Court of Appeals of Texas, Twelfth District, Tyler
from the 114th District Court of Smith County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
University of Texas Health Science Center at Tyler (UTHSC)
appeals from the trial court's denial of its plea to the
jurisdiction in Norma Lynn Smith's negligence
action. In its sole issue, UTHSC contends the
trial court erred in denying the plea because Smith's
pleading does not demonstrate that UTHSC waived immunity to
suit. We reverse and render judgment dismissing Smith's
claims for want of jurisdiction.
Steven Cox, an employee of UTHSC, surgically removed
Smith's gall bladder. She experienced post-operative
complications. Smith sued UTHSC for medical negligence,
alleging waiver of immunity for injuries caused by use and/or
misuse of tangible personal property, an electrocautery
filed a plea to the jurisdiction asserting that Smith's
petition fails to establish a waiver of UTHSC's sovereign
immunity as required by the Texas Tort Claims
and moved for a dismissal for want of subject matter
jurisdiction. After a hearing, the trial court denied
the plea. UTHSC appealed the interlocutory order.
sole issue, UTHSC asserts that Smith's petition does not
establish that UTHSC waived its sovereign immunity. It argues
that Smith alleged that her post-operative complications were
proximately caused by Dr. Cox's use/misuse of an
electrocautery instrument but does not establish that he used
or misused any surgical instrument in a negligent manner or
that he damaged her biliary system. It further argues that
Smith's allegation that Dr. Cox failed to repair the
injury is an allegation of non-use of property which is not
actionable under the statute. Additionally, UTHSC asserts
that Smith's allegation that Dr. Cox negligently
performed a surgery that was not medically indicated is an
allegation of an error in medical judgment which is not
actionable under the statute.
matter jurisdiction is essential to the authority of a court
to decide a case. Tex. Ass'n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A plea to
the jurisdiction challenges the trial court's authority
to determine the subject matter of a specific cause of
action. Starkey ex rel. Ragsdale v. Andrews Ctr.,
104 S.W.3d 626, 628 (Tex. App.-Tyler 2003, no pet.). If a
party believes that the plaintiff's petition does not
show jurisdiction and cannot be amended to allege
jurisdiction, the party may file a plea to the jurisdiction
at any time. Id.
subject matter jurisdiction presents a question of law, we
review the trial court's ruling on a plea to the
jurisdiction de novo. Mayhew v. Town of Sunnyvale,
964 S.W.2d 922, 928 (Tex. 1998). In reviewing a plea to the
jurisdiction, we review the pleadings and any evidence
relevant to the jurisdictional issue. Tex. Dep't of
Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.
2001). We accord the trial court's decision no deference.
Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.
1998). We construe the plaintiff's pleadings liberally in
the plaintiff's favor and look to the pleader's
intent. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We take as
true all evidence favorable to the non-movant and indulge
every reasonable inference and resolve any doubts in the
non-movant's favor. Id. at 228.
to the doctrine of sovereign immunity, the State of Texas
cannot be sued in her own courts without her consent and then
only in the manner indicated by that consent. Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex.
2003). Absent the State's consent to suit, a trial court
lacks subject matter jurisdiction. Tex. Dep't of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per
curiam). The Texas Tort Claims Act provides a limited waiver
of immunity, allowing suits against governmental units under
certain, narrowly defined circumstances. Miller, 51
S.W.3d at 587. The Act provides that a governmental unit is
liable for personal injuries caused by a condition or use of
tangible personal property if the governmental unit would,
were it a private person, be ...