The University of North Texas Health Science Center v. Celina Gonzalez, Jose Gonzalez Aguilar. and Edna Gonzalez Aguilar ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00310-CV
___________________________
THE UNIVERSITY OF NORTH TEXAS HEALTH SCIENCE CENTER,
Appellant
V.
CELINA GONZALEZ, JOSE GONZALEZ AGUILAR, AND EDNA GONZALEZ
AGUILAR, Appellees
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-332573-22
Before Kerr, Bassel, and Womack, JJ.
Opinion by Justice Kerr
OPINION
Death is unique. It is unlike aught else in its certainty and its
incidents. A corpse in some respects is the strangest thing on earth. A
man who but yesterday breathed and thought and walked among us has
passed away. Something has gone. The body is left still and cold, and is
all that is visible to mortal eye of the man we knew. Around it cling love
and memory. Beyond it may reach hope. It must be laid away. And the
law—that rule of action which touches all human things—must touch
also this thing of death. It is not surprising that the law relating to this
mystery of what death leaves behind cannot be precisely brought within
the letter of all the rules regarding corn, lumber and pig iron. . . . In
[developing rules and legal principles for dealing with remains,] the
courts will not close their eyes to the customs and necessities of
civilization in dealing with the dead and those sentiments connected with
decently disposing of the remains of the departed which furnish one
ground of difference between men and brutes.
—Louisville & N.R. Co. v. Wilson, 51 S.E. 24, 25 (Ga. 1905)
Introduction
Although this case has unsettling facts—not until an open-casket funeral
service did a California family discover that their loved one’s corpse was switched
with that of a stranger and, worse, had already been harvested for organs and
cremated in Texas—the legal issue before us is the prosaic one of sovereign immunity
and whether facts have been or can be alleged showing waiver of that immunity.
Because we conclude that the deceased’s family did not and cannot plead facts
sufficient to show that the University of North Texas Health Science Center’s actions
fall within the Texas Tort Claims Act’s immunity waiver for personal injury caused by
a use or misuse of tangible personal property, we hold that the trial court erred by
denying UNTHSC’s Rule 91a motion to dismiss and will reverse and render judgment
2
accordingly. We do so not without great sympathy for the appellees, Celina Gonzalez,
Jose Gonzalez Aguilar, and Edna Gonzalez Aguilar, who are the family of Jose Carlos
Gonzalez.
Background and Procedural History
Jose,1 a long-haul trucker, fell ill while driving across Tarrant County, Texas,
and died on March 20, 2020, at Baylor Scott & White Medical Center in Grapevine.
The Tarrant County Medical Examiner’s Office took possession of his body. Soon
after, Jose’s widow Celina arranged with a funeral home in Chula Vista, California, to
bring her husband’s body home for an open-casket service and burial. The California
funeral home contracted with the Brown, Owens and Brumley funeral home in Fort
Worth to pick up Jose’s body from the medical examiner’s office, embalm it, and have
it shipped to California.
Brown, Owens and Brumley dutifully picked up a body, but the M.E.’s office
released the wrong one: that of Jesse Gonzalez. Jesse’s body was slated to go to the
Willed Body Program at UNTHSC, and the M.E.’s office sent Jose’s body, “thinking
it was Jesse Gonzalez, to [UNTHSC], wherein it was subsequently harvested for
organs and then cremated” by an outside entity, DMA Cremations, Inc.
1
Because Jose Gonzalez’s body was confused with that of a Jesse Gonzalez, in
discussing the facts we will use both men’s first names for clarity; we mean no
disrespect. The facts recited are all taken from the plaintiffs’ live pleading.
3
As arranged by Brown, Owens and Brumley, a corpse was transported in late
March or early April to California by Accucare Mortuary Services, which presumably
thought that it was taking Jose back to his family. 2 Later in April, at Jose’s funeral
service, his family first discovered that Jesse—a complete stranger—had been placed
in the coffin for viewing.
Jose’s family (the Gonzalezes, collectively) sued UNTHSC and others for
negligence, gross negligence, DTPA violations, and negligent infliction of emotional
distress. UNTHSC moved for dismissal under Rule 91a, arguing that its sovereign
immunity had not been waived for the Gonzalezes’ claims (and that Texas does not
recognize the tort of negligent infliction of emotional distress in any event). See Tex.
R. Civ. P. 91a; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–.109 (Tort
Claims Act). The Gonzalezes responded that UNTHSC would be entitled to
governmental immunity only if its employees had official immunity and that discovery
was thus needed to identify the employees involved, to which UNTHSC replied that
official immunity—an affirmative defense—was irrelevant here.3 Cf. Kassen v. Hatley,
887 S.W.2d 4, 8 (Tex. 1994) (“If a plaintiff has a right of action against the
government due to the state’s waiver of sovereign immunity, this right is not affected
by whether a government employee has official immunity.”). Over a month and a half
2
The Gonzalezes do not allege that any of the parties sued in connection with
this awful mix-up knew that they were dealing with the wrong man’s body.
3
On appeal, official immunity is not an issue.
4
after UNTHSC filed its Rule 91a motion, and two days before a visiting judge
conducted a hearing on it, the Gonzalezes filed a third amended petition.
Consistent with the presiding judge’s earlier ruling on the medical examiner’s
earlier-filed plea to the jurisdiction, the visiting judge entered an order denying
UNTHSC’s motion to dismiss the Gonzalezes’ negligence claims “at this time,”
determining that “Plaintiff[s] should be given the opportunity to conduct limited
discovery and amend their petition as appropriate.”4 UNTHSC’s motion was granted
as to all other claims.
UNTHSC perfected this interlocutory appeal from the trial court’s declining to
dismiss the negligence claims against it. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8). The Gonzalezes have not cross-appealed the trial court’s dismissal of
their non-negligence-related claims, so we need address only one issue, which
UNTHSC frames as, “Do Plaintiffs’ pleadings allege facts affirmatively demonstrating
a waiver of [UNTHSC’s] immunity from suit under subsection 101.021(2) of the Tort
Claims Act for a negligent use or misuse of tangible personal property?”
4
The order on the M.E.’s jurisdictional plea had dismissed the Gonzalezes’
claims for gross negligence, DTPA violations, and negligent infliction of emotional
distress but allowed limited discovery to proceed on the negligence claims: Because it
was “possible that a waiver of immunity may apply” to the Gonzalezes’ negligence
claims, “the Court determines that Plaintiffs should be given the opportunity to
conduct limited discovery and amend their petition and the Medical Examiner’s Plea
to the Jurisdiction should be denied at this time with regard to Plaintiffs’ negligence
claims.” The visiting judge understandably followed the presiding judge’s lead.
5
Sovereign Immunity and the Tort Claims Act
Immunity from suit deprives a court of subject-matter jurisdiction. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (op. on reh’g). To
establish subject-matter jurisdiction, a plaintiff must allege facts that affirmatively
demonstrate the court’s jurisdiction to hear the claim. Town of Shady Shores v. Swanson,
590 S.W.3d 544, 550 (Tex. 2019). In suits against the government, plaintiffs bear the
concomitant burden of establishing a waiver of sovereign immunity.5 Tex. Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Whether a court has subject-matter
jurisdiction is a question of law, Miranda, 133 S.W.3d at 226, and we interpret
immunity waivers narrowly because the legislature’s intent to waive immunity must be
clear and unambiguous, Mission Consol. ISD v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).
The Tort Claims Act provides a limited immunity waiver under certain discrete
scenarios. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, .022, .025. The only
scenario relevant here, as the Gonzalezes note, is that an entity such as UNTHSC is
liable for “personal injury . . . so caused by a . . . use of tangible personal . . . property
if the governmental unit would, were it a private person, be liable to the claimant
according to Texas law.” Id. § 101.021(2). Later in this opinion we will discuss what
using tangible personal property means within this case’s facts.
5
The Gonzalezes agree that UNTHSC is a governmental unit.
6
Rule 91a and Standard of Review
We review de novo a trial court’s ruling on a plea to the jurisdiction, which is
essentially what UNTHSC raised through its Rule 91a motion to dismiss. See San
Jacinto River Auth. v. Medina, 627 S.W.3d 618, 621 (Tex. 2021) (treating river authority’s
Rule 91a motion as a jurisdictional plea); Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.
2000) (noting that absence of subject-matter jurisdiction may be raised by different
procedural vehicles); Univ. of N. Tex. Health Sci. Ctr. v. Jimenez, No. 02-16-00368-CV,
2017 WL 3298396, at *3 (Tex. App.—Fort Worth Aug. 3, 2017, pet. denied) (mem.
op.) (construing UNTHSC’s motion to dismiss for lack of subject-matter jurisdiction
as functional equivalent of plea to the jurisdiction).
A Rule 91a movant may seek dismissal of a cause of action on the ground that
it has no basis in law or in fact. 6 See Tex. R. Civ. P. 91a.1. A cause of action has no
legal basis if the allegations, taken as true together with inferences reasonably drawn
from them, do not entitle the claimant to the relief sought. Id. “Whether the dismissal
standard is satisfied depends ‘solely on the pleading of the cause of action.’” City of
Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (quoting Tex. R. Civ. P. 91a.6). We
review any type of Rule 91a ruling de novo. Id.A cause of action lacks a basis in fact if no “reasonable person could believe
6
the facts pleaded.” Tex. R. Civ. P. 91a.1. The factual-plausibility standard is not
implicated here; UNTHSC’s position is that no set of facts exists that would waive its
immunity from suit.
7
When a Rule 91a motion challenges jurisdiction, we construe the pleadings
liberally in the plaintiff’s favor, looking to the pleader’s intent and accepting the
factual allegations as true, to determine whether the pleaded facts suffice to invoke a
waiver of immunity. Id. at 724–25; Edgefield Holdings, LLC v. Gilbert, No. 02-17-00359-
CV, 2018 WL 4495566, at *5 (Tex. App.—Fort Worth Sept. 20, 2018, no pet.) (mem.
op.). But if a petition’s allegations negate jurisdiction, the petition is incurably
defective, and we must dismiss the case with prejudice without affording an
opportunity to amend. Miranda, 133 S.W.3d at 226–27.
Analysis
General legal principles involving corpses. Several Texas cases have
addressed the rights possessed by—and causes of action available to—those left
behind to deal with their loved ones’ remains, with the supreme court most recently
opining on this subject in SCI Texas Funeral Services, Inc. v. Nelson, 540 S.W.3d
539 (Tex. 2018).
In that suit over a private funeral home’s allegedly negligent cremation of the
plaintiff’s mother’s remains, the supreme court discussed the unique legal status of
deceased bodies. Id. at 545. “Though it has long been established under the common
law that ‘a dead body is not the subject of property,’ we have recognized that next of
kin generally have a right to possess the body and control the burial, a right we first
called a quasi-property right more than 80 years ago.” Id. at 545 (quoting Evanston Ins.
8
Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 383 (Tex. 2012)). In Evanston itself, the
supreme court noted:
Historically, the notion of a quasi-property right arose to facilitate
recovery for the negligent mishandling of a dead body. If the plaintiff
could show that his property right had been harmed, he would avoid the
burden of proving that his emotional distress was accompanied by
physical injury. . . . In reality, however, the primary concern of the right is not
the injury to the dead body itself, but whether the improper actions caused
emotional or physical pain or suffering to surviving family members.
The injury is seldom pecuniary; rather, damages are grounded in the
mental and physical injuries of survivors.
370 S.W.3d at 384 (emphasis added) (quoting Culpepper v. Pearl St. Bldg., Inc., 877 P.2d
877, 880 (Colo. 1994)). This reasoning led the Evanston court to conclude that “[t]he
common law . . . allows next of kin to sue for mental[-]anguish damages when acts are
performed on a decedent’s body or tissues without the next of kin’s consent in certain
circumstances.” Id. at 385.7
7
See also Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011) (upholding
mental-anguish finding in widow’s favor after husband’s body was disinterred and
moved to another grave without permission); Classen v. Benfer, 144 S.W.2d 633,
635 (Tex. App.—San Antonio 1940, writ dism’d judgm’t cor.) (upholding damages
award, including for mental anguish, where corpse was moved from its resting place
without family’s consent and was later misplaced); Restatement (Second) of Torts
§ 868 & cmt. a (Am. Law Inst. 1979) (discussing cause of action for interfering with
dead body and commenting that while the “technical basis of the cause of action is
the interference with the exclusive right of control of the body, which frequently has
been called by the courts a ‘property’ or a ‘quasi-property’ right,” that basis “does not,
however, fit very well into the category of property, since the body ordinarily cannot
be sold or transferred, has no utility[,] and can be used only for the one purpose of
interment or cremation”).
9
From the caselaw, we see that the law has a proper and understandable desire
to compensate for the natural anguish that loved ones experience when a corpse is
desecrated, mishandled, or lost. We see also that this compensation is available not
because of any property right in the corpse or for injury to the dead body itself, but
rather because of a corpse’s sui generis categorization—a status one might view, in a
sense, as existing between heaven and earth.
But in light of sovereign immunity, asserting such claims against a
governmental entity is altogether different, beginning with pleading requirements.
Pleading the use of tangible personal property as waiving immunity
under the Tort Claims Act. Unless Jose’s family has alleged facts showing that
UNTHSC harmed them by negligently using tangible personal property, sovereign
immunity will dictate this case’s outcome. Although the trial court denied UNTHSC’s
Rule 91a motion on the negligence claim and allowed limited discovery so that the
Gonzalezes could seek evidence and amend their petition as needed, at oral argument
they disclaimed the need for any discovery and asserted that their current petition
suffices—with the possible exception of perhaps needing to beef up their proximate-
cause allegations—to establish an immunity waiver.
But the third amended petition does not allege the negligent use of tangible
personal property; it does not mention that UNTHSC is a governmental entity, that
UNTHSC misused specific tangible personal property in some way, or even that their
claims implicate the Tort Claims Act. Cf., e.g., City of Raymondville v. Elizondo, No. 13-
10
21-00375-CV, 2022 WL 1669438, at *2 (Tex. App.—Corpus Christi–Edinburg May
26, 2022, no pet.) (mem. op.) (noting that plaintiffs’ petition alleged that city’s
immunity was waived by the “use or misuse of tangible property, namely surveying
equipment probes, shovels[,] and other equipment utilized to lay[ ]out burial spaces,
locate available spaces[,] and also to determine that depth of spaces and bury
remains”); Noah v. Univ. of Tex. Med. Branch at Galveston, 176 S.W.3d 350, 355 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (reciting that plaintiffs’ petition “alleged
that their injuries had been caused by either a condition of, or by UTMB’s use or
misuse of, ‘tangible personal property’—specifically, the remains of the plaintiffs’
relatives [that had been commingled with others and thus unable to be returned to
plaintiffs] and the tools and equipment used in the cremation process” (footnote
omitted)).
In their only references to UNTHSC, the Gonzalezes pleaded that
• “DEFENDANT, THE UNIVERSITY OF NORTH TEXAS HEALTH
SCIENCE CENTER, is a corporation doing business in the State of Texas.”
• “The Court has continuing jurisdiction over Defendants[8] because Defendants
are Texas residents. The Court has jurisdiction over the subject matter because
the damages are within the statutory jurisdictional limits of the Court.”
• “The body of Jesse Gonzalez was supposed to go to the Willed Body Program
at the University of North Texas [Health] Science Center. Instead, the Tarrant
County Medical Examiner’s Office sent the body of Jose Carlos Gonzalez,
The defendants at the time of this amendment were the Tarrant County
8
Medical Examiner; Brown, Owens and Brumley; Accucare; UNTHSC; DMA
Cremations; and Nizam Peerwani, M.D., P.A.
11
thinking it was Jesse Gonzalez, to the Willed Body Program, wherein it was
subsequently harvested for organs and then cremated.”
• “Through the process of exchanging written discovery with the other
Defendants, Plaintiffs have learned that the body of [Jose] was cremated by
DMA Cremations, LLC and not the Willed Body Program at [UNTHSC], as
originally believed.”
The entirety of the global negligence claim against UNTHSC and the other
defendants reads:
1. NEGLIGENCE AGAINST DEFENDANTS
Defendants had a duty to exercise ordinary care, that is, failing
to do that which a person of ordinary prudence would have done
under the same or similar circumstances or doing that which a person
of ordinary prudence would not have done under the same or similar
circumstances. Ordinary care means that degree of care that would be
used by a person of ordinary prudence under the same or similar
circumstances.
Defendants failed to use ordinary care in handling the
remains of the Decedent, Jose Carlos Gonzalez. This failure
proximately caused damages to the Plaintiffs, including mental
anguish.
Even after being put on notice of the jurisdictional issue through UNTHSC’s
Rule 91a motion and then amending their pleadings, the Gonzalezes’ latest petition
falls far short of alleging facts showing an immunity waiver. “If a plaintiff has been
provided a reasonable opportunity to amend after a governmental entity files its plea
to the jurisdiction, and the plaintiff’s amended pleading still does not allege facts that
would constitute a waiver of immunity, then the trial court should dismiss the
plaintiff’s action.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); see also Harris
12
Cnty. Appraisal Dist. v. Braun, 625 S.W.3d 622, 636 n.21 (Tex. App.—Houston [14th
Dist.] 2021, no pet.) (citing Sykes in dismissing plaintiff’s claims without allowing
opportunity to replead and noting that where plaintiff amends petition after
governmental entity files jurisdictional plea, plaintiff isn’t entitled to yet another
opportunity to replead). Particularly because the Gonzalezes have disavowed the need
for any jurisdiction-related discovery, we thus could reverse and render on this basis
alone.
But for thoroughness, we will examine the foundational question of whether
the Gonzalezes could allege facts to get around UNTHSC’s immunity. In answering
that question in the negative—meaning that another chance to amend would be
futile—we are persuaded by UNTHSC’s position that the Gonzalezes’ real complaint
is that intangible identifying information, not tangible personal property, was used or
misused and was the source of their harm.9
The Gonzalezes take issue with UNTHSC’s “gravamen” argument, accusing it
9
of an “attempted rewrite” of their allegations “in order to manufacture immunity.”
But the law instructs courts to look beyond how a party characterizes its cause of
action to find its “true nature.” B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276,
283 (Tex. 2017) (“The gravamen of a claim is its true nature, as opposed to what is
simply alleged or artfully pled, allowing courts to determine the rights and liabilities of
the involved parties.”); see also CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d
528, 534 (Tex. 2016) (instructing that in evaluating the type of claim, “we examine the
underlying nature and gravamen of the claim, rather than the way it is pleaded”); Univ.
of Tex. Health Sci. Ctr. at Hous. v. Dickerson, No. 14-13-00232-CV, 2014 WL 708521, at
*6 (Tex. App.—Houston [14th Dist.] Feb. 20, 2014, no pet.) (mem. op.) (“In
determining whether sovereign immunity has been waived, courts look to the real
substance of a plaintiff’s cause of action, not the plaintiff’s characterization of her
claims.”).
13
The Gonzalezes attempt to finesse this problem by arguing that they were
harmed by UNTHSC’s using organ-harvesting tools (tangible personal property) or by
UNTHSC’s misusing Jose’s body itself (tangible personal property) in harvesting his
organs, or both. But the Gonzalezes do not suggest that the process of harvesting Jose’s
organs was done negligently. They do not claim, for example, that UNTHSC
negligently used a hacksaw instead of a scalpel or that it negligently sliced a particular
organ in half.10 Indeed, at oral argument, the Gonzalezes explicitly disavowed a claim
of negligently performed organ harvesting or dissection and proposed that
UNTHSC’s negligence consisted, rather, of doing anything to Jose’s corpse at all.
The gravamen of the Gonzalezes’ claim is that information concerning
Jose’s and Jesse’s identifications was mishandled. So how did UNTHSC end up
with Jose’s body in the first place? The answer is clear: his body was mistaken for
Jesse’s at some point—it was misidentified because of faulty information.
And Texas law is equally clear that information, even when recorded on
something tangible such as paper, is intangible and thus does not fall under the Tort
Claims Act’s immunity waiver. See, e.g., Univ. of Tex. Med. Branch v. York, 871 S.W.2d
175, 176, 179 (Tex. 1994) (holding that information in medical records is not tangible
personal property within the meaning of the Tort Claims Act; “the fact that
information is recorded in writing does not render the information tangible
With these examples, we don’t mean to suggest that such claims could waive
10
immunity.
14
property”); Zawislak v. Tex. Med. Bd., No. 03-17-00523-CV, 2019 WL 321993, at
*2 (Tex. App.—Austin Jan. 25, 2019, pet. denied) (mem. op.) (affirming sovereign-
immunity bar where a doctor, who was publicly reprimanded by governing state
entity, sued medical board for negligently using expert report and deposition in
administrative proceeding and noting that “[a]lthough the paper (or other format) on
which [the expert’s] report and deposition testimony was recorded is tangible, [the
doctor] does not allege that he was injured by the paper” but rather by information in
the paper); Seamans v. Harris Cnty. Hosp. Dist., 934 S.W.2d 393, 395 (Tex. App.—
Houston [14th Dist.] 1996, no writ) (holding no immunity waiver where information
about body’s donation was not timely relayed, making the anatomical gift worthless,
because use of county hospital’s gurney, morgue refrigeration units, transport vehicle,
etc., was “merely incidental”: “Seamans’ body would have been used for its intended
purpose if Ben Taub had successfully transmitted information regarding the donation to
the medical school”).
Courts have applied this information-is-intangible principle in circumstances
closely resembling this case, in particular City of Raymondville, supra, and Dominguez v.
Bexar County Medical Examiner’s Office, No. 10-06-00109-CV, 2007 WL 613792 (Tex.
App.—Waco Feb. 28, 2007, no pet.) (mem. op.). Each case demonstrates the
insurmountable immunity bar that the Gonzalezes face here.
In City of Raymondville, a city employee gave a funeral home inaccurate plot
measurements; as a result, the deceased was buried in the wrong location and had to
15
be disinterred and moved to the correct cemetery plot. 2022 WL 1669438, at *1, *5.
The deceased’s family members sued and alleged that immunity was waived by the use
of tangible personal property in the form of the equipment used to dig the grave and
move the remains. Id. at *2. The city challenged the trial court’s jurisdiction by
arguing, as one of two bases, that the use or misuse of information—the wrong
measurements—does not equate to use or misuse of tangible property. Id.
The appellate court reversed the trial court’s denial of the City’s combined plea
to the jurisdiction and summary-judgment motion, id. at *3, *6, and rendered a
judgment of dismissal, id. at *6. Looking to the gravamen of the family’s claims, the
court held that “the use or misuse of information was the cause of appellees’ injuries,
not the use or misuse of tangible personal property.” Id. at *5. That is, if the city
employee had not passed along incorrect information, “Decedent’s remains would not
have been interred into the wrong plot and likewise would not have needed to be
moved.” Id. The “substance” of the family’s complaints involved the “misuse and
transmission of information,” and “the information did not become tangible personal
property by [the city’s] recording the information in writing.” Id.
Dominguez similarly involved a family’s attempt to connect the use of tangible
personal property to their mental anguish, which in that case occurred when their
loved one’s burned remains were incorrectly identified.11 2007 WL 613792, at *1. The
11
Although the opinion is light on facts, it appears that the deceased in
question, Jermaine Ramirez, and another person died together in a fire. Dominguez,
16
plaintiffs contended that tangible personal property in the form of charred driver’s
licenses and the burned corpses themselves were “misused.” Id. at *2, *3. Affirming
the trial court’s grant of the Bexar County Medical Examiner’s jurisdictional plea, the
appellate court agreed with the county that “its actions constituted the use of the
information on the driver’s licenses, not the use of the driver’s-license certificates as
tangible personal property,” citing cases holding that information is an abstract
concept that lacks corporeal, physical, or palpable qualities. Id. at *2 (citing Tex. Dep’t
of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001), and York, 871 S.W.2d at 179).
As for the corpses themselves, Dominguez contended—as do the Gonzalezes
here—that “human remains are property.” Id. at *3 (quoting Dominguez’s appellate
brief). But the non-immunity cases on which Dominguez relied, although recognizing
that heirs have the right to select how remains are to be laid to rest, “do not stand for
the proposition that the corpse constitutes personal property concerning which a
party may sue the State for money damages.” Id.
The Gonzalezes have not attempted to distinguish City of Raymondville or
Dominguez, whose reasoning we find sound. The gravamen of the Gonzalezes’ claim is
a use or misuse of information, not of tangible personal property, and that is a
jurisdictional chasm that cannot be bridged through repleading. See Tex. A&M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (holding that appellate court erred by
2007 WL 613792, at *2 (“Dominguez argues that the County used the decedents’
driver’s licenses and corpses as tangible personal property.”).
17
remanding for repleading because “Koseoglu’s pleading defects cannot be cured, and
he has made no suggestion as to how to cure the jurisdictional defect”). The fact is
that Jose’s and Jesse’s bodies would not have been confused but for the M.E.’s
“thinking,” as the Gonzalezes pleaded, that it was sending Jesse’s body to UNTHSC.
That misidentification, not UNTHSC’s organ harvesting, caused the Gonzalezes’
mental anguish.12 We must construe sovereign-immunity waivers narrowly, and these
facts simply do not fall within the Tort Claims Act’s waiver.
Conclusion
Having sustained UNTHSC’s sole issue, we reverse the trial court’s denial of
UNTHSC’s Rule 91a motion on the Gonzalezes’ negligence claims and render
judgment that those claims be dismissed with prejudice.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: April 13, 2023
12
That is true even if UNTHSC failed to confirm whose body it had received, a
theoretical duty that the Gonzalezes have not raised.
18