ACCEPTED 05-17-01221-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 1/29/2018 2:46 PM LISA MATZ
5th Court of Appeals CLERK
FILED: 1-31-18 Lisa Matz, Clerk NO. 05-17-01221-CV RECEIVED IN 5th COURT OF APPEALS 3Jn tbe jf tftb '!Court of �ppeals DALLAS, TEXAS 01/29/2018 2:46:44 PM 11Ballas, m:exas LISA MATZ Clerk
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant, V. CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR, Appellees.
On Appeal from the 14th Judicial District of Dallas County, Texas Trial Court Cause No. DC-16-08022 The Honorable Eric V. Moye, Presiding Judge
APPELLEES' BRIEF
Brenda J. Williams State Bar No. 21515300 Bank of America, Oak Cliff Tower 400 South Zang Blvd., Suite 1200 Dallas, Texas 75208 Tel: (214) 946-0865 Fax: (214) 948-3038 bwilliams@bjwilliamslaw .com Counsel for Appellees Charles Wayne Taylor and Rosemary Taylor
ORAL ARGUMENT REQUESTED REQUEST FOR ORAL ARGUMENT
Pursuant to Rules 39.1 and 39.7 of the Texas Rules of Appellate Procedure,
Appellees hereby request oral argument i.n this case.
11 TABLE OF CONTENTS
PAGE
REQUEST FOR ORAL ARGUMENT ..................................................................... ii
TABLE OF CONIBNTS ............................................................................................... iii-iv
INDEX OF AUTHORITIES................................................................................... v-viii
STATEMENT OF THE CASE...... ........ ........... . . . .......... .... ....... .... . . ..... ix-x
ISSU E PRESENTED .................................................................................................. xi
APPELLEES' BRIEF .............................................................................................. l
FACTUAL BACKROUND AND PROCEDURAL HISTORY ......................... .... 2
SUMMARY OF THE ARGUMENT ..................................................... ..................... 4-5
AR.GUMENT AND AUTHORITIES ............................................................................ 6-13
ISSUE: Om THE TRIAL COURT ERR IN DENYING UT SOUTHWESTERN'S MEDICAL Center's PLEA TO THE JURISDICTION AND MOTION FOR SUMMARY JUDGMENT.
A. Standard ofReview ........................................................................ 6
B. Appellees filed suit Within the TMLA Statute ofLimitations.. .. 7-8
C. UTSW as a Component of UT System Notice and Was Not Placed
At Any Disadvantage... ...... ...... .. .. . . ..... . . . ..... .... .... . ... .. 8-12
D. UT SW had Notice When Original Petition was filed and Served on UT System's General Counsel. ............. ... ...................... 13
Ill PRAYER ......................................................................................................................... 14
. CERTIFICATE OF CO:MPLIANCE .................................................... 14
CERTIFICATE OF SERVICE ............................................................................... 14-15
iv. INDEX OF AUTHORITIES
CASES PAGE
Bailey v. Univ. of Texas Health Science Center at San Antonio, 261 S.W.3d 147 (Tex. App.-San Antonio 2008, pet. granted) ............ 11
Barth v. Bank of America, N.A. 351 S.W. 3d 875 (Tex. 2011) ...................... 11
Bland I. S.D. v. Blue,. 34 S.W.3d 547 (Tex. 2000) ........................................................ 6
Craig v. White Plaza Hotel, 289S.W 2d625 (Tex. Civ. App.-Waco 1956, writref'dn.r.e) ................ 10
Charter Oak Fire Ins. Co, v. Square, 526 S.W. 2d 635 (Tex. Civ. App.-Waco 1975, writ ref'd n.r.e.) ..................................................................... .10
Diversicare General Partners, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) ........................................................ 7
Garland Community Hospital v. Rose, 156 S.W. 3d 54l(Tex. 2004) ....................................................... 7
Dougherty v. Gifford, 826 S.W. 2d 668 (Tex App.-Texarkana 1992, no writ) ......................... 10
Flour Bluff I. S.D. v. Bass, 133 S.W. 3d 272 (Tex 2004 ....................................................... 12
In Re Greater Houston Orthopaedic Specialists, Inc., S. W 3d (Tex.2009) ... ...................................................................... 10
Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005) ........................................................ 8
v Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012) ........................................................................ 8
Reddy Partnership/5900 North Freeway LP v. Harris County Appraisal District, 370 S.W. 3d 373 (Tex. 2012) ............................................. 5,10,13
Rico v. Judson Lofts, Ltd., 404 S.W. 3d 762 (Tex. App.-San Antonio 2013, pet. denied) ............... 10
Shell Pipe Line Co. v. Wheeler, 730 S.W. 2d 851 (Tex. App.-El Paso 1987, writ ref'd n.r.e.) ............... ll
Sloan v. Farmer, 217 S.W.3d 763 (Tex. App.~Dallas 2007, pet. denied) ........................ 7
Texas Dept. ofParks & Wildlife v. Miranda,. 133 S.W.3d 217 (Tex. 2004) ......................................................................... 6
Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) ....................................................... 6
Univ. ofTexas at Austin v. Hayes, 327 S.W.3d 113 (Tex. 2010) ......................................................................... 6
Univ. of Texas Health Science Center at San Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011) ........................................................ 11
vi Whitehead v. Univ. of Texas Health Science Ctr. at San Antonio, 854 S.W.2d 175 (Tex. App.-San Antonio 1993, no pet.) .......................... 12
STATUTES
Texas Education Code Ann. §§ 65.11 ....................................................................................................... 8 §§ 65.31(g) ................................................................................................... 8 §§ 65.31 (a) ................................................................................................... 8,9 §§ 65.02 ........................................................................................................ 8,9
Texas Medical Liability Act (TMLA) Chapter 101 .................................................................. ix,x,2,4,7
Texas Tort Claims Act (TTCA), Texas Civil Practice and Remedies Code
§§ 74.001 ................................................................................................ .ix,x,7
§§ 74.051 ................................................................................................ .ix,x,2
§§ 74.251 ................................................................................................. .ix,x,2
vii i RULES
Texas Rules of Appellate Procedure
Rule 38.2 ............... __ .............................................................. 1 Rules 39.1 and39.7 .................................................................. .ii Rule 9.2 .................................... . ........................................... 14 Rule 9.4 ................................................................................ 14 Rule 9.5(b) ......... .... ......... ..... ............................................. 14,15
Texas Rules of Civil Procedure
Rule 62 ... __ ......................................................................... 10
viii STATEMENT OF THE CASE
This case is a health care liability claim filed against a governmental unit of the State of Texas under the Texas Medical Liability Act (TMLA), Chapter 74, and the Texas Tort Claims Act (TTCA), Chapter 101, of the Texas Civil Practice and Remedies Code. Appellees' health care liability claims arise out of two bladder related surgeries performed on Charles Wayne Taylor at the V.A. North Texas Health Care System in Dallas, Texas, on April21 and April 24, 2014. During these procedures, Appellees assert that a physician at Uf Southwestern committed negligence that led to alleged personal injuries to Mr. and Mrs. Taylor. Appellees provided pre-suit notice of claim to University of Texas Southwestern Medical Center by sending the notice to Leah Hurley, The applicable statute of limitations under the TMLA, which is two (2) years plus 75 days for Appellees' claim, ran on July 8, 2016. The lawsuit naming the defendant as "University of Texas Southwestern Medical Center/The University of Texas System" was filed on July 5, 2016. On July 18, 2016, the original petition and citation was served by certified mail on the Vice Chancellor and General Counsel for University of Texas System. (CR 117-118). Appellees amended the petition revising the defendant's name to "University of Texas Southwestern Medical Center" on February 22, 2017. (CR138-143). University of Texas Southwestern Medical Center is a component of The University of Texas System and therefore clearly had notice of the lawsuit on on July 18, 2016 when service made on Uf System Chancellor and General Counsel. UT Southwestern Medical Center and UT System are closely related entities and the filing of the amended petition related back to the filing of
ix the original pet1t10n. (App. A). In this case, there was no failure to comply with the applicable statute of limitations under TMLA which negated a waiver of UT Southwestern's sovereign immunity under the TTCA.
X ISSUE PRESENTED
DID THE TRIAL COURT ERR IN DENYING UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER'S PLEA TO THE JURISDICTION AND MOTION FOR SU1\1MARY JliDGMENT.
XI NO. 05-17-01221-CV
]n tbr jfiftb QCourt of §ppeals iJ.Ballas, Ut:exas
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant, v. CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR, Appellees.
On Appeal from the 14th Judicial District of Dallas County, Texas Trial Court Cause No. DC-16-08022 The Honorable Eric V. Moye, Presiding Judge
TO THE HONORABLE FIFTH COURT OF APPEALS:
Pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, Appellees'
Brief Charles Wayne Taylor and Rosemary Taylor ("Taylors"), in the above styled
and numbered appeal, files this Brief and would respectfully show that the Court
should affirm the trial court order denying University of Texas Southwestern
Medical Center's Plea to the Jurisdiction and Motion for Summary Judgment.
1 FACTUAL BACKGOUND AND PROCEDURAL HISTORY
Plaintiffs' Original Petition was filed naming "University of Texas Southwestern
Medical Center/University of Texas System" as Defendant on July 5, 2016, within
the two-year and seventy-five-day statute of limitations period as set out in Texas
Healthcare Liability Act, Texas Civil Practice and Remedies Code §§ 74.051 &
74.251. Plaintiffs' First Amended Original Petition, was filed on February 22, 2017
and revised the name of the Defendant to "University of Texas Southwestern
Medical Center" ("UTSW')
In addition, UTSW had actual notice of the claim within the six month time
period allowed by the TTCA. Plaintiffs injuries claimed in this case were related to
treatment by UTWS physician, Ryan J. Mauck, during April21 to Apri130, 2014 at
the Dallas Veterans Medical Center involving surgical equipment being left in after
surgery. On July 8, 2014 surgery was performed at UTSW by another UTWS
physician to remove the surgical equipment left in during the prior surgery.
On April 19, 2016, Appellees certified mailed Leah Hurley, UTSW's Vice President,
Legal Affairs the pre-suit notice of claim pursuant to §74.051 of the TMLA. ( CR 280-
285) On July 5, 2016, Plaintiffs' Original Petition was filed naming "University of
Texas Southwestern Medical Centerffhe University of Texas System as the defendant
in the case. (CR 13-18). On July 18, 2016, David Miller, of UT System's General
Counsel's Office signed and accepted the citation whlch stated "University of Texas
2 Southwestern Medical Center" as the Defendant on the behalf of the Chancellor and
General Counsel, Daniel H. Sharphom, JD. (117-118, 82). UTSW does not dispute that
UTSW is not a component of and one of fourteen educational institutions governed by
UT System and are therefore closely related entities. (CR 120-122) (App. A). On
December 22, 2016, UT System filed a Plea to the Jurisdiction alleging that no UT
System employees were involved in the health care in question. On February 22, 2017
Plaintiffs filed their First Amended Original Petition, which changed the name of the
Plaintiff from "University of Texas Southwestern Medical Center/The University ofTexas
System" to "University of Texas Southwestern Medical Center" (CR 73-96). On February
28, 2017, the Court granted UT System's Plea and severed the UT System from the
amended suit. (CR-147-148). Defendant UTSW was served with Plaintiffs' First
Amended Original Petition on March 4, 20 I 7 and filed their Original Answer and Jury
Demand on March 23, 2017 (CR 256-259, 260-265).
UTSW filed a Plea to the Jurisdiction and Motion for Summary Judgment
based on the defense of statute of limitations. (CR 213-265). On October 4, 2017,
an oral hearing was held and the trial court denied UTSW's PJea to Jurisdiction and
Motion for Summary Judgment (CR 336).
3 SUMMARY OF ARGUMENT
UTSW's sovereign immunity has been waived in this case. Appellees
complied with all prerequisites to filing suit and timely filed suit within the
statutory period. In health care liability claims against state governmental units, a
plaintiff must comply with the requirements of both the TTCA and Texas Medical
Liability Act (TMLA). The applicable statute of limitations under the TMLA is
two-years plus 75 days, if proper pre-suit notice of claim is provided. Appellees
argument is based on the amended petition relating back to the filing of the original
petition and therefore timely filed in instances where there is merely a misnaming
of the defendant, involves related parties, misnamed party had notice and was not
placed at any disadvantage.
Appellees did not fail to comply with TMLA statute of limitations in filing
their suit against UT Southwestern Medical Center/UT System, which amounted to
simply misnaming the Defendant. Appellees filed their original suit against
"University of Texas Southwestern Medical Center/ University of Texas System"
within the TMLA's limitations period. In this case, the misnaming involved closely
related parties as University of Texas Southwestern Medical Center is a component
4 ofThe University of Texas System. (App. A).
Appellees misnaming the Defendant in their original petition does not prevent the
waiver ofUT Southwestern's sovereign immunity under the TTCA. In Appellees case,
the amended petition related back to the original suit which named "University of
Texas Southwestern Medical Center!University of Texas System" as the Defendant. In
Appellees' case, the tolling doctrines of misnomer and/or misidentification allows an
abatement of the proceeding until the misnomer is corrected. Reddy Partnership/5900
North Freeway LP v. Harris County Appraisal District, 370 S.W. 3d 373, 55 Tex. Sup.
Ct. J. 1099, 1101 (Tex. 2012). Appellees lawsuit was timely filed and the amended
petition related back and merely served to clarify the name of the Defendant.
Therefore, the trial did not commit reversible error in denying UTSW's Plea to the
Jurisdiction.
5 ARGUMENT AND AUTHORITIES
A. Standard of Review
The Court must review evidence as it relates to the question of the Court's
jurisdiction. Miranda, 133 S.W.3d at 223 & 226-228; Bland !.S.D. v. Blue, 34
S.W.3d 547, 555 (Tex. 2000). If the jurisdictional evidence is undisputed or fails
to raise a fact question, the suit should be dismissed for want of subject matter
jurisdiction; Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).
However, courts are to construe the pleadings liberally in favor of the Plaintif. In
Univ. of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the Texas
Supreme Court reasoned as follows:
When a plea the jurisdiction challenges the existence of jurisdictional facts, the trial court must review the relevant evidence to determine whether a fact issue exists. Miranda, 133 S. W. 3d at 226. The Plaintiff bears the burden to allege facts demonstrating jurisdiction, and we construe the pleadings liberally in the plaintiffs favor. !d. If the evidence raises a fact question on jurisdiction, the trial court cannot grant the plea, and the issue must be resolved by the trier of fact.Jd at227-228.
6 B. Appellees Filed Suit Within the TMLA Statue of Limitations
UTSW contends that in a statutory cause of action against a governmental
entity, the failure to adhere to the statute's mandatory provisions that must be
accomplished before filing suit is a jurisdictional bar to suit. AppelJees filed suit
on July 5, 2016, which was within the applicable statute oflimitations. (CR 13-
18). The facts in Appellees case are clearly distinguishable from all of the cases
cited by UT Southwestern in light of the fact that Appellees lawsuit was filed
within the two years and 75 day time period. In bringing their medical
negligence/ health care liability claim against UTSW/UTS, Appellees complied
with the TMLA as well as the TTCA. Tex. Civ. Prac. Rem. Code Ann.§§
7 4.001 et seq. The cases cited by Appellant to support their argument, all involve facts in
which the lawsuit was filed after the statute oflimitation ran or the plaintifPs failure related
timely perform other prerequisites to filing suit. In Diversicare General Partners, Inc. v.
Rubio, 185 S.W.3d 842,851 (Tex. 2005), the medical liability suit was filed four
years after claim arose. In Murphy v. Russell, 167 S.W.3d 835, 837-38 (Tex.
2005), expert report was not filed within the 180-day time period. In Garland
Community Hasp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004), the issue was
whether there was a good faith effort to comply with definition of an expert
report. In Sloan v. Farmer, 217 S.W.3d 763,767 (Tex. App.-Dallas 2007, pet.
7 denied), involved the failure of the plaintiff to file an expert report. Furthermore,
Prairie View A&M University v. Chatha, 381 S.W.3d at 510, was cited by UTSW
relating to, no waiver of immunity where a party fails to adhere to the statutes
mandatory provisions. Chatha involved whether the 180-day statutory pre-suit
requirement of filing a complaint with the Texas Workforce Commission was
required to be complied with prior to the filing an EEOC discrimination lawsuit
The cases UTSW is relying on to support their no waiver argument are clearly
distinguishable from Appellees case, in that Appellees timely filed their original
suit and timely satisfied all other pre-suit requirements within the statutory period.
C. UTWS as a Component of UTS and Subject to UTS Governance had Notice of Original Petition, Was Not Surprised or Placed at any Disadvantge
Section 65.11 of the Education Code charges the UT Board ofRegents with the
"administration" and "organization" of the UT System institutions and entities to "achieve
the maximum operating efficiency of such institutions and entities.'' Tex. Educ. Code
Ann. §65.11 (West 2002). (App. A). Section 65.3l(g) allows the UT Board of Regents
"by rule to delegate a power or duty of the board to a committee, officer, employee, or
other agent of the board." Jd. §65.31(g). (App. A) Section 65.31(a) provides that the UT
Board of Regents "is authorized and directed to govern, operate, support, and maintain
each of the component institutions that are now or may hereafter be included
8 in a part of The University of Texas System." !d. § 65.3l(a). Section
65.02 specifically lists 12 entities that comprise the UT System. !d. § 65.02. It
further lists 29 subordinate entities that are included within the 12 main
entities. !d. The statute specifically identifies UT Southwestern Medical
Center.Jd. Subsection (b) provides that "The University of Texas System shall
also be composed of such other institutions and entities as from time to time may
be assigned by specific legislative act to the governance, control, jurisdiction, or
management ofThe University ofTexas System." !d. § 65.02(b).
The Chancellor and General Counsel for University of Texas Systems was
served via certified mail with Plaintiffs Original Petition on July 18, 2016 and
the Officer's Return shows "University of Texas Southwestern Medical Center"
as the Defendant. (CR 117-118). The citation was accepted by UT Systems,
presumably on behalf ofUTSW as one of their component institutions. UTSW
has not alleged that they were not put on notice of the lawsuit or were placed at
any disadvantage by the misnomer of the plaintiff in the original petition as,
"University of Texas Southwestern Medical Center/ University of Texas System".
9 Pursuant to Texas Rule of Civil Procedure 62, an error in naming a
party to a suit or a faulty description of the status or capacity of a party may
be corrected by a proper amendment to the pleadings Tex. R. Civ. P. 62.
When the error consists merely of a "misnomer," such as misstating the
party's name, capacity, or status, the amended pleading relates back to the
original filing and tolls the applicable statute of limitations In re Greater
Houston Orthopaedic Specialists, Inc., 295 S. W3d 323, 325-326 (Tex.
2009) (plaintiff's misidentification of itself did not mislead defendant);
Rico v. Judson Lofts ,Ltd, 404 S. W3d 762, 765-766 (Tex. App.-San
Antonio 2013, pet. denied) Charter Oak Fire Ins. Co. v. Square, 526
S. W2d 635, 637 (Tex. Civ. App.-Waco 1975, writ ref'd n.r.e.) Craig v.
White Plaza Hotel, 2898. W2d 625, 630 (Tex. Civ. App.-Waco 1956, writ
ref'd n.r.e.) Dougherty v. Gifford, 826 S. W2d 668, 676---677(Tex. App.-
Texarkana 1992, no writ. In cases involving a misnomer that is not
misleading and the parties are aware of the entity the misnomer is referring
to the wrongly identified party is entitled to an abatement of the proceeding
until the misnomer is corrected. Reddy Partnership/5900 North Freeway
LP v. Harris County Appraisal District, 370 S. W3d 373, 55 Tex. Sup. Ct. J.
1099, 1101 (Tex. 2012) (no prejudice or disadvantage from misnomer);
10 Barth v. Bank of America, NA., 351 S. W.3d 875, 876--877 (Tex. 2011) (no
misnomer when party misnames itself or another party, but correct parties
are involved); Shell Pipe Line Co. v. Wheeler, 730 S. W.2d 851, 852 (Tex.
App.-El Paso 1987, writ ref'd n.r.e.) (prior dealings and correspondence
between parties in correct name of corporation precluded finding of
surprise when amendment of pleadings offered to correct name).
In University of Texas Health Science Center v. Bailey, 332 S. W. 3d 395(Tex.
2011), the Supreme Court of Texas, stated that the relation-back doctrine does not
affect the running of limitations on a cause of action; rather, it defines what is to be
included in "the action" to which limitations applies. The Court reasoned as follows:
The relation-back doctrine does not affect the running of limitations on a cause of action; rather, it defines what is to be included in "the action" to which limitations applies. The common law took a very narrow view. Professor Wright and his co-authors tell us:
At common law a litigant had very little freedom to amend the written pleadings other than to correct formal defects and remedy errors of oversight. Thus, an amendment that attempted to introduce [**12] a new cause of action or to change the form of the action - for example, from trespass to trespass on the case- would be disallowed. 24
Our early view was similarly strict. In a 1901 case, we held that in a suit for breach of an express contract, a claim for breach of an implied contract, added by amended pleadings, was barred by limitations. 25 To avoid the bar of limitations, we said, "[i]t is not sufficient that the causes of action be
11 similar in their nature, but they must be essentially identical." 26 The Legislature took a broader approach in 1931 , enacting the rule that remains the law today:
If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence. 2 7
But narrow or broad, the purpose of the relation-back doctrine is to determine not when, but on what limitations runs. Because the doctrine does not impede the running of [**13] limitations on health care liability claims, it is not, under Chilkewitz, an "other law", the application of which is forbidden. Even apart from Chilkewitz, because the doctrine determines "the action" that must be timely filed, its application is a matter of necessity. 322 S.W. 3d 395, 399.
Furthermore, the limitations period should be tolled if there is a determination that
Plaintiff misidentified the Defendant in the original petition. "Misidentification", is the
naming of an existing person or entity under the mistaken belief that that person is the
correct party. The Texas Supreme Court has held that the statute of limitations will be
tolled in misidentification cases if there are two separate, but related, entities that use a
similar trade name and the correct entity had notice of the suit and was not misled or
disadvantaged by the mistake. Flour Bluff IS.D. v. Bass, 133 S. W3d 272, 274 (Tex.
2004).
12 D. UTSW Had Notice of the Suit when Plaintiff's Original Petition was Filed and served on UT System's General Counsel
UTSW's alternative argument relating to failure of Appellees to use due
diligence in obtaining service on UTSW, does not apply in this case. The purpose
of service is to provide notice of the suit. UTS W had notice of the suit when
UT System's General Counsel, Daniel H. Sharphorn, J.D. was served with
citation on July 18,2016 (CR117-118, 82). According toUT System's website,
the Office of their General Counsel provides comprehensive legal services to and
for their 14 UT institutions, and manages litigation services provided by the
Attorney General's Office and outside counsel. (CR135-137) (App. B). UTSW is
one of 14 UT institutions. (CR120-123) (App. A). In addition, Jason Warner,
Assistant Attorney General, Office of Attorney General's was UT System's
Counsel related to Appellees original petition and was UTSW's for the amended
petition. (CR 19-22, 149-152).
In Appellees' case, the tolling doctrines of misnomer and/or
misidentification allows an abatement of the proceeding until the misnomer is
corrected. Reddy Partnership/5900 North Freeway LP v. Harris County
Appraisal District, 370 S.W. 3d 373, 55 Tex. Sup. Ct. J. 1099, 1101 (Tex. 2012).
13 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court
affirm the trial court's denial of its Plea to the Jurisdiction and Motion for
Summary Judgment, and such further relief, both at law and in equity, to which
they may be justly entitled.
Respectfully submitted,
!si'Br~ r. w~ Brenda J. Williams State Bar No. 21515300 Bank of America, Oak Cliff Tower 400 South Zang, Suite 1200 (214) 946-0865 Tel (214) 948-3038 Fax bwilliams@bj williamslaw.com Attorney for Appellees
CERTIFICATE OF COMPLIANCE
I hereby certify that this Appellees' Brief word count is in accordance with Tex. R. App. P. 9.4. Is! 'Br~..T. W~ Brenda J. Williams
CERTIFICATE OF SERVICE
I do hereby certify compliance with Tex. R. App. P. 9.2 and 9.5(b). A true and correct copy of the foregoing instrument has been served on all counsel, by electronic transmission to the electronic mail address on file with the electronic filing manager pursuant to Rule 9.5(b)(1 ). If a party has not designated an electronic mail address with the electronic filing manager, the party was served a true and correct
14 copy of the foregoing instrument in person, by mail, by commercial delivery service, by fax or by email, or by such other manner as the Court in its discretion may direct pursuant to Rule 9.5(b)(2). Service was made on all parties as provided on January 28,2017
Brenda J. Williams
15 NO. 05-17-01221-CV
]n tbe jf iftb Q!:ourt of £lppeal� 11Ballas, m:exas
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant, V. CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR, Appellees.
APPENDIX TO APPELEES' BRIEF
Appendix A Texas Education Code Ann.§§ 65.01-65.16; 65.31
Appendix B Website-University of Texas System- The Office of General Counsel APPENDIX "A" EDUCATION CODE
TITLE 3. HIG�IER EDUCATION
SUBTITLE C. THE UNIVERSITY OF TEXAS SYSTEM
CHAPTER 65. ADMINISTRATION OF THE UNIVERSITY OF TEXAS SYSTEM
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 65.01. DEFINITIONS. In this chapter: ( 1) "System" or "university system fl means The University of Texas System. (2) "Board" means the board of regents of The University of Texas System.
Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept. 1, 1971.
Sec. 65.02. ORGANIZATION. (a) The University of Texas System is composed of the following institutions and entities: (1) The University of Texas at Arlington, including: (A) The University of Texas Institute of Urban Studies at Arlington; and (B) The University of Texas School of Nursing at Arlington; ( 2)The University of Texas at Austin, including: (A} The University of Texas Marine Science Institute; (3) The University of Texas McDonald Observatory at �aunt Locke; and ,:C) The University of Texas School of Nursing at Austin; (3) The University of Texas at Dallas; ( 4) The University of Texas at El Paso, including The University of Texas School of Nursing at El Paso; (5) The University of Texas of the Permian Basin; (6) The University of Texas at San Antonio, including the University of Texas Institute of Texan Cultures at San Antonio; (7) The University of Texas Southwestern Medical Center, includins;: (A) The University of Texas Southwestern Medical School at Dallas; (B) The University of Texas Southwestern Graduate School of Biomedical Sciences at Dallas; and (C} The University of Texas Southwestern Allied Health Sciences School at Dallas; f8) The University of Texas Medical Branch at Galveston, including: (A) The University of Texas Medical School ac Galveston; (Bl The University of Texas Graduate School of Biomed:i.cal Sciences at Galves-con; (C) The University of Texas School of Allied Health Sciences at Galveston; (D) The University of Texas Marine Biomedical Institute at Galveston; :EJ The University of Texas Hospitals at Galveston; a.nd (Fl The University of Texas School of Nursing at Galveston; {9) The University of Texas Health Science Center at Houston, including: (A) The University of Texas Medical School at Houston; (BJ The University of Texas Dental Branch at Houston; (C) The University of Texas Graduate School of Biomedical Sciences at Houston; (D) The University of Texas School of Health Information Sciences at Houston; (E} The University of Texas School of Public Health at Housi:on; (F) The University of Texas Speech and Hearing Institute at Houston; and (G) The University of Texas School of Nursing ac Houston; (10) The University of Texas Health Science Center at San Antonio, including: (A} The University of Texas Medical School at San Ani:on.io; (B) The University of Texas Dental School at San Antonio; IC) The University of Texas Graduate School of 3iomedical Sciences at San Antonio; (D) The University of Texas School of Allied Health Sciences at San Antonio; and (E) The University of Texas School of Nursing at San Antonio; (11) The University of Texas M. D. Anderson Cancer Cente=, including: (A) The University of Texas M. D. Anderson Hospital; (B} Tbe University of Texas M. D. Anderson 'Tumor Institute; and (C) The University of Texas M. D. Anderson Science Park; and (12) The University of Texas Health Science Center--South Texas, including The University of Texas Medical School--South Texas, if established under Subchapter N, Chapter 74_ {b) The University of Texas System shall also be composed of such other institutions and entities as from time to time may b� assigned by specific legislative act to the governance, contra�, jurisdiction, or management of The University of Texas Systerr,_
Added by Acts 1973, 63rd Leg., p. 1186, ch. 435, Sec. 1, eff. Aug. 27, 1973. Amended by Acts 1989, 71st Leg., ch. 644, Sec. 2, eff. June 14, 1989; Ac-cs 2001, Tlth Leg., ch. 325, Sec. 1, eff. Sept. l, 2001. A.mended by: Acts 2009, 81st Leg., R.S., Ch. 1341 (S.B. 98), Sec. 5, eff. June 19, 2009. Acts 2013, 83rd Leg., R.S., Ch. 179 (H.B. l8H), Sec. 9, eff. September 1, 2013.
SOBCHAPTER B. ADMINISTRATIVE PROVISIONS Sec. 65.11. BOARD OF REGENTS. The government of the university system is vested in a board of nine regents appointed by the governor with the advice and consent of the senate. The board may provide for the administration, organization, and names of the institutions and entities in The University of Texas System in such a way as will achieve the maximum operating efficiency of such institutions and entities, provided, however, that no institution or entity of The University of Texas System not authorized by specific legislative act to offer a four-year undergraduate program as of the effective date of this Act shall offer any such four-year undergraduate program without prior recorrmendation and approval by a two-thirds vote of the Texas Higher Education Coordinating Board and a specific act of the Legislature.
Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept. 1, 1971. Amended by Acts 1973, 63rd Leg., p. 1188, ch. 435, Sec. 2, eff. Aug. 27, 1973; Acts 1989, 71st Leg., ch. 644, Sec. 3, eff. June 14, 1989.
Sec. 65.12. QUALIFICATIONS; TERMS. Each member of the board shall be a qualified voter; and the members shall be selected from different portions of the state. The members hold office for staggered terms of six years, with the terms of three expiring Eebrua.r:y 1 of odd-numbered years.
Acts 1971, 62nd Leg., p. 3144, ch. 1024, arc. 1, Sec. 1, eff. Sept. 1, 1971. Amended by Acts 1983, 68th Leg., p. 2837, ch. 484, art. III, Sec. 1, eff. June 19, 1983.
Sec. 65.13. BOARD OFFICERS. The board .shall elect a chairman from its members to serve at the will of the board. The comptroller shall be the treasurer of the university system.
Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept. l, 1971. Amended by Acts 1997, 75th Leg., ch. 1423, Sec. 5.16, eff. Sept. 1, 1997. Sec. 65.14. EXPENSES. The reasonable expenses incurred by members of the board in the discharge of their duties shall be paid from the available university fund.
Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept. 1, 1971.
Sec. 65.15. SEAL. The board may make and use a common seal and may alter it at will.
Acts 1971, 62nd Leg., p. 3145, ch. 1024, art. 1, Sec. 1, eff. Sept. 1, 1971.
Sec. 65.16. SYSTEM CENTRAL ADMINISTRATION OFFICE; EXECUTIVE OFFICER. (a) The board shall establish a central administration of the university system to provide oversight and coordin ation of the acti viU. es of the system and each component institution within the system. (bl The board shall appoint a chief executive officer and such other executive officers of the system central administration as the board considers appropriate. The board shall determine each officer's term of appointment, salary, and duties. (c) Subject to the power and authority of the board, the chief execu�ive officer is responsible for the general management of the university system within the policies of the board and for making recommendations to the board concerning the organization of the universit y system and the appointment of the chief administrative officer for each component institution within the system. (d) In addition to other powers and duties provided by this code or other law, the central administrat.ion of the system shall recommend policies and rules to the governing board of the system to ensure conformity with all laws and rules and to provide uniformity in data collection and financial reporting procedures.
Added by Acts 1989, 71st Leg., ch. 464, Sec. 1, eff. June 14, 1989.
SUBCHAPTER C. POWERS AND DUTIES OF BOARD Sec. 65.31. GENERAL POWERS AND DUTIES. (a) The board is authorized and directed to govern, operate, support, and maintain each of the component institutions that are now or may hereafter be included in a part of The University of Texas System. (b) The board is authorized to prescribe for each of the component institutions courses and programs leading to such degrees as are customarily offered in outstanding American universities, and to award all such degrees. It is the intent of the legislature that such degrees shall include baccalaureate, master's, and doctoral deg.::ees, and their equivalents, but no new department, school, or degree-program shall be instituted without the prior approval of the Coordinating Board, Texas College and University System. (c) The board has authority to promulgate and enforce such other rules and regulations for the operation, control, and management of the university system and the component institutions thereof as the board may deem either necessary or desirable. The board is specifically authorized and empowered to determine and prescribe the number of students that shall be admitted to any courser department, school, college, degree-program, or institution under its governance. (d) The board is specifically authorized to make joint appointments in the component institutions under its governance. The salary of any person who receives such joint appointment shall be apportioned to the appointing institutions on the basis of services rendered. (e) The board is specifically authorized, upon terms and conditions acceptable to it, to accept, retain in deposi�ories of its choosing, and ad,_�inister gifts, grants, or donations of any kind, from any source, for use by the system or any of the comporn:;mt insti�utions of the system. (£) No component institution which is not authorized to offer a four-year undergraduate program shall offer a four-year undergraduate program without the specific authorization of the legislature. (g) The board by rule may delegate a power or duty of the board to a committee, officer, employee, or other agent of the board.
Acts 1971, 62nd Leg., p. 3145, ch. 1024, art. 1, Sec. 1, eff. Sept. l, 1971. Amended by Acts 1971, 62nd Leg., p. 3360, ch. 1024, art. 2, APPENDIX "B" UT System Offices [ University of Texas System Page 2 of 3
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