Klein v. Hernandez

260 S.W.3d 1, 2008 WL 1747479

Opinions

OPINION ON REHEARING

TERRY JENNINGS, Justice.

We issued an opinion and judgment in this appeal on August 3, 2007. Appellants, Baylor College of Medicine (“Baylor”) and Dr. Geoffrey Klein, filed motions for rehearing and en banc reconsideration. We grant appellants’ motion for rehearing, withdraw our August 3, 2007 opinion, substitute this opinion in its place, and vacate our August 3, 2007 judgment.¹

In this interlocutory appeal,² Baylor and Dr. Klein challenge the trial court’s order denying their joint motion to dismiss, for lack of jurisdiction, the claims of appellee, Cynthia Hernandez,³ as next friend of Na-homy Hernandez, a minor, against Baylor and Klein for their negligence and the trial court’s order denying their joint motion for summary judgment. In two points of error, Baylor and Klein contend that the trial court erred in denying them joint motion to dismiss, in which they asserted that they are “immune from suit as a unit of government and its employee” under chapter 312 of Texas Health and Safety Code (“chapter 312”),⁴ and in denying their joint summary judgment motion, in which they asserted that they are “immun[e] from liability” under chapter 312 to the extent liability is allowed by section 101.021 of the Texas Civil Practice and Remedies Code.⁵

We dismiss the interlocutory appeals of both Baylor and Dr. Klein.

Background

Hernandez has sued Baylor and Dr. Klein, alleging a health-care-liability claim against Klein, individually, and against Baylor, under respondeat superior, for the negligent acts of Klein and other unnamed Baylor employees in the delivery of her daughter, Nahomy. In June 1994, Hernandez was admitted to Ben Taub General Hospital (“Ben Taub”), and, during the delivery, Nahomy suffered from a brachial plexus⁶ injury to her right arm. Hernandez alleged that Klein’s methods of releasing Nahomy’s shoulder during the delivery caused the injury.

Baylor, a non-profit medical school, was under contract with the Texas Higher Education Coordinating Board to provide medical training to physicians who provided medical care and services at public-health-care facilities. Dr. Klein was a resident physician in Baylor’s obstetrics and gynecology residency program and was assigned to provide medical services to patients at Ben Taub, which is owned and operated by the Harris County Hospital District.

Baylor and Dr. Klein jointly filed a motion to dismiss for lack of jurisdiction and a summary judgment motion, asserting that Baylor and Klein are immune from suit and liability under chapter 312. Before the trial court ruled on the motions, Hernandez non-suited Baylor.⁷ At the hearing on the motions, the trial court stated that it would not rule on Baylor’s motions because Baylor had been non-suited. Nevertheless, the trial court entered orders denying both Baylor’s and Klein’s motions.

Baylor’s and Dr. Klein’s Joint Issue

In their joint brief, Baylor and Dr. Klein characterize their interlocutory appeals as presenting “an important sovereign immunity [8] question involving the trial court’s denial of a plea to the jurisdiction and motion for summary judgment in a medical malpractice suit against an entity and its employee who are immune from suit.” They contend that the Legislature intended to confer upon them “the status of a governmental/state entity and its employee, including the immunity from suit and liability and right to an interlocutory appeal in these limited circumstances.”

Specifically, Baylor and Dr. Klein, in their two points of error, jointly argue that the trial court erred in denying their joint motion to dismiss this case and joint motion for summary judgment because chapter 312 of the Health and Safety Code, specifically sections 312.006 and 312.007, “limits not only the scope of [ajppellants’ liability, but also the extent of the Tort Claims Act’s[9] waiver of sovereign immunity from suits alleging injuries involving the ‘use of tangible personal or real property.’ ” They assert, “[w]here, as here, sovereign immunity exists, it deprives a district court of subject matter jurisdiction.” Baylor and Klein further assert that the trial court failed “to evaluate the jurisdictional implication of [Hernandez’s] failure to plead specific facts or introduce evidence to support [her] negligence claims, specifically regarding the ... ‘use of tangible personal or real property....’” They conclude that the trial court “erroneously based jurisdiction on [Hernandez’s] nonspecific, conclusory allegations and no extrinsic evidence, which is insufficient to waive immunity.”

Jurisdiction Over Baylor’s Appeal

Hernandez argues that we lack jurisdiction over Baylor’s interlocutory appeal because she non-suited Baylor before the complained-of rulings and because “neither Baylor nor Dr. Klein is a government unit, a political subdivision, or an employee of the state.” See Tex. Civ. Pkao. & Rem.Code ANN. § 51.014(a)(5), (8) (Vernon Supp. 2007). Baylor responds that it should be treated as a governmental unit under section 51.014(a)(8). It also asserts that section 51.014(a)(5) allows it to appeal the denial of its summary judgment motion to the extent that it asserted Klein’s immunity from liability. See id. § 51.0014(a)(5). Finally, Baylor asserts that the trial court lacked the power to order that Baylor be non-suited. In their joint motion for rehearing, Baylor and Klein assert, in very general terms, that the Legislature has “conferred] upon [a]ppellants the equivalent status and immunities of a state agency and the employee of a state agency within the meaning of Chapter 312, the [Tort Claims Act]¹⁰ and section 51.014 of the Texas Civil Practice and Remedies Code, and this Court has jurisdiction to hear this appeal.”

A party may not appeal an interlocutory order unless authorized by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001). We must strictly construe statutes authorizing interlocutory appeals. Id. at 355.

Plea to the Jurisdiction by a Governmental Unit

Section 51.014(a)(8) of the Civil Practice and Remedies Code provides that a person may appeal from an interlocutory order that “grants or denies a plea to the jurisdiction by a governmental unit[11] as that term is defined in Section 101.001.” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8). Immunity from suit prohibits suits against the state and governmental units, unless consent to suit has been expressly provided, defeats a trial court’s subject matter jurisdiction, and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999).

Baylor does not argue that it is actually a governmental unit. Rather, it contends that sections 312.006(a) and 312.007 of the Health and Safety Code “confer upon [a]p-pellants the equivalent status and immunities of a state agency and the employee of a state agency.”

Section 312.006, entitled “Limitation on Liability,” provides,

(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 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.

(b) The limitation on liability provided by this section applies regardless of whether the ... supported medical ... school ... is a “governmental unit ” as defined by Section 101.001, Civil Practice and Remedies Code.

Tex. Health & Safety Code Ann. § 312.006 (Vernon 2001) (emphasis added).

Section 101.023(a) of the Tort Claims Act, entitled “Limitation on Amount of Liability,” provides,

Liability of the state government under this chapter is limited to money dam ages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.

Tex. Civ. Prac. & Rem.Code Ann. § 101.023(a) (Vernon 2005).

Baylor did present summary judgment evidence that it is a supported medical school engaged in the type of medical clinical education¹² required for Baylor to invoke section 312.006. See Tex. Health & Safety Code Ann. § 312.002(6) (Vernon Supp.2007). However, section 312.006, with its references to the Tort Claims Act, does not make Baylor the equivalent of a governmental unit that enjoys immunity from suit. Nor does it convert Baylor into a governmental unit authorized to pursue an appeal under section 51.014(a)(8) of the interlocutory appeal statute.

The Legislature, in section 312.006, made no reference to sovereign or governmental immunity from suit. See id. § 312.006; see also Baylor Coll. of Med. v. Hernandez, 208 S.W.3d 4, 10 (Tex. App.Houston [14th Dist.] 2006, pet. denied) (holding that section 312.006(a) does not purport to grant immunity from suit to a supported medical school or to its residents, faculty, or employees).¹³ Moreover, the Texas Supreme Court has characterized section 101.023 of the Tort Claims Act as providing “damage caps.” See Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 10 (Tex.2000). Section 101.023 simply places “caps on actual damages” and prohibits “punitive damages.” Id. at 9. Thus, it does not confer sovereign or governmental immunity, but, rather, it waives such immunity to the extent of the caps. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 698 (Tex.2003).

In Hernandez, the Fourteenth Court of Appeals has already considered, and rejected, Baylor’s argument that section 312.006(a) grants it immunity from suit. 208 S.W.3d at 9-10. As explained by the Fourteenth Court of Appeals,

By importing the damage caps of section 101.023(a), the Health and Safety Code limits the damages for which a supported medical school is liable. The plain language of neither statute purports to grant immunity from suit to a supported medical school or to its residents, faculty, or employees. Nevertheless, this is the interpretation appellants urge us to adopt. We are unable to do so.... A damages cap limits damages but does not imply immunity from suit. To the contrary, damages caps such as section 101.023 that “insulate public resources from the reach of judgment creditors” indicate immunity from suit has been waived.

Id. at 9-10 (citation omitted) (quoting Taylor, 106 S.W.3d at 698) (citations omitted).

As did the Fourteenth Court of Appeals in Hernandez, we hold that section 312.006(a) does not make Baylor a governmental unit, immune from suit, nor did it deprive the trial court of subject matter jurisdiction. See id. at 10.

Section 312.007 of the Health and Safety Code, entitled “Individual Liability,” provides,

(a) A ... supported medical ... school ... is a state agency, and a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of a ... supported medical ... school ... is an employee of a state agency for purposes of Chapter 10h, Civil Practice and Remedies Code,[14] 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,[15] bars any action involving the same subject matter by the claimant against a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or 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).

The Legislature, in section 312.007(a), expressly provided that a supported medical school is a “state agency” only “for purposes of Chapter 10k, 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....” See id. § 312.007(a) (emphasis added). Chapter 104 concerns “State Liability for Conduct of Public Servants.” See Tex. Civ. Prac. & Rem.Code AnN. §§ 104.001-.009 (Vernon 2005 & Supp.2007). Subsection (a) of section 312.007 limits the situations in which Baylor may be treated as if it were a state agency to those involving indemnity of its employees and contractors (chapter 104) and determinations of its employees’ (or directors’, trustees’, officers’, interns’, residents’, fellows’, faculty members’, or other associated health care professionals’) liability, if any. See Tex. Health & Safety Code Ann. § 312.007(a).

Accordingly, we hold that section 312.007 of the Health and Safety Code does not make Baylor the equivalent of a governmental unit, immune from suit, and, thus, it did not deprive the trial court of subject matter jurisdiction.

Having held that neither section 312.006(a) nor section 312.007 of the Health and Safety Code makes Baylor the equivalent of a governmental unit, immune from suit, we further hold that the trial court’s denial of Baylor’s plea to the jurisdiction is not subject to an interlocutory appeal under section 51.014(a)(8) of the Civil Practice and Remedies Code.

Immunity of an Officer or Employee of the State

Section 51.014(a)(5) of the Civil Practice and Remedies Code provides that a person may appeal from an interlocutory order 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.” See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5).

Baylor argues that it is a “person” under section 51.014(a) because it is appealing from an order denying its summary judgment motion, which was based on the assertion of immunity from individual liability by Dr. Klein, and he is treated as a state employee for purposes of ascertaining whether he is individually liable for his allegedly negligent acts.

However, the Texas Supreme Court has expressly stated that only a state official or employee can pursue an interlocutory appeal under section 51.014(a)(5). See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex.2007). The court explained,

.... [Tjhere is no other way to read Section 51.014(a)(5) than to conclude that only an “individual 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. (quoting Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5)); see also Young v. Villegas, 231 S.W.3d 1, 3 (Tex.App.-Houston [14th Dist.] 2007, pet. denied).

Accordingly, we hold that section 51.014(a)(5) does not authorize Baylor’s interlocutory appeal of the trial court’s denial of Baylor’s summary judgment motion.

Having held that the trial court’s denials of Baylor’s plea to the jurisdiction and summary judgment motion are not subject to an interlocutory appeal under either section 51.014(a)(5) or section 51.014(a)(8) of the Civil Practice and Remedies Code, we dismiss Baylor’s appeal.¹⁶ Because we dismiss Baylor’s interlocutory appeal for lack of jurisdiction, we do not reach Baylor’s two points of error.

Jurisdiction over Dr. Klein’s Appeal

Hernandez argues that we lack jurisdiction over Dr. Klein’s appeal because “neither Baylor nor Dr. Klein is a government unit, a political subdivision, or an employee of the state.” See Tex. Civ. Prac. & ReM. Code ANN. § 51.014(a)(5), (8). As noted above, in their joint motion for rehearing, Klein and Baylor assert, in very general terms, that the Legislature has “confer[red] upon [ajppellants the equivalent status and immunities of a state agency and the employee of a state agency within the meaning of Chapter 312, the [Tort Claims Act]¹⁷ and section 51.014 of the Texas Civil Practice and Remedies Code, and this Court has jurisdiction to hear this appeal.”

We again note that a party may not appeal an interlocutory order unless authorized by statute and that we must strictly construe statutes authorizing interlocutory appeals. Bally Total Fitness Corp., 53 S.W.3d at 355.

Plea to the Jurisdiction by a Governmental Unit

In Koseoglu, the Texas Supreme Court held that section 51.014(a)(8) allows an employee of a governmental unit whom the plaintiff sues in his official capacity to appeal the denial of the governmental unit’s jurisdictional plea. 233 S.W.3d at 844-45. Having held that Baylor is not a governmental unit for purposes of section 51.014(a)(8), we further hold that section 51.014(a)(8) does not authorize Dr. Klein’s interlocutory appeal of the trial court’s denial of his plea to the jurisdiction based on governmental immunity from suit.

Immunity of an Officer or Employee of the State

Again, section 51.014(a)(5) expressly provides that only an individual who is “an officer or employee of the state or a political subdivision of the state” may appeal from an interlocutory order that “denies a motion for summary judgment that is based on an assertion of immunity” by the individual. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5). Summary judgment is the appropriate procedural mechanism to assert immunity from liability. Baylor Coll. of Med. v. Tate, 77 S.W.3d 467, 472 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

In Young, the Fourteenth Court of Appeals held that section 51.014(a)(5) authorized a Baylor doctor, who was similarly situated to Dr. Klein in the instant case, to appeal the denial of his summary judgment motion, in which he asserted immunity from individual liability. 231 S.W.3d at 7-8. The doctor in Young asserted that, although she was not actually an officer or an employee of the state or a political subdivision of the state, she “should be treated as if she were one under section 312.007(a).” Id. at 7. After quoting section 312.007(a), the Young court, in circular fashion, reasoned,

In determining the liability, if any, of an employee of a state agency for her acts or omissions, trial courts may rule on motions for summary judgment asserting immunity, and if trial courts deny such motions, then courts of appeals may entertain interlocutory appeals from the order denying these motions. See Tex. Civ. PRao. & Rem.Code ANN. § 51.014(a)(5). Therefore, we conclude that this court has appellate jurisdiction over Dr. Young’s appeal from the trial court’s interlocutory order denying the Summary Judgment Motions as to her.

Id. at 8.

However, the plain language of section 812.007(a), as quoted above, does not confer upon Dr. Klein the immunity from liability enjoyed by an employee of a state agency.¹⁸ Moreover, neither section 312.006, entitled “Limitation on Liability,” nor 312.007, entitled “Individual Liability,” in any way confers upon Klein or Baylor, as they jointly argue, “sovereign immunity,” which must be waived under the Texas Tort Claims Act. Rather, section 312.007(a) expressly provides that a person in Klein’s position is to be treated as if he were “an employee of a state agency” only “for purposes of Chapter 10k, 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.... ” Tex. Health & Safety Code AnN. § 312.007(a) (emphasis added). Accordingly, we hold that the Legislature’s grant of limited liability to Dr. Klein and Baylor and provision of indemnity for Klein in chapter 312 does not amount to a conferral of “sovereign immunity,” which deprived the trial court of subject matter jurisdiction, as expressly argued to this Court by Klein and Baylor.

Had the Legislature intended for those similarly situated to Dr. Klein to enjoy the right to an interlocutory appeal in circumstances such as those presented here, it could have expressly provided that right in either section 312.007 of the Health and Safety Code or, more appropriately, in section 51.014(a)(5) of the Civil Practice and Remedies Code. It simply did not.

In regard to the Fourteenth Court of Appeals’s holding to the contrary in Young, we note that, given that the Legislature has not provided Baylor with the right to appeal the trial court’s denial of its jurisdictional plea, it would be oddly inconsistent for the Legislature to provide such a right to Dr. Klein. Why would the Legislature grant doctors, like Klein and Young, the right to appeal their summary judgment motions, but deny their employer, like Baylor, the right to appeal the denial of its jurisdictional plea? There is no logical reason for doing so. As an appellate court, we must construe the pertinent statutes and, in construing them, avoid an absurd or unreasonable result. See Tex. Gov’t Code Ann. § 311.021 (Vernon 2005) (“In enacting a statute, it is presumed that ... a just and reasonable result is intended.”); Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 356 & n. 20 (Tex.2004) (court should not construe statutes to lead to absurd results); Watts v. City of Houston, 126 S.W.3d 97, 100 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (“We should not adopt a construction that would render a law or provision absurd or meaningless The bottom line is that the Legislature has not authorized any such interlocutory appeals.

Strictly construed, section 51.014(a)(5) of the Civil Practice and Remedies Code authorizes a person to appeal from an order that “denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an [actual] officer or employee of the state or a political subdivision of the state.” See Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(5) (emphasis added). Because section 51.014(a)(5) authorizes a person to appeal from an order 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,” we must respectfully disagree with the Fourteenth Court of Appeals’s holding in Young. See id. (emphasis added). Accordingly, we hold that section 51.014(a)(5) does not authorize Dr. Klein’s interlocutory appeal of the trial court’s denial of his summary judgment motion.

Having held that the trial court’s denials of Dr. Klein’s plea to the jurisdiction and summary judgment motion are not subject to an interlocutory appeal under either sections 51.014(a)(5) or section 51.014(a)(8), we dismiss his appeal.

Because we dismiss Dr. Klein’s interlocutory appeal for lack of jurisdiction, we do not reach his two points of error.

Conclusion

We dismiss Baylor’s and Dr. Klein’s interlocutory appeals for lack of jurisdiction.

Justice TAFT, concurring in the judgment.

Footnotes

1

. Appellants' motion for en banc reconsideration is moot. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n. 4 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).

2

. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a) (Vernon Supp.2007).

3

. Before the trial court rendered the complained-of orders, Cynthia Hernandez died. Although Hernandez’s counsel filed a suggestion of death and moved to appoint Nahomy's aunt as her next friend, Hernandez’s name appears on the complained-of orders, and so we refer to Hernandez as the appellee for purposes of this opinion.

4

. See Tex. Health & Safety Code Ann. §§ 312.001-.007 (Vernon 2001 & Supp.2007).

5

. Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005).

6

. “Brachial plexus” is defined as a "network of nerves in the neck and axilla, composed of the anterior branches of the lower four cervical and first two thoracic spinal nerves and supplying the chest, shoulder, and arm.” The American Heritage Stedman’s Medical Dictionary 110 (2002).

7

. All parties agree that the trial court entered an order of non-suit as to Baylor.

[8]

8. We note that “[ujnder [the] centuries-old common-law doctrine” of sovereign immunity, the sovereign is immune from suit and liability. Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdiv. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324 (Tex.2006). "The State’s sovereign immunity extends to various divisions of state government, including agencies, boards, hospitals, and universities.” Id. "[G]overn-mental immunity similarly protects political subdivisions of the State, including counties, cities, and school districts.” Id. "Official immunity is an affirmative defense that shields governmental employees from personal liability so that they are encouraged to vigorously perform their official duties,” and "[a] governmental employee is entitled to official immunity for (1) the performance of discretionary duties (2) that are within the scope of the employee's authority, (3) provided that the employee acts in good faith.” Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex.2002).

[9]

9. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 2005 & Supp.2007).

10

. See Tex Health & Safety Code Ann. §§ 312.001-.007.

[11]

11. A "governmental unit” is defined as,

(A) this state and all the several agencies of government that collectively constitute the government of this state, including other agencies bearing different designations, and all departments, bureaus, boards, commissions, offices, agencies, councils, and courts;

(B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority;

(C) an emergency service organization; and

(D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.

Tex Crv. Prac. & Rem.Code Ann. § 101.001(3) (Vernon 2005) (emphasis added).

12

. The purpose of chapter 312 is,

[t]o authorize coordination and cooperation between medical and dental units, supported medical or dental schools, and public hospitals and to remove impediments to that coordination and cooperation in order to: (1) enhance the education of students, interns, residents, and fellows attending a medical and dental unit or a supported medical or dental school; (2) enhance patient care; and (3) avoid any waste of public money.

Tex. Health & Safety Code Ann. §§ 312.001.

13

. Baylor argues that section 312.006(a)’s mere reference to the Tort Claims Act is a recognition that Baylor is immune from suit because the Tort Claims Act "primarily provides immunity from suit” to governmental units. However, the Tort Claims Act does not create sovereign or governmental immunity from suit: it merely waives such preexisting immunity from suit in certain circumstances. See Tex. A & M Univ.-Kingsville v. Lawson, 87 S.W.3d 518, 520 (Tex.2002) ("In Texas, the bar of sovereign immunity is a creature of the common law and not of any legislative enactment.”); City of Galveston v. State, 217 S.W.3d 466, 475 (Tex.2007) ("This Court has repeatedly held that sovereign immunity is a creature of the common law and not of any legislative enactment.”); City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex.1997) (plurality op.) ("[T]he Tort Claims Act does not create a cause of action; it merely waives sovereign immunity as a bar to a suit that would otherwise exist.”); City of San Benito v. Cantu, 831 S.W.2d 416, 420 (Tex.App.-Corpus Christi 1992, no writ) ("According to the Texas Supreme Court, the statute [the Texas Tort Claims Act] does not create new duties, but simply waives the common-law doctrine of governmental immunity for the instances specified in the statute.”).

[14]

14. Chapter 104 of Texas Civil Practice and Remedies Code — entitled, "State Liability for Conduct of Public Servants” — provides 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. §§ 104.001-.009 (Vernon 2005 & Supp.2007). The chapter also provides: "This chapter does not waive a defense, immunity, or jurisdictional bar available to the state or its officers, employees, or contractors.” Id. § 104.008.

[15]

15. See id. §§ 101.001-.109.

16

. Given our dismissal of Baylor’s interlocutory appeal on jurisdictional grounds, we cannot determine whether Baylor's plea and motion, as a result of the nonsuit, had become moot before the trial court ruled on them. See Young v. Villegas, 231 S.W.3d 1, 5-6 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). We note that Hernandez's motion to correct the trial court’s orders to reflect that it did not rule on Baylor’s plea and motion remains pending below.

17

. See Tex Civ. Prac. & Rem.Code Ann. §§ 101.001-.109.

18

. Our concurring colleague would hold that "when a private-supported-medical-school 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.” However, as conceded in the concurring opinion, although Dr. Klein and Baylor in their summary judgment motion below generally asserted that they have "official immunity” in this case, Dr. Klein made no effort to establish the elements of such a defense. See Telthorster, 92 S.W.3d at 461 (noting that governmental employee is entitled to official immunity from personal liability "for (1) the performance of discretionary duties (2) that are within the scope of the employee’s authority, (3) provided that the employee acts in good faith”).