Emilio Chavez, Jr. v. Texas Tech Healthcare Systems ( 2010 )

Opinion filed July 29, 2010
In The
Eleventh Court of Appeals
__________
No. 11-08-00321-CV
__________
EMILIO CHAVEZ, JR., Appellant
V.
TEXAS TECH HEALTHCARE SYSTEMS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 07-11-17801
MEMORANDUM OPINION
Emilio Chavez, Jr., an inmate in the Texas Department of Criminal Justice – Institutional
Division, filed a pro se suit against Dr. Ben Luong, Dr. John P. Lavelle, and Texas Tech
Healthcare Systems alleging medical malpractice. The trial court entered an order dismissing all
causes of action against Dr. Luong.1 The trial court granted Texas Tech’s plea to the
1
The dismissal of Dr. Ben Luong is not before this court.
jurisdiction. Chavez appeals from the trial court’s December 9, 2008 order granting Texas
Tech’s plea to the jurisdiction.2 We affirm.
While an inmate at TDCJ-ID, Chavez went for a medical exam. Chavez alleges that,
during the exam, Dr. Luong performed unnecessary medical procedures and engaged in sexual
contact with Chavez. Chavez further alleges that Dr. Luong failed to treat Chavez’s ―serious
medical need.‖
In his first issue on appeal, Chavez argues that the trial court erred in granting the plea to
the jurisdiction and dismissing the cause of action. In its plea to the jurisdiction, Texas Tech
asked the trial court to dismiss the cause of action because Chavez did not provide the required
notice pursuant to TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a) (Vernon 2005).
Section 101.101 states:
(a) A governmental unit is entitled to receive notice of a claim against it
under this chapter not later than six months after the day that the incident giving
rise to the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
....
(c) The notice requirements . . . do not apply if the governmental unit has
actual notice that death has occurred, that the claimant has received some injury,
or that the claimant’s property has been damaged.
There is nothing in the record to indicate that Chavez provided timely notice of his claim
as required by Section 101.101. However, failure to give notice of a claim as required by
Section 101.101 does not deprive a court of subject-matter jurisdiction over an action on the
claim and cannot be properly asserted in a plea to the jurisdiction. Tex. Dep’t of Criminal
Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004); Univ. of Tex. Sw. Med. Ctr. at Dallas v.
Loutzenhiser, 140 S.W.3d 351, 362 (Tex. 2004). Failure to provide notice as required by
Section 101.101 bars any action under the Texas Tort Claims Act but does not deprive the court
of subject-matter jurisdiction. Loutzenhiser, 140 S.W.3d at 365.
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon 2008).
2
Texas Tech also argued in its plea to the jurisdiction that Chavez did not plead any facts
identifying how the State waived sovereign immunity. Sovereign immunity deprives a trial court
of subject-matter jurisdiction in lawsuits against the state or certain governmental units unless
the state consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.
2004). The Texas Tort Claims Act provides a limited waiver of governmental liability from suit.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 2005). Governmental immunity from
suit 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, 638-39 (Tex. 1999); see Simons, 140
S.W.3d at 349.
Section 101.021 provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within his
scope of employment if:
(A) the property damage, personal injury, or death arises
from the operation or use of a motor-driven vehicle or motor-
driven equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a private person,
be liable to the claimant according to Texas law.
The record does not show that Chavez pleaded any facts or otherwise established that Texas
Tech waived its immunity from suit. The trial court did not err in granting the plea to the
jurisdiction. We overrule Chavez’s first issue on appeal.
In his second, third, and fourth issues on appeal, Chavez argues that the trial court erred
in failing to notify him of the order granting Texas Tech’s special exceptions and instructing
Chavez to replead within thirty days. A party is generally charged with notice of all orders that
are rendered affecting the case. Cont’l Casing Corp. v. Siderca Corp., 38 S.W.3d 782, 790 (Tex.
App.—Houston [14th Dist.] 2001, no pet.); see Mayad v. Rizk, 554 S.W.2d 835, 838-39 (Tex.
Civ. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). Chavez does not dispute that he
received notice of the plea to the jurisdiction. The plea to the jurisdiction states that the trial
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court granted special exceptions and gave Chavez thirty days to replead. Chavez did not file a
response to the plea to the jurisdiction. The record does not support Chavez’s argument that he
was denied a fair trial and due process of law. We overrule Issues Two, Three, and Four.
We affirm the trial court’s judgment.
JIM R. WRIGHT
CHIEF JUSTICE
July 29, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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