Geffrey Klein, M.D. and Baylor College of Medicine v. Cynthia Hernandez as the Parent and Next Friend of N.H., A Minor--Appeal from 152nd District Court of Harris County
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Opinion issued April 21, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00569-CV
GEOFFREY KLEIN AND BAYLOR COLLEGE OF MEDICINE, Appellants
V.
CYNTHIA HERNANDEZ, AS NEXT FRIEND OF NAHOMY HERNANDEZ,
A MINOR, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2003-49449
OPINION CONCURRING ON REHEARING
I withdraw my concurring opinion on rehearing dated April 17, 2008 and
substitute this concurring opinion on rehearing in its stead.
I respectfully concur in the panel=s judgment on rehearing.
Baylor=s Appeal
In a portion of its opinion on rehearing, the majority holds that we have
no jurisdiction under Texas Civil Practice and Remedies Code section
51.014(a)(5) over the appeal of appellant Baylor College of Medicine
(ABaylor@)Cthat is, that we have no jurisdiction to the extent that Baylor
appeals the denial of its summary-judgment ground that sought judgment
based on appellant Dr. Geoffrey Klein=s immunity from individual liability. See
TEX. CIV. PRAC. & REM. CODE ANN. ' 51.014(a)(5) (Vernon Supp. 2007). The
majority correctly bases this holding on the Texas Supreme Court=s recent
opinion in Texas A&M University System v. Koseoglu, in which the supreme
court indicated that an entity like Baylor would not be considered a Aperson@
within the meaning of section 51.014(a)(5). 1 See 233 S.W.3d 835, 843 (Tex.
2007).
What the panel does not acknowledge, however, is that the language
from Koseoglu on which it relies is dictum, not a holding. I write separately to
explain why, despite the fact that the relied-upon language from Koseoglu is
1
The Texas Supreme Court issued its opinion in Texas A&M University
System v. Koseoglu during the pendency of the motions for rehearing
and for en banc reconsideration in this appeal.
2
dictum, I agree that we must follow it here. I also write respectfully to request
that the Texas Supreme Court revisit this and other dictum from Koseoglu.
A.
What We Held Before
Section 51.014(a)(5) provides that A[a] person may appeal from an
interlocutory order@ that Adenies a motion for summary judgment that is based
on an assertion of immunity by an individual who is an officer or employee of
the state or a political subdivision of the state . . . .@ TEX. CIV. PRAC. & REM.
CODE ANN. ' 51.014(a)(5) (Vernon Supp. 2007) (emphasis added).
On
original submission, we held that we had jurisdiction under section
51.014(a)(5) over Baylor=s appeal from the denial of its summary-judgment
motions based on Dr. Klein=s immunity from individual liability. See Klein v.
Hernandez, No. 01-06-00569-CV, 2007 WL 2264539, at *9 (Tex.
App.CHouston [1st Dist.] Aug. 3, 2007), withdrawn, No. 01-06-00569-CV (Tex.
App.CHouston [1st Dist.] Apr. 17, 2008, no pet. h.). We reasoned that, although
the term Aperson@ in the preliminary text of section 51.014(a) is not defined,
reading Aperson@ to be broader than just the Aindividual@ on whose immunity
from liability the summary-judgment motion was based comported with the
statutory definition of Aperson@ that applies to the Texas Civil Practice and
Remedies Code generally. Id. at *8. Under that definition, Aperson@ includes
3
A>corporation, organization, government or governmental subdivision or
agency, business trust, estate, trust, partnership, association, and any other
legal entity.=@ Id. (quoting TEX. GOV=T CODE ANN. ' 311.005(2) (Vernon 2005)).
That definition, we determined on original submission, was broad enough to
include Baylor. Id. at *9.
B.
What Our Implicit Reasoning Was
At the heart of our reasoning concerning section 51.014(a)(5) was the
fundamental understanding that the term Aperson@ in the preliminary text of
section 51.014(a) is independent of, and not limited by, any language within
any of the subsections following it. This understanding is consistent with the
grammatical structure of section 51.014(a). The preliminary text contains the
subject, verb, preposition, and prepositional object that apply to all
subsections: AA person [the common subject] may appeal [the common verb]
from an interlocutory order [the common preposition and its object] . . . that
. . . .@ The common subject Aperson@ is modified by nothing. The subsections,
in contrast, are alternative restrictive clauses that modify the common
prepositional object of the sentence: they are 11 alternative phrases that each
modify the common prepositional object Aorder.@
Thus, any descriptive
language within each of the subsections of section 51.014(a) cannot, as a
4
matter of grammar, modify the common subject of the sentenceCAperson,@ in
the preliminary language of section 51.014(a).
Rather, that descriptive
language within the subsections modifies either the sentence=s common
prepositional object (Aorder@) or modifies phrases that modify that common
prepositional object.
For example, regarding subsection (5), the entire statutory sentence can
be broken down as follows:
Subject:
A person
Verb:
may appeal
Preposition:
from
Prepositional object:
[an interlocutory] order . . .
Compound restrictive
clause modifying the
prepositional object: that denies a motion for summary judgment that
is based on an assertion of immunity by an
individual who is an officer or employee of the
state or a political subdivision of the state.
Within the restrictive clause that modifies Aorder,@ there are multiple restrictive
clauses or prepositional phrases, each of which modifies a phrase that,
eventually,
serves
to
modify
the
sentence=s
prepositional
object.
Grammatically speaking, the restrictive clause Awho is an officer or employee
5
of the state or a political subdivision of the state@ simply cannot be read to
modify the common subject Aperson@; rather, it can modify only the word
Aindividual.@ This understanding was reflected, albeit not expressly analyzed,
in the conclusion reached in our previous opinion.
C.
What Koseoglu Did
I set out the bases for our prior opinion=s express holding and its implicit
reasoning concerning section 51.015(a)(5) because, in the later-issued
Koseoglu, there is dictum appearing both to support and to undermine that
holding and reasoning. For example, in one portion of dictum, the Koseoglu
court reasons:
The text of Section 51.014(a) makes it clear that the Awho@ [who
may appeal] applicable to each subsection is the term Aperson@
that appears at the beginning of the statute. There is no indication
that the phrase[] Aan individual who is an officer or employee of
the state@ . . . in Section[] 51.014(a)(5) . . . [is] intended to modify
the term Aperson.@ Instead, those phrases and others in the
various subsections of the statute describe exactly Awhat@ may be
appealed from an interlocutory order.
Koseoglu, 233 S.W.3d at 842. (I refer herein to the above-quoted dictum as
Athe First Dictum.@) The First Dictum recognizes that the term Aperson@ in the
preliminary text of section 51.014(a) (i.e., the statutory sentence=s common
subject), which defines the entity or person whom the statute allows to appeal,
is not modified or limited by the descriptive text that appears within the
6
subsections following it. That is, for purposes of section 51.014(a)(5), the
meaning of Aperson@ is not limited in any way by the phrase Aan individual who
is an officer or employee of the state or a political subdivision of the State.@
Our previous interpretation of section 51.014(a)(5) is in accord with the First
Dictum of Koseoglu.
But further dictum in Koseoglu appears to undermine our previous
interpretation of section 51.014(a)(5).
In particular, the Koseoglu court
reasoned:
For example, . . . there is no other way to read Section 51.014(a)(5) than
to conclude that only an Aindividual who is an officer or employee of the
state or a political subdivision of the state@ may appeal an interlocutory
order denying a motion for summary judgment. The only other entity
that would generally have standing to file such an appeal would be a
governmental body, but the words of Section 51.014(a)(5) offer no
indication or suggestion that it applies to any entity other than a state
official, the only entity which it describes. This stands to reason because
an official sued in his individual capacity would assert official immunity
as a defense to personal monetary liability, which is well suited for
resolution in a motion for summary judgment.
Id. at 843.
Dictum.@)
(I refer herein to the above-quoted dictum as Athe Second
The Second Dictum indicates that the term Aperson@ in the
preliminary text of section 51.014(a) is not to be read independently, but
should instead be read as being limited by the phrase Aan individual who is an
officer or employee of the state or a political subdivision of the state@ that appears in
7
subsection (5). That is, in the Second Dictum, the Koseoglu court views a modifier
(Aan individual who is an officer or employee of the state or a political subdivision of
the state@) of the statutory sentence=s prepositional object (Aorder@) as also modifying
the sentence=s subject (Aperson@). See id.
These dicta contradict one another. Specifically, in the Second Dictum, the
court indicates that the restrictive language used in subsection (5) to describe the
motion on which the ruling is made also describes the person who may appeal that
ruling. This is the opposite of the relationship that the First Dictum, which was based
on the statutory sentence=s grammatical structure, views the two phrases to have. I do
not believe that these two dicta can be reconciled.
One of the reasons for the Second Dictum=s departure from the statutory
sentence=s grammatical structure, and for the resulting contradiction in Koseoglu=s
dicta, appears to be the court=s conflation within the Second Dictum of two distinct
concepts affecting appellate jurisdiction: (1) one=s standing to appeal a ruling because
one has a justiciable interest in that ruling, in the abstract, and (2) one=s designation
under the interlocutory-appeal statute to take the appeal, whether one has a justiciable
interest in the ruling or not. The two concepts represent only two of at least four ways
in which an appellate court may lack jurisdiction over an appeal. For example, in the
case of an interlocutory appeal such as this, an appellate court will lack subject-matter
8
jurisdiction if (1) the appeal is untimely filed;2 (2) the appeal is rendered moot after its
proper perfection; 3 (3) the appellant lacks standing to complain of the interlocutory
ruling that is appealed; 4 or (4) no statute or rule allows an interlocutory appeal by that
person or from that ruling. 5 Each of these grounds is, as a general rule, independent;
the existence of any one deprives the appellate court of jurisdiction over the
interlocutory appeal.
In the First Dictum, the Koseoglu court does not mention standing (or
justiciable interest) to appeal the ruling mentioned in subsection (5), but instead gleans
2
See, e.g., Harris County Toll Rd. Auth. v. Southwestern Bell Tel. , L.P., No. 0105-00668-CV, 2006 WL 2641204, at *2 (Tex. App.CHouston [1st Dist.] Sept.
14, 2006, pet. granted); see also TEX. R. APP. P. 2, 25.1(b), 26.3.
3
See, e.g., Valley Baptist Med. Ctr. v. Gonzales, 33 S.W.3d 821, 822 (Tex.
2000).
4
See, e.g., In re H.M.M., 230 S.W.3d 204, 205 (Tex. App.CHouston [14th Dist.]
2006, no pet.).
5
See, e.g., Stary v. Debord, 967 S.W.2d 352, 352B53 (Tex. 1998).
9
the statute=s meaning solely from its grammatical structure, reasoning that the term
Aperson,@ which designates whom the statute allows to appeal, is not restricted by any
language in subsection (5)Cor in any other subsections, for that matter. Koseoglu,
233 S.W.3d at 842. In contrast, in the Second Dictum, the Koseoglu court injects into
its reasoning the concept of who has standing (or a justiciable interest) to appeal and
then blends that jurisdictional concept with the independent jurisdictional concept of
whom the statute allows to appeal. See id. at 843 (employing term Astanding@ and
speaking in those terms, as well as considering that subsection (5) allows appeals only
from denials of the referenced summary-judgment motion). The Second Dictum thus
reflects a view that the Legislature intended two things for each subsection of section
51.014(a): (1) that the sentence=s common subject (Aperson@) be limited only to those
who have a justiciable interest to appeal the ruling described in the particular
subsection and (2) that those who have a justiciable interest to appeal the ruling
described in the particular subsection be limited to those who are named or necessarily
implied within that subsection. See id.
D.
Why I Believe that the Dicta in Koseoglu Should Be Revisited
There are three reasons why I believe that the First Dictum of Koseoglu
correctly interprets section 51.014(a)(5) and that the Second Dictum does not. First,
as explained above, the First Dictum comports with section 51.014(a)=s grammatical
10
structure.
Second, under the Second Dictum of Koseoglu, the common subject Aperson@
could mean different things depending on the subsection with which it is being read.
In my view, it is doubtful that the Legislature intended for the common subject of
section 51.014(a) to mean different things when applied to different subsections of the
same section.
Third, implicit in the Second Dictum=s merging the concepts of standing to
appeal and the statutory right to appeal is the view that the Legislature, in section
51.014(a), intended to declare who has a justiciable interest to challenge certain orders
on appealCin every case and under any possible set of facts. The purpose of section
51.014(a) is not to do this; rather, its purpose is to provide what orders may be
appealed interlocutorily. Cf. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352,
365 (Tex. 2001) (AThe purpose of section 51.014(a)(3) of the Texas Civil Practice and
Remedies Code, which allows interlocutory appeals of certain class-certification
rulings, is to ensure that the costly process of a class action, with its attendant
potential for irremediable harm to a defendant, does not proceed when there is no
basis for certifying a class.@). I glean this purpose from the fact that the Legislature
(1) employed the very broad term Aperson@ to describe who can appeal the orders
listed in section 51.014(a)=s subsections; (2) structured the overall section so that,
11
grammatically, the term Aperson@ is not limited by anything; and (3) focused each
subsection on a particular type of order that can be appealed interlocutorily. Reading
section 51.014(a)=s plain language, I simply see no intent by the Legislature to decree
which entities have a justiciable interest in appealing the listed orders.
And although the concepts of standing to appeal and the statutory right to
appeal often overlap, this is not always the case, as they truly are independent
concepts. Here, for example, Baylor (which was a party below before non-suit)
asserts that it has a justiciable interest in pursuing an appeal of the denial of its
summary-judgment motions based on the immunity from individual liability of Dr.
Klein, its employee, because Baylor (1) could be liable under a respondeat superior
theory if the non-suit is invalid and (2) may eventually have to indemnify Dr. Klein
under statute even if the non-suit is valid. 6 The majority correctly does not reach the
6
See TEX. CIV. PRAC. & REM. CODE ANN. '' 104.001B.009 (Vernon 2005); TEX.
HEALTH & SAFETY CODE ANN. ' 312.007(a) (Vernon 2001); see also
Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 10B11 (Tex.
App.CHouston [14th Dist.] 2006, pet. denied) (reasoning, under section
51.014(a)(5), that although immunity from individual liability necessarily
applies only to individuals, Aan agency or institution may be shielded
from respondeat superior liability for its employee=s negligence if the
employee possesses@ such immunity from liability, so that Aa motion for
summary judgment by the employer of the putative official may be
>based on an assertion= of@ individual immunity from liability Afor the
purposes of determining whether an interlocutory appeal is available,
12
merits of these standing arguments in its opinion, and I likewise do not reach them
here. But I note that if Baylor is correct that it has standing, in the abstract, to contest
a judgment rendered against its employee in his individual capacity, then a problem
arises in interpreting section 51.014(a)(5)Cas the Second Dictum of Koseoglu
doesCso that the only entity with standing to appeal is the one named in that
subsection, i.e., the individual employee. A more reasonable interpretation is that the
Legislature employed the very broad term Aperson@ as section 51.014(a)=s common
subject exactly because the Legislature did not wish to determine who has standing to
appeal the designated rulingsCso that the statute=s focus would not be on who had a
justiciable interest in appealing a ruling, but would instead be on what rulings could
be appealed.
E.
Why I Nonetheless Agree with the Majority=s Disposition
ADictum is not binding as precedent under stare decisis.@ Edwards v. Kaye, 9
S.W.3d 310, 314 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). Nonetheless,
Athere is an exception to the precedential value of dictum depending on how it is
even though the employer may not qualify for@ individual immunity from
liability); see also Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 470B71
(Tex. App.CHouston [1st Dist.] 2002, no pet.) (indicating in dictum that
Baylor could have invoked appellate jurisdiction under section
51.014(a)(5) had its doctors moved for summary judgment on basis of
official immunity and had plaintiffs alleged vicarious liability against
Baylor).
13
classified, obiter dictum or judicial dictum.@ Id. AJudicial dictum, a statement by the
supreme court made very deliberately after mature consideration and for future
guidance in the conduct of litigation, is >at least persuasive and should be followed
unless found to be erroneous.=@ Id. (quoting Palestine Contractors, Inc. v. Perkins,
386 S.W.2d 764, 773 (Tex. 1964)). Were the Second Dictum of Koseoglu merely
obiter dictum, I would dissent from the majority=s holding based on it, arguing that our
holding on rehearing should comport with Koseoglu=s First Dictum, as did the relevant
holding in our original opinion.
However, I conclude that the Second Dictum from Koseoglu is judicial dictum
that best predicts the supreme court=s interpretation of section 51.014(a), generally,
and of subsection 51.014(a)(5), specifically. I reach this conclusion because the
Koseoglu court used similar reasoning to support its actual holding concerning section
51.014(a)(8):
Section 51.014(a)(8) differs from Section[] 51.014(a)(5) . . . because, by
its plain language allowing for interlocutory appeals of orders granting or
denying pleas to the jurisdiction, it cannot be read as applying solely to a
governmental unit, the entity which it describes. Interpreting
Agovernmental unit@ to modify the term Apersons,@ as Koseoglu would
have us do, would preclude an aggrieved plaintiff, who is plainly not a
governmental unit, from bringing an interlocutory appeal to challenge
the grant of a jurisdictional plea. This would be inconsistent with the
express language of Section 51.014(a)(8). It would be irrational for the
Legislature to have intended that a governmental unit be the only
Aperson@ who may appeal from an interlocutory order because a
governmental unit would have no reason to appeal the grant of a plea to
14
the jurisdiction. For the entire phrase Agrants or denies@ to be given
effect, the statute must allow an appeal to be filed by both a
non-governmental plaintiff challenging the grant of a plea to the
jurisdiction and a governmental defendant challenging the denial of one.
Koseoglu, 233 S.W.3d at 843. This reasoning views descriptive words within a
subsection to modify not only the sentence=s prepositional object (Aorder@), but also, in
effect, to modify the sentence=s subject (Aperson@). Put another way, the reasoning
restricts the meaning of Aperson@ (the Awho@ who may appeal) based on terms that
modify Aorder@ (the Awhat@ that may be appealed). And without expressly saying so,
the subsection-(8) reasoning, by focusing on the phrase Agrants or denies,@ also blends
together the distinct concepts of who has a justiciable interest in appealing the
referenced ruling and whom the statute authorizes to appeal. Accordingly, this
reasoning falls in line with the Second Dictum in Koseoglu concerning section
51.014(a)(5). For this reason, I view the Second Dictum as judicial dictum, not mere
obiter dictum. I thus further agree that we must follow it. 7 See Edwards, 9 S.W.3d at
7
I recognize that we need not follow judicial dictum if it is erroneous. See
Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.CHouston [14th Dist.] 1999,
pet. denied) (quoting Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764,
773 (Tex. 1964)). Respectfully, for the reasons set out above, I believe that the
Second Dictum incorrectly interprets section 51.014(a)(5). I nonetheless
believe that we must follow the Second Dictum because (1) the Koseoglu court
used similar reasoning to support its actual holding, indicating that it would
interpret all subsections of section 51.014(a) likewise, and (2) the issue is not so
clear-cut as to justify doing otherwise (witness that we, too, incorrectly
employed reasoning like that of the Second Dictum to hold on original
15
314.
For the reasons set out above, however, I respectfully request that the Texas
Supreme Court revisit its dicta concerning section 51.014(a)(5), and the equivalent
reasoning supporting its holding under section 51.014(a)(8), from Koseoglu.
Dr. Klein=s Appeal
I also respectfully concur in that portion of the judgment that dismisses Dr.
Klein=s appeal. I do so because I do not read Texas Health and Safety Code section
312.007(a) or Texas Civil Practice and Remedies Code section 51.014(a)(5) as
narrowly as the majority does.
See TEX. CIV. PRAC. & REM. CODE ANN.
' 51.014(a)(5); TEX. HEALTH & SAFETY CODE ANN. ' 312.007(a) (Vernon 2001).
A.
What Section 51.014(a)(5)=s Requirements Are
Texas Civil Practice and Remedies Code section 51.014(a)(5) has two
requirements for appellate jurisdiction to attach: (1) that the denied summary-
submission that we lacked jurisdiction under section 51.014(a)(8) over Dr.
Klein=s appeal, see Klein v. Hernandez, No. 01-06-00569-CV, 2007 WL
2264539, at *11 (Tex. App.CHouston [1st Dist.] Aug. 3, 2007),
withdrawn, No. 01-06-00569-CV (Tex. App.CHouston [1st Dist.] Apr. 17,
2008, no pet. h.)).
16
judgment motion be Abased on an assertion of immunity@ by an individual and (2) that
that individual be Aan officer or employee of the state or a political subdivision of the
state.@ See TEX. CIV. PRAC. & REM. CODE ANN. ' 51.014(a)(5). If either of these
requirements is missing, we lack jurisdiction over the interlocutory appeal.
B.
In What Circumstances a Private-Supported-Medical-School Employee
Can Meet Section 51.014(a)(5)=s Requirements for Interlocutory Appeal
A private-supported-medical school is obviously not the Astate or a political
subdivision of the state.@ Accordingly, the employee of such a private school cannot
actually be an employee of the state or its political subdivision. Normally, one who is
not actually a state employee cannot assert an immunity defense to his personal
liability. See, e.g., Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000)
(AOfficial immunity is an affirmative defense that protects government employees
from personal liability.@) (emphasis added). But to my mind, if a separate statutory
provision requires that a private-supported-medical-school employee be treated as if
he were a governmental employee in certain circumstances, and if those circumstances
exist in a given case, then the employee may be treated as if he were a governmental
employee in that case. I view Texas Health and Safety Code section 312.007(a) as a
statute falling into this category. Specifically, I read section 312.007(a) to allow such
a private employee to invoke legal principles or defenses that are available only to
governmental employees (such as the affirmative defense of official immunity from
17
liability) for the purpose of determining his liability in a given case. It flows naturally
from this reading that if the Agovernmental@ legal principle or affirmative defense that
the private employee invokes is based on immunity from individual liability (such as
the affirmative defense of official immunity from liability), he should be able to
appeal the denial of a summary-judgment motion based on that legal principle or
affirmative defense under section 51.014(a)(5). See, e.g., Koseoglu, 233 S.W.3d at
841 (AHad [the governmental official] filed a motion for summary judgment based on
an assertion of official immunity, he clearly would be permitted under Section
51.014(a)(5) to appeal an interlocutory denial of his motion for summary judgment.@);
see also Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 10 (Tex. App.CHouston
[14th Dist.] 2006, pet. denied).
Section 312.007(a) is part of Texas Health and Safety Code chapter 312, which
expressly requires that private-supported-medical schools be considered governmental
units for limited purposes. One of those limited purposes, found in section 312.007,
involves claims against the employees (or directors, trustees, officers, interns,
residents, fellows, faculty members, or other associated health care professionals) of
supported-medical schools in their individual capacity:
' 312.007. Individual Liability
(a) A . . . supported medical . . . school . . . is a state agency,
and [an] . . . employee of a . . . supported medical . . . school . . . is an
18
employee of a state agency for purposes of Chapter 104, Civil Practice
and Remedies Code, and for purposes of determining the liability, if any,
of the person for the person=s acts or omissions while engaged in the
coordinated or cooperative activities of the . . . school . . . .
(b)
A judgment in an action or settlement of a claim against a
. . . supported medical . . . school . . . under Chapter 101, Civil Practice
and Remedies Code, bars any action involving the same subject matter
by the claimant against [an] . . . employee of the . . . school . . . whose act
or omission gave rise to the claim as if the person were an employee of a
governmental unit against which the claim was asserted as provided
under Section 101.106, Civil Practice and Remedies Code.
TEX. HEALTH & SAFETY CODE ANN. ' 312.007 (Vernon 2001) (emphasis added).
There are thus three situations in which section 312.007 treats a privatesupported-medical school=s employee (or its director, trustee, officer, intern, resident,
fellow, faculty member, or other associated health care professional) as if he were an
employee of a governmental unit:
1.
8
when certain situations that could allow for indemnification of the
employee exist; 8
See TEX. HEALTH & SAFETY CODE ANN. ' 312.007(a) (AA . . . supported
medical . . . school . . . is a state agency, and [an] . . . employee of a . . .
19
2.
when determining whether the employee could be individually
liable for his acts or omissions occurring during certain types of
supported medical . . . school . . . is an employee of a state agency for purposes
of Chapter 104, Civil Practice and Remedies Code . . . .@) (emphasis added).
Texas Civil Practice and Remedies Code chapter 104Centitled, AState Liability
for Conduct of Public Servants@Cprovides the circumstances under which the
State must indemnify its employees, former employees, and certain individuals
under contract with or in the service of particular state entities for damages,
court costs, and attorney=s fees. See TEX. CIV. PRAC. & REM. CODE ANN.
'' 104.001B.009.
20
the school=s activities; 9 and
3.
when a judgment is rendered or a settlement is made against the
employer-school, in which case any action against the employee
involving the same subject matter is barred. 10
9
See TEX. HEALTH & SAFETY CODE ANN. ' 312.007(a) (A . . . supported medical
. . . school . . . is a state agency, and [an] . . . employee of a . . . supported
medical . . . school . . . is an employee of a state agency . . . for purposes of
determining the liability, if any, of the person for the person=s acts or omissions
while engaged in the coordinated or cooperative activities of the . . . school
. . . .@).
10
See id. ' 312.007(b) (Vernon 2001) (AA judgment in an action or settlement of
a claim against a . . . supported medical . . . school . . . under Chapter 101, Civil
Practice and Remedies Code, bars any action involving the same subject matter
by the claimant against [an] . . . employee of the . . . school . . . whose act or
omission gave rise to the claim as if the person were an employee of a
governmental unit against which the claim was asserted as provided under
Section 101.106, Civil Practice and Remedies Code.@). The version of section
101.106 that applies to this case reads likewise. See Act of May 17, 1985, 69th
Leg., R.S., ch. 959, ' 1, 1985 Tex. Gen. Laws 3242, 3305, amended by Act of
21
June 2, 2003, 78th Leg., R.S., ch. 204, ' 11.05, 2003 Tex. Gen. Laws 847, 886.
22
The second benefit of section 312.007Ccreated by the phrase A[an] . . .
employee of a . . . supported medical . . . school . . . is an employee of a state agency
. . . for purposes of determining the liability, if any, of the person for the person=s acts
or omissions@ in section 312.007(a)Cis the relevant one for purposes of this appeal.
The majority reads this second benefit of section 312.007(a) as a Agrant of limited
liability,@ 11 without further explanation. That is, the majority reads this provision of
section 312.007(a) to treat private-supported-medical-school employees as if they
were governmental employees solely for the purpose of granting them a damages cap
that might be available to governmental employees. For this reason, the majority
concludes that whatever section 312.007(a)=s second benefit confers, that benefit
cannot be Abased on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state,@ as required for us to have
jurisdiction under section 51.014(a)(5).
11
The majority does not state exactly what is meant by Alimited liability,@ but I
am assuming that at least a damages cap is meant. Cf. TEX. HEALTH & SAFETY
CODE ANN. ' 312.006(a) (Vernon 2001) (entitled ALimitation on Liability@ and
importing Texas Tort Claims Act=s damages cap for supported medical
schools).
23
I do not disagree that the second benefit of section 312.007(a) could
theoretically encompass a limitation on liability (such as a damages cap), if it applies
in a given case and if that benefit would be available to a governmental employee in
the particular circumstances. What I disagree with is the majority=s position that
section 312.007(a)=s second benefit is restricted solely to a damages cap. It is for this
reason that I cannot join the majority=s reasoning.
In contrast to the majority, I read the second benefit of section 312.007(a) more
broadly, to extend to certain employees and personnel of private-supported-medical
schools the potential ability to invoke legal principles (e.g., rules of law, affirmative
defenses) that a governmental employee could invoke to preclude or to limit
individual liability that he might otherwise incur for carrying out certain types of his
employer=s activities. The language of section 312.007(a)=s second benefit supports
this broader interpretation.
Specifically, this provision speaks in terms of
Adetermining the liability, if any, of the person for the person=s acts or omissions . . . .@
Id. (emphasis added). ADetermining@ an individual=s liability for his acts or omissions
is a process, an adjudication. See RANDOM HOUSE WEBSTER=S UNABRIDGED DICT. at
542 (2d ed. 2001) (defining Adetermine@ as Ato settle or decide . . . by an authoritative
or conclusive decision@ and Ato conclude or ascertain, as after reasoning, observation,
24
etc.@); id. at 541 (defining Adetermination@ as Athe act of coming to a decision or of
affixing or settling a purpose@ and Aascertainment, as after observation or
investigation@). That process is broad enough to encompass the adjudication of, for
example, an affirmative defense to the individual=s liability. ADetermining the
liability@ of the individual must thus be more than merely placing a cap on damages
that can be awarded against that individual, as the majority reads the phrase.
The narrowness and specificity of other provisions of chapter 312 also
demonstrate that the phrase A[an] . . . employee of a . . . supported medical . . . school
. . . is an employee of a state agency . . . for purposes of determining the liability, if
any, of the person for the person=s acts or omissions@ was intended to be more than
simply a damages cap.
For example, section 312.006(a), in which the Legislature
grants the private-supported-medical school the damages cap available to a
governmental unit, employs words far more specific than those used to describe the
second benefit of section 312.007(a).12 And when the Legislature intended to provide
12
' 312.006. Limitation on Liability
(a) A . . . supported medical . . . school . . . engaged in
coordinated or cooperative medical . . . clinical education under
Section 312.004, including patient care and the provision or
performance of health or dental services or research at a public
hospital, is not liable for its acts and omissions in connection with
25
employees of private-supported-medical schools with the indemnity 13 or with the bar
to suit 14 available to governmental employees, it did so with specific language and
with references to specific provisions of other statutes. In contrast, the phrase A[an]
. . . employee of a . . . supported medical . . . school . . . is an employee of a state
agency . . . for purposes of determining the liability, if any, of the person for the
person=s acts or omissions@ is worded generally, not with the kind of specificity found
those activities except to the extent and up to the maximum
amount of liability of state government under Section 101.023(a),
Civil Practice and Remedies Code, for the acts and omissions of a
governmental unit of state government under Chapter 101, Civil
Practice and Remedies Code. . . .
TEX. HEALTH & SAFETY CODE ANN. ' 312.006(a) (emphasis added); see TEX.
CIV. PRAC. & REM. CODE ANN. ' 101.023(a) (Vernon 2005) (ALiability of the
state government under this chapter is limited to money damages [in certain
amounts].@); Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 11 (Tex.
App.CHouston [14th Dist.] 2006, pet. denied) (interpreting section 312.006(a)
as importing damages cap).
13
See TEX. HEALTH & SAFETY CODE ANN. ' 312.007(a) (AA . . . supported
medical . . . school . . . is a state agency, and [an] . . . employee of a . . .
supported medical . . . school . . . is an employee of a state agency for purposes
of Chapter 104, Civil Practice and Remedies Code . . . .@).
14
See TEX. HEALTH & SAFETY CODE ANN. ' 312.007(b) (AA judgment in an action
or settlement of a claim against a . . . supported medical . . . school . . . under
Chapter 101, Civil Practice and Remedies Code, bars any action involving the
same subject matter by the claimant against [an] . . . employee of the . . . school
. . . whose act or omission gave rise to the claim as if the person were an
employee of a governmental unit against which the claim was asserted as
provided under Section 101.106, Civil Practice and Remedies Code.@).
26
in the other provisions of chapter 312 cited above. In sum, the Legislature knew how
to limit the Agovernmental@ benefits that it was granting private-supported-medical
schools and their employees, but chose not to use such limiting language when it
provided that private-supported-medical-school employees were to be treated as
governmental employees A[f]or purposes of determining the liability, if any, of the
person for the person=s acts or omissions@ under specified circumstances.
For all of these reasons, I conclude that when a private-supported-medicalschool employee is sued in his individual capacity for his acts or omissions while
engaged in certain of the school=s activities, he may invoke the affirmative defense of
official immunity from liability, if the facts of the case allow it. See TEX. HEALTH &
SAFETY CODE ANN. ' 312.007(a). If the private-supported-medical-school employee
wishes to invoke this affirmative defense, he may use a summary-judgment motion to
do so. See Koseoglu, 233 S.W.3d at 843 (A[A]n official sued in his individual capacity
would assert official immunity as a defense to personal monetary liability, which is
well suited for resolution in a motion for summary judgment.@). If that summaryjudgment motion is denied, he may appeal the ruling under section 51.014(a)(5). See
id. at 841; Hernandez, 208 S.W.3d at 10. The reason that he may appeal that ruling
under section 51.014(a)(5) is one of simple logic: if he is to be treated as if he were a
governmental employee for purposes of a summary-judgment ground based on official
27
immunity from individual liability, he should also be treated as if he were a
governmental employee for the purpose of appealing that very ruling. That is, it
would be incongruous not to allow him to appeal, on the basis that he was not actually
a governmental employee, the very summary-judgment ruling for which the law
required that he be treated below as if he were one.
The majority implies that, had the Legislature intended for section 312.007(a) to
allow a private-supported-medical-school employee to invoke the affirmative defense
of official immunity from liability, it could have used the words Aimmunity from
liability@ in that section. Yes, the Legislature could have used the words Aimmunity
from liability,@ rather than implicitly having included, by logical necessity, the
potential to invoke an affirmative defense based on that immunity. But the absence of
the word Aimmunity@ does not render the Legislature=s intent unclear. Indeed, the
supreme court itself has interpreted a statute not expressly containing the term
Aimmunity from liability@ to grant such immunity, so that a summary-judgment ruling
issued pursuant to it is subject to appeal under section 51.014(a)(5). See Newman v.
Obersteller, 960 S.W.2d 621, 622B23 (Tex. 1997).
Of course, Newman also
demonstrates that section 51.014(a)(5)=s failure to reference section 312.007,
and section 312.007=s failure to state that orders based on it are appealable,
are not necessarily dispositive matters. See id. at 622 (holding that denial of
28
summary-judgment motion invoking statutory bar of former Texas Civil Practice and
Remedies Code section 101.106 was appealable under section 51.014(a)(5), despite
fact that section 51.014(a) did not list rulings based on former section 101.106 as
appealable and fact that former section 101.106 did not state that orders based on it
were appealable).
C.
Why I Concur, Rather Than Dissent
I concur in, rather than dissent from, the judgment dismissing Dr. Klein=s appeal
because I do not interpret Dr. Klein=s summary-judgment motions as having asserted
any legal principle or affirmative defense that might have been available to a
governmental employee under the facts of this case.
Baylor=s and Dr. Klein=s summary-judgment motions asserted summarily that
Dr. Klein had Aofficial immunity in this case,@ which Hernandez apparently
understood as an assertion of official immunity from liability because she responded
to that affirmative defense on the merits. However, Baylor and Dr. Klein=s later
summary-judgment reply clarified that they were not asserting common-law official
immunity from liability. Their summary-judgment reply was consistent with the
overall gist of their summary-judgment motions, which was to argue that Texas
Health and Safety Code sections 312.006 and 312.007 cloaked them both with the
29
immunity from suit and liability allegedly granted by the Texas Tort Claims Act. 15
Moreover, Baylor and Dr. Klein never in any way attempted to prove the elements of
common-law official immunity from liability.
15
See TEX. CIV. PRAC. & REM. CODE ANN. '' 101.001B.029 (Vernon 2005 &
Supp. 2007).
30
Summary-judgment motions are to be strictly construed in substantive matters
against the movant. See Nexen, Inc. v. Gulf Interstate Eng=g Co., 224 S.W.3d 412,
423 n.14 (Tex. App.CHouston [1st Dist.] 2006, no pet.). Under this standard, I do not
interpret Baylor=s and Dr. Klein=s summary-judgment motions to have asserted Dr.
Klein=s official immunity from liability, although I believe that section 312.007(a)
gave him the ability to invoke that affirmative defense. See Hernandez, 208 S.W.3d at
11 (interpreting Baylor=s and its physicians= summary-judgment motion not to raise
ground of official immunity from liability, so that the order denying the motion was
not appealable under Texas Civil Practice and Remedies Code section 51.014(a)(5),
when movants (1) Ad[id] not claim official immunity@ in their motion; (2) did not
allege or offer evidence on elements of official immunity; and (3) cited only section
312.006(a), which by its terms could not apply to individuals). Because Dr. Klein=s
summary-judgment motions did not assert official immunity from liability,16 the trial
court=s order was not one denying Aa motion for summary judgment that is based on an
assertion of immunity by an individual@ who could be treated, under section
312.007(a), as Aan officer or employee of the state or a political subdivision of the
16
Baylor=s and Dr. Klein=s summary-judgment motions relied on Texas Civil
Practice and Remedies Code sections 101.021 and 101.101 of the Texas Tort
Claims Act, which apply only to a governmental unit, not to an individual sued
in his individual capacity, as was Dr. Klein. See TEX. CIV. PRAC. & REM. CODE
ANN. '' 101.021, 101.101 (Vernon 2005).
31
state.@ Accordingly, I concur in the conclusion that we lack subject-matter jurisdiction
over Dr. Klein=s appeal.
Conclusion
With these comments, I concur in the judgment.
Tim Taft
Justice
Panel consists of Justices Taft, Jennings, and Alcala.
Justice Taft, concurring in the judgment.
32
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