, i n applying that reasoning, we hold that theAttorney General is likewise a “governm ental unit” within the pur view of t he s tat ute . Th us, w e dohave j uris dict ion to co nsid er a ppe llant ’s app eal. Appellees alsocon ten d th at aple a to t he jurisdiction is not a proper procedural device for chall enging l ess than all th e plaintiffs in a case. They reason that this is not act ually an in terloc utory appeal within the purview of section 51.014(a)(8) of the C ode because, if it

is d ete rm ined tha t ap pella nt is theonly pro per par ty, he w ould rem ain in the
case. Howe ver, appellant filed a neutral int ervention p etiti on that made no substantive claims. If we reverse the trial court’s denial of appellant’s plea to the j urisdiction, the suit
w ould be dismissed b ecause appellant has not asked f or a ny s ubs tan tiveclai m s. Thisis true because an intervention is subj ect to dismissal if it does not assert a cause or causes7

of action or otherwise adopt the affirmat ive claims of litigating parties. Se e Casteel v

. Gunning , 402 S.W.2d 529, 542-543 (Tex.Civ.App.--E l Paso 1966, w rit ref’d n.r.e.). If no affirmative relief is requested and the party or parties seeking affirm ati ve re lief are dismissed, th er e wa s n o c l ai m or claims to adj udicate and, therefore no subj ect m atter jurisdiction.
We mu st next determ ine appellant’s contention that appell ees, the parties seeking to invoke the ju risdiction of the trial court, lack standing to do so. It is well established that standing is implicit in the con cept of subj ect m atter jurisdiction. See Texas Ass’n of Business v. Texas

Ai r Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993). The core of appell ant’s arg um ent

on a ppe al istha t heis t he o nly p rop er p art y topro tec

t th e pu blic interest in this pr oject which all parties ch aracter ize as be ing in the na ture of acha rita ble trust. That being so, we will refer to the projectas a trust. Im plicit in appel lant’s argum ent is the assum ption that the public’s interest in the trust is the only interest that is affe cted bythis litigati on. He prem ises that argum ent on t he characterization that in their suit, appellees “request a court order allowing them to control the research without i nterference from Texas Tech.” Bottom ed on that prem ise, he concludes that appellees have no standing to as se rt cl ai ms “in matters pertaining to how the charity operates or effect uates its charitable mission. That is w hatthe Donor plaintiffs want to do in this case” and ne ither thecon sen t fo rm or a ny o the r au tho rity allow s th emto exe rcis e su ch cont rol.2 The specif ic wording of ap pell ees’ request for r elie f is:

Upon fi nal h ear ing a nd adeterm inat ion t hat Def end ants ar

e un ableo r unwilling t o cont inue genetic based research w ith Dr. S.E. P oduslo as the principal i nvestigator that the Court o rder Defendants toreturn all samples to those participants whoactively withdraw their consent to further pa rticipation in the study. . . . And that the C ourt further order tha t th e materials be returned to plaintiffs at such institution as may be designated by Plainti ffs.

8 Howeve r, the p lain language of the relief sought by appellees in their amended petition does not show

theyare trying to direct or control the res earch in t his suit. Rather, theyallege that theyprovided blood and brain samplesand personal m edical records for a speci fic r esear ch project and i f TTUHSC is not going to pursue that research, or is not going to m ake use of specific sam ples, they seek a return of t hose sam ples. 2 Theonly portion of the relief sought by appellees w hich arg uab lyappearsto see k cont rol of any part of the research pr oject is the reference to “Dr. Poduslo as t he principal investigator.” The reason for this qualification seems clear, as she is the only person listed on the consent forms as the investigator responsible for the pro j ect and to whom

m edical re cor

ds could be released. For this reason, and under this record, the authorities cited by appellant on the issue of donors seeking to ex ercise control over the adm inistration of a charitabl e trust
are not applicable. See Carroll v. Ci ty of Beaumont, 18 S .W.2d 813 (Tex .Civ.A pp.-- B eaumo nt1918, writ ref’d) (plaintiff all eged m ismanagem ent of trust a nd sough t
accoun ting); Victims v. Funds, Third P arties and

Reeves County

, 715 F. Supp. 178 (W .D. Te x. 1989) (p laintiffs sou ght accounting of relief donat ions); Russel v. Yale Univ. , 737 A.2d9

941(Conn.App.Ct. ) (donors alleged mism anagem ent of trust and sought to enjoin school reorganization).
The existence of a public inter est in a public trust does not necess arily preclude private interests in the sam e trust. The dist in ction between public and private interests
wasdiscussed in Carr oll, in which the court used as exam ples of private interests in a pub lictrust s ituations in which donor s wer e “claim ing a rever

sionary interest by reason of a forfeiture for the breach of the trust, the term ination of the trust for some reason, such
as theheir

s of thedon or o r so m eon e en title d in private ri ght to the proper ty as a result of
a revision.” Carroll, 18 S.W.2d at 819. The facts allege d by ap pe ll ee s he re , whi ch we must accept as true for the purpose of determ ining their standing, Bybee v. Fireman’s Fund Ins. Co. , 160 Tex. 42 9, 331 S.W.2d 910, 917 (1960), essentially allege a termination of thetru st b y re aso n of TTU HS C’ s ap par

ent dec is ion t o dis continue the research for which th e donation s were m ade. Thus, i f the trial court were to find that th e evidence justified a f indi ng of termination of the research, an d thereby terminati on of the trust because of a failure of

purpose, it could also fin d that appel lees had a re versionar y interest thatwould support standing. Carroll , 18 S.W.2d 819. Such a disposition wou ld be consistentwith the rule applicable to failures of express trus ts, the effect of which is to create a resulting trust in favor of the settlor. See Bogert, Trusts, section 147 (6 th Ed. W est 1987).10

Our required acceptance of appel lees’ allegation of the apparent termination of the research and destructi on of the sa m ple s is also r elevant to de termination of ap pell ant’s argument

that appellees do not have standing w hen the gen era l rules applicable to standing are conside red. Appell ant cites El Paso Community Partners v. B. & G. Sunrise Joint Ventu re , 24 S.W.3d 620 (Tex.App. --Austin 1998, no w rit), as enum erating the factor s to be considered in determ ining standing to bring a suit.
Those factors are w hether: 1) theplain tiff hassus tain ed, or isin imm ediate danger of sustaining, som e direct injury as a resu lt of the act about w hich comp laint is made; 2) there is a di rect relationship between the alleged injury and theclaim to be adj udicated; 3) the party has a personal stake in the controversy; 4) the c hallenged action has caused the plaintiff some inj ury in fact, either econom ic, recreational, environmental, or otherw ise;
or 5) the plaintiff is an appropriate party to assert the pub lic interest in t he m atter, as w ell as the plaintiff’s own interest. Id. at 624.
In challe nging app elle es’ standing, a ppell ant argues thei r only inter est is in the discover yof treat ment

o r a cu re fo r A l zh ei mer ’s di se as e. Th at i s t ru e a s t o s ome appell ees. For those living appellees who have provided blood sam ples and a ccess to thei r me dical records, the destruction of those s amples w ould cause no direct i nju ry , be cause their desi re to support Al zheimer’s research by pro vidin g DNA sam ples an d medical records would not b e fo rec lo sed by TTUHSC ’s decision to discontinue the research or not to use the s amples provided. It is not clear how they

would be harm ed by3 We express no opinion as to wh ether any agreem ent or representation not

expressed in the conse nt forms w ould be enf orceable as to TTUHSC.

11 anymisrepresentation by TTUHSC about continuing the res ear

ch. It app ear s th at t he o nly harm those particular appellees would suffer w ould be to be d enied the o pportunity to discover if they had a genetic predisposition to the disease. That harmwould be high ly speculati ve in nature in that it was not e stablished that such gen etic marke rs were identified in individual app ellee s an d, e ven if t hey w ere , th ere is nothing to sho w that those particular appellees could not have their DNA exam ined elsewhere for that purpose

. Even so, as to thoseappellees who have authorized the use of blood sam ples from deceased rela tive s or , m ore par ticu larly , m ig ht ha ve donated part or all of a deceased relati ve’s brain, their interest would be very different from that of the general public. The decision by those appellees to donate thos e type of sam ples may well have been the res ult of difficult personal decisions regarding the dispositi o n of their de ceased rel ative’s remains. The donation of s uch rem ains would also preclude participation in any other research pro jects.
Additio nall y, the co nsent f orm s do not

purport to be integrated agreem ents between the parties. Therefore, evidence of other agreem ents or representation could b e introduced. If that evidence should reveal that thedonations were m otivated by representations concerning TTUHSC’s com mitm ent to the research and th ose representations were false, those donor s would have suffered di rect harm as a result of such conduct. 3 They m ay also be able to show t hatreligious considerations motivated the12

disp osition of

the brain material in a manner different fromthe ordinary practices of a research university. As to those individual appellees, appellant would not be the proper party to li tigate those issues
We also note that

the donor consent form s specifically provide donors with the right to “discontinue my participation in this study at any timeI choose,” and did not spec ify the effect of the donor’s elec tion to “dis continue”participation . When the evidence is m ore fully developed , a factfinder might find that the par ticip ants have a revers ionary interest in the sam ples supplied. Such an interest w ould support standing. See Carroll , 18 S.W.2d at 819.
For the reaso ns we have stated, the record be fore us does not estab lish which of appellees ground their claims on donations of decedents’ blood and brain t issue. W e mus t, therefore, reverse the order of the t rial court and remand this proceeding for further proceedings consistent w ith this opinion.
John T. Boyd Chief Justi ce Publish.