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									                             No. ________


           IN THE SUPREME COURT OF TEXAS
                           AUSTIN, TEXAS
        ------------------------------------------------------------

           HARRIS COUNTY HOSPITAL DISTRICT,
                                  Petitioner

                                    V.

           TOMBALL REGIONAL HOSPITAL,
                                Respondent

           ____________________________________

                 PETITION FOR REVIEW
           ___________________________________

   Petition Seeks Review of Decision issued by Court of Appeals
for the Fourteenth District of Texas at Houston (No. 14-04-263-CV)
     _______________________________________________

                          MIKE STAFFORD
                          HARRIS COUNTY ATTORNEY(#99999939)
                          By: Sandra D. Hachem
                          State Bar No. 088667060
                          Sr. Assistant County Attorney
                          P. O. Box 20130
                          Houston, Texas 77225-0130
                          Telephone: (713) 363-2384
                          Facsimile: (713) 363-2396

                          ATTORNEY FOR PETITIONER
                          HARRIS COUNTY HOSPITAL DISTRICT
                      IDENTITY OF ALL PARTIES AND COUNSEL

ALL PARTIES TO THE TRIAL COURT’S ORDER:

         Plaintiff: Tomball Hospital Authority, organized and operating as Tomball
         Regional Hospital

         Defendant: Harris County Hospital District

THE NAMES AND ADDRESSES OF ALL TRIAL COUNSEL:

Trial Counsel for all Plaintiffs:                              Trial Counsel for Defendant:
Randall L. Payne                                               MIKE STAFFORD
Sullins, Johnston, Rohrbach & Magers                           HARRIS COUNTY ATTORNEY
2200 Phoenix Tower                                             By: Glen Van Slyke
3200 Southwest Freeway                                         Assistant County Attorney
Houston, Texas 77027                                           2525 Holly Hall
                                                               Houston, Texas 77002

THE NAMES AND ADDRESSES OF ALL APPELLATE COUNSEL:

Appellate Counsel for Plaintiff:                               Appellate Counsel for Defendant
Margaret A. Pollard, 1 Lead Counsel                            MIKE STAFFORD
Sullins, Johnston, Rohrbach & Magers                           HARRIS COUNTY ATTORNEY
2200 Phoenix Tower                                             By: Sandra D. Hachem
3200 Southwest Freeway                                         Sr. Assistant County Attorney
Houston, Texas 77027                                           P. O. Box 20130
                                                               Houston, Texas 77225-0130
Randall L. Payne
Sullins, Johnston, Rohrbach & Magers
2200 Phoenix Tower
3200 Southwest Freeway
Houston, Texas 77027




1
 Ms. Pollard filed Appellant’s notice of appeal which indicated her designation as their lead counsel for the appeal.
CR 606; See TEX. R. APP. P. 6.1(a). Randall L. Payne appeared on behalf of Appellee by filing Appellee’s brief,
but did not file a notice designating him as the appellee’s new lead counsel. See TEX. R. APP. P. 6.1 (c).


                                                          ii
                                           TABLE OF CONTENTS

                                                                                                                      PAGE

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS......................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

STATEMENT OF THE CASE.................................................................................vi

STATEMENT OF JURISDICTION....................................................................... vii

ISSUE PRESENTED............................................................................................. viii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................1

ARGUMENT AND AUTHORITIES........................................................................3

         ISSUE NO. 1: The appellate court’s opinion states that the “sue and
         be sued” language in section 281.056(a) of the Health & Safety Code
         waived the Harris County Hospital District’s immunity from suit, and,
         on this basis, reversed the trial court’s order granting the District’s
         plea to jurisdiction. Did the appellate court err in concluding that the
         words “sue and be sued” in section 281.056(a) of the Health & Safety
         Code waived the Harris County Hospital District’s immunity from
         suit? .................................................................................................................3

PRAYER FOR RELIEF ..........................................................................................14

CERTIFICATE OF SERVICE ................................................................................14

APPENDIX ..................................................................................................(attached)




                                                              iii
                                     INDEX OF AUTHORITIES

CASES                                                                                                       PAGE

City of San Antonio v. Butler, 131 S.W.3d 170 (Tex.
 App. – San Antonio 2004, pet. filed) ......................................................................4

City of Mesquite v. Pkg. Contracting, Inc., 148 S.W.3d 209
 (Tex. App. – Dallas 2004, pet. filed) ......................................................................4

Freedman v. University of Houston, 110 S.W.3d 504 (Tex. App. –
 Housotn [1st Dist.] 2003, no pet.)...........................................................................11

Harris County Hospital Dist. v. Carillo, No. 01-99-00204-CV,
 1999 WL 826227, (Tex. App. – Houston [1st Dist.] 1996, no pet.).......................10

Hirczy de Mino v. University of Houston, No. 03-03-00311-CV,
 2004 WL 2296131 (Tex. App. – Austin 2004, pet. filed) .......................................4

Missouri Pacific R.R. Co. v. Brownsville Nav. Dist., 453 S.W.2d 812
 (Tex. 1970)...........................................................................................4, 5, 6, 12, 13

Satterfield & Pontikes const., Inc. v. Irving Indep. School Dist.,
 123 S.W.3d 63 (Tex. App. – Dallas 2003, pet. filed) ........................................4, 11

Seamans v. Harris County Hospital District, 934 S.W.2d 393 (Tex. App.
 -- Houston [14th Dist.] 1996, no writ) ....................................................................10

Tomball Regional Hospital v. Harris County Hosp. Dist.,
 No. 14-04-00263-CV (Tex. App. – Houston [14th Dist.] 2005, pet filed)...............1

Travis County v. Pelzel & Assoc. Inc., 77 S.W.3d 246 (Tex. 2002) .........................7

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)...........8, 9, 13, 14

RULES

TEX. R. APP. P. 56.1...........................................................................................5, 14




                                                         iv
STATUTES

TEX. GOV’T CODE ANN. §22.001 (Vernon 1988)............................................5, 8

TEX. HEALTH & SAFETY CODE ANN. §281.056 (Vernon 2001) and
 (Vernon Supp. 2004-05) ......................................................................................5, 8

TEX. GOV’T CODE ANN. §311.034.....................................................................10

OTHER

Act of April 29, 1955, 54th Leg., R.S., ch. 257 §5, 1955 Tex. Gen.
 Laws 715 ................................................................................................................11

Act of May 25, 1967, 60th Leg., R.S., ch. 477, 1967 Tex. Gen. Laws 1087 ...........12

Act of May 18, 1989, 71st Leg., R.S. ch. 678 §1 & §14, 1989 Tex. Gen. Laws
 2230........................................................................................................................12

Act of June 2, 2003, 78th Leg., R.S., ch. 3.08, 2003 Tex. Gen. Laws 847 ..........9, 12




                                                              v
                           STATEMENT OF THE CASE

Nature of the Case:         Tomball Regional Hospital appealed order which
                            dismissed its suit against the Harris County Hospital
                            District for reimbursement of medical care services it
                            provided to patients whom it alleged should have been
                            cared for by the Harris County Hospital District.
                            Clerk’s Record [hereinafter “CR”] 605 (notice of
                            appeal) and CR 28 (second original petition); CR 589
                            (order).

Trial Court:                The Honorable Elizabeth Ray of the 165th Judicial
                            District Court, Harris County.

Trial Court Disposition:    On December 8, 2003, the trial court signed an order
                            which granted the Harris County Hospital District’s
                            plea to jurisdiction and dismissed Tomball Regional
                            Hospital’s suit. CR 589.

Appellate Parties:          Tomball Regional Hospital appealed as the only
                            appellant. CR 605. Harris County Hospital District
                            was the only appellee.

Court of Appeals:           Fourteenth Court of Appeals, Houston District Panel:
                            Justices Anderson, Hudson and Frost; Justice J.
                            Harvey Hudson was the author of the decision.

Citation:                   Tomball Regional Hospital v. Harris County Hospital
                            District, No. 14-04-00263-CV (Tex. App. – Houston
                            [14th Dist.] July 28, 2005) (2005 WL 1771606).

Appellate Court
Disposition:                The appellate court reversed the trial court’s judgment
                            on 7/28/05; denied motion for rehearing on 10/6/05.




                                        vi
                       STATEMENT OF JURISDICTION
      This court has jurisdiction to consider this petition under TEX. GOV’T
CODE ANN. §22.001(a) (2) (3) and (6) (Vernon 1988). See also TEX. R. APP.P.
56.1(a)(2)(3) & (5).   This Court has jurisdiction under subpart (2) of section
22.001(a)(1), because the court of appeals in this case disagreed with other courts
of appeals concerning whether the phrase “sue and be sued” constitutes a waiver of
immunity from suit. TEX. R. APP. P. 56.1(a)(2); in particular compare Tomball
Hospital Authority v. Harris County Hospital District, No. 14-04-00263-CV, 2005
WL 1771606 *4, (Tex. App. – Houston [14th Dist.] 2005, pet. filed) (held
§281.056(a) of Health & Safety Code which stated Harris County Hospital
District’s board of managers may “sue and be sued” waived immunity with suit)
with Satterfield & Pontikes Construction Corp. v. Irving Indep. Sch. Dist., 123
S.W.3d 63, 68 (Tex. App. – Dallas 2003, pet. filed and assigned no. 04-0175) (held
§11.151(a) of the Education Code which stated trustees of an independent school
district may “sue and be sued” did not waive immunity from suit); City of
Greenvlle v. Reeves, 165 S.W.3d 920 (Tex. App. – Dallas 2005, pet. filed and
docketed under no. 05-0647) (provision of city charter stating city could “sue and
be sued” did not waive city’s sovereign immunity and simply addressed city’s
capacity to sue and be sued in event immunity waived) and City of San Antonio v.
Butler, 131 S.W.3d 170 (Tex. App. – San Antonio 2004, pet filed under no. 04-
0356) (city charter which allowed city to “sue and be sued” did not waive city’s
governmental immunity under Tort Claims Act).         In addition, the holding in
Tomball that the Harris County Hospital District did not have immunity from suit
was inconsistent with prior opinions of both the First and Fourteenth Courts of
Appeals. See Harris County Hospital District v. Carillo, No. 01-99-00204-CV,
1999 WL 826227 (Tex. App. – Houston [1st Dist.] 1999, no pet.) (not designated
for publication) (held Harris County Hospital District was “immune from suit.”);

                                        vii
Seamans v. Harris County Hospital District, 934 S.W.2d 393, 396 (Tex. App. –
Houston [14th Dist.] 1996, no writ) (stated appellees Harris County Hospital
District and Ben Taub General Hospital immune from suit under doctrine of
sovereign immunity.).
      This court also has jurisdiction under subpart (3) of section 22.001(a)(1),
because the court of appeals construed a statute, Section 281.056(a) of the Health
& Safety Code, particularly with respect to the language which states the Harris
County Hospital District’s board of managers may “sue and be sued.”          TEX. R.
APP. P. 56.1(a)(3).
      In addition, the uncertainty whether the Harris County Hospital District and
other similar governmental entities with “sue and be sued” provisions are immune
from suit, together with the possible effects on the finances of state entities, make
this an issue important to the jurisprudence of the state. TEX. GOV’T CODE
ANN. §22.001(a)(6) (Vernon 2004); TEX. R. APP. P. 56.1(a)(5).
                               ISSUE PRESENTED

      ISSUE NO. 1:       The appellate court’s opinion states that the “sue and be

sued” language in section 281.056(a) of the Health & Safety Code waived the

Harris County Hospital District’s immunity from suit, and, on this basis, reversed

the trial court’s order granting the District’s plea to jurisdiction. Did the appellate

court err in concluding that the words “sue and be sued” in section 281.056(a) of

the Health & Safety Code waived the Harris County Hospital District’s immunity

from suit?




                                          viii
                                   No. ________


                 IN THE SUPREME COURT OF TEXAS
                                 AUSTIN, TEXAS
              ------------------------------------------------------------

                 HARRIS COUNTY HOSPITAL DISTRICT,
                                        Petitioner

                                          V.

                 TOMBALL REGIONAL HOSPITAL,
                                           Respondent
                 ____________________________________

                       PETITION FOR REVIEW
                 ___________________________________

     Orders at Issue

Judgment of Trial Court on which Appellate Relief Sought
(Order signed 12/8/03) (3rd CR 589)………………………….…….. Tab 1

Opinion and Judgment of Court of Appeals
Tomball Regional Hospital v. Harris County Hospital District,
No. 14-04-00263-CV (Tex. App. – Houston [14th Dist.]
July 28, 2005)…………………………………………………………Tab 2

     Text of Statute Central to Case:

TEX. HEALTH & SAFETY CODE ANN. 281.056……..………….Tab 3

     Other

Summary of Petitions for Review Pending Before Supreme
Court on “Sue and be Sued” Type Language…………………………Tab 4

Session Law History TEX. HEALTH & SAFETY CODE §281.056…Tab 5
                                         No. ________

                    ------------------------------------------------------------
                       IN THE SUPREME COURT OF TEXAS
                    ------------------------------------------------------------

                     HARRIS COUNTY HOSPITAL DISTRICT
                                              Petitioner

                                                V.

                     TOMBALL REGIONAL HOSPITAL
                                            Respondent

                       ____________________________________

                             PETITION FOR REVIEW
                       ___________________________________

TO THE SUPREME COURT OF TEXAS:

       Petitioner, Harris County Hospital District, [hereinafter “Hospital District”]

submits this petition for review of the appellate decision in Tomball Regional Hospital v.

Harris County Hospital District, No. 14-04-00263-CV (Tex. App. – Houston [14th Dist.]

July 28, 2005) [hereinafter “Op.”].

                                STATEMENT OF FACTS

       The statement of facts recited in the court of appeals’ opinion provides accurate

statements about the nature of this case.

                          SUMMARY OF THE ARGUMENT

       Currently about 20 petitions for review are pending before this court on the

important issue of whether the words “sue and be sued” (or similar language) establish

proof of waiver of governmental immunity from suit whenever it appears in a law that



                                                 1
relates to a government. See Appendix, Tab 4. This is another one of those cases. The

appellate court’s opinion in this case states that it is bound by precedent of this court in

concluding that the words “sue and be sued” in section 281.056(a) of the Health & Safety

Code is a waiver of the Hospital District’s governmental immunity from suit. This

petition is filed to request that this court review that conclusion, because it appears to be

in error and there are appellate courts in this State that have concluded this court’s

precedent does not result in an automatic finding of waiver of governmental immunity

whenever “sue and be sued” language appears.

       In this case, examination of section 281.056(a) of the Health & Safety Code as

well as the context of its enactment indicates the legislature did not clearly and

unambiguously waive the Hospital District’s sovereign immunity from suit with its use of

the words “sue and be sued.” The words “sue and be sued” in section 281.056 of the

Health & Safety Code were inserted by the legislature in 1955 to clarify the capacity to

which the board of managers could act. There was no express reference to the Hospital

District as an entity that could be sued, no indication of the legislature’s intent to waive

its governmental immunity for any particular type of claim for damages, and no provision

for damage caps to protect the Hospital District’s limited resources available for its

operation. Also, after this enactment was in place, and before the present case, both the

appellate courts in the district where the Hospital District is located acknowledged the

Hospital District had immunity from suit.

       The appellate court’s decision in this case acknowledged that there have been

appellate decisions that do not single out of the words “sue and be sued” as the test of


                                             2
waiver of governmental immunity from suit, and those courts indicate they do not believe

that is the position of this court. Nevertheless, because many more appellate courts have

decided they are restrained to follow what they believe to be the precedent of this court,

the appellate court in this case decided that it would follow that majority and hold that the

four words “sue and be sued” in section 281.056(a) of the Health & Safety Code

conclusively evidence legislative intent to waive the Hospital District’s governmental

immunity from suit.

       Because this is a question that appellate courts have disagreement, it involves

construction of a statute which is like other statutes of governments in this state that are

currently at issue in petitions already pending before this court, and because this issue is

important to the development of jurisprudence in this state to which a majority of

appellate courts appear to be in error, this court has jurisdiction to consider this petition;

and it is requested that this court grant this petition to correct the error at issue.

                              ARGUMENTS AND AUTHORITIES

ISSUE NO. 1: The appellate court’s opinion states that the “sue and be sued”
language in section 281.056(a) of the Health & Safety Code waived the Harris
County Hospital District’s immunity from suit, and, on this basis, reversed the trial
court’s order granting the District’s plea to jurisdiction. Did the appellate court err
in concluding that the words “sue and be sued” in section 281.056(a) of the Health &
Safety Code waived the Harris County Hospital District’s immunity from suit?

       The appellate court’s opinion in this case reverses the trial court’s decision to

grant the Hospital District’s plea to jurisdiction, because the opinion concludes that the

phrase “sue and be sued” included in section 281.056(a) of the Health & Safety Code, by

itself, established the legislature’s intent to waive the Hospital District’s governmental



                                                3
immunity from suit, and, thus, precluded the Hospital District’s jurisdictional defense of

governmental immunity. Op. at pp. 9-10. As acknowledged in that opinion, however,

not all courts agree with the conclusion that the use of the four words “sue and be sued”

(or similar words) conclusively establishes legislative intent to waive governmental

immunity from suit. See Op. at p. 8, n. 11. In fact, there are currently about 20 petitions

pending before this court where that very issue of statutory construction is being posed,

and some of those petitions involve requests for review of appellate court decisions that

conclude, contrary to the decision in this case, that the phrase “sue and be sued” does not

conclusively establish waiver of governmental immunity from suit. See Appendix, Tab 4

(Summary of Petitions for Review Pending before Supreme Court on Issue of “Sue and

be Sued” Type Language); See, e.g. Satterfield & Pontikes Const.,Inc. v. Irving Indep.

School Dist., 123 S.W.2d 3d 63 (Tex. App. –Dallas 2003, pet. filed) (Education Code

provision that trustees of school district court may “sue and be sued” did not waive

district’s immunity from suit); City of Mesquite v. Pkg. Contracting, Inc., 148 S.W.3d

209 (Tex. App. – Dallas 2004, pet filed) (sue and be sued language in city charter did not

result in waiver of city’s sovereign immunity); City of San Antonio v. Butler, 131 S.W.3d

170 (Tex. App. – San Antonio 2004, pet filed) (sue and be sued language in city charter

did not waiver governmental immunity from suit); Hirczy de Mino v. University of

Houston, No. 03-03-00311-CV, 2004 WL 2296131 *2 (Tex. App. – Austin 2004, pet

filed) (sue and be sued language in Education Code did not waive University of

Houston’s immunity from suit).

       Because the appellate court’s decision in this case involves construction of a


                                            4
statute, section 281.056(a) of the Health & Safety Code, and conflicts with decisions

of appellate courts in this State which have petitions pending before this court on

the material issue involved in this case, it is urged that this court accept jurisdiction

to consider this petition for review under TEX. R. APP. P. 56.1(a)(2) and (3). See

also TEX. GOV’T CODE ANN. §22.001(a)(2) and (3) (Vernon 1988). Moreover, it is

further urged that this court consider granting petition for review of this case,

under TEX. R. APP. P. 56.(a)(5), because the opinion of the appellate court in this

case, as other opinions which the appellate court’s opinion recognized as the

majority view, appear to have committed an error of law in concluding that this

court’s precedent supports the proposition that “sue and be sued” language is

conclusive proof of the legislature’s intent to waive immunity from suit. See also

TEX. GOV’T CODE ANN. §22.001(a) (6) (Vernon 1988).

       Essentially, in this case, the appellate court concluded that this court’s precedent,

starting with a 1970 decision, Missouri Pacific R.R. Co. v. Brownsville Navigation

District, 453 S.W.2d 812, 813 (Tex. 1970), dictates that inclusion of the language “sue

and be sued” conclusively establishes the legislature’s intent to waive a government’s

immunity from suit. Op. at pp. 7-9. This conclusion appears to be a misreading of this

court’s precedent. The appellate court’s opinion in this case correctly acknowledged that

this court’s 1970 decision, Missouri Pacific R.R. Co., held that that a general statute with

“sue and be sued” language provided a waiver of the Navigation District’s immunity

from suit. Op. at p. 7 (citing     Missouri Pacific R.R. Co., 453 S.W.2d at p. 813).

Nonetheless, the appellate court’s opinion is incorrect in its suggestion that this court


                                             5
endorsed the proposition in that opinion, or in any opinion thereafter, that the phrase “sue

and be sued” conclusively establishes waiver of governmental immunity from suit.

Looking at this court’s opinion in Missouri Pacific R.R. Co., it is apparent this court was

looking more than just at the words “sue and be sued.”

       This court’s opinion began its statutory construction with respect to the Navigation

District by examining its entire statutory scheme and history, and this court then

expressly acknowledged that the Navigation District continued to operate under the terms

of its original enabling statute of 1925 which provided as follows:

       All navigation districts established under this Act may, by and through the
       navigation and canal commissioners, sue and be sued in all courts of this
       State in the name of such navigation district and all courts of this State shall
       take judicial notice of the establishment of all districts.

453 S.W.2d at p. 813.

       Following the recited portion above, this court stated:

       District points out that there are other statutes in which the Legislature’s
       intention to give consent to suit has been more clearly expressed. . . . On
       the other hand suits against counties have been held to be authorized by
       statutes that simply require the filing of a claim before institution of suit,
       provide for the inhabitants of the county to serve as jurors or witnesses, and
       prohibit the issuance of an execution on a judgment against the county.
       Articles 1572 et seq.; Hamilton County v. Garrett, 62 Tex. 602. In our
       opinion Article 8263 his quite plain and gives general consent for District
       to be sued in the courts of Texas in the same manner as other defendants.

Id. As indicated, this court’s opinion did not just focus solely on the words “sue and be

sued.” The opinion looked at the legislative history of the statute, case law and the entire

context of the statement where the words “sue and be sued” appeared. Considering all of

this, this court concluded that because the statute indicated it authorized the Navigation



                                              6
District to be sued in the courts of Texas in the same manner as other defendants, the

legislature made a plain expression of consent for suit. Such conclusion does not support

the proposition that the mere words “sue and be sued” controlled this court’s decision.

       Moreover, to the extent that it could be argued that the Missouri Pacific R.R. Co.

supports the proposition that “sue and be sued” language alone establishes waiver of

sovereign immunity from suit, subsequent cases of this court indicate otherwise. See City

of Roman Forest v. Stockman, 141 S.W.3d 805, 812 (Tex. App. – Beaumont 2004, no

pet.). In particular, in Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 250 (Tex.

2002) commenting on the words “sue and be sued” that appeared in an earlier statute

regarding counties, this court stated those words only “arguably” waived immunity from

suit. As such, in Pelzel, this court overruled Missouri Pacific R.R.Co. to the extent it

could have been construed to hold “sue and be sued” language provides conclusive proof

of waiver of sovereign immunity from suit. Moreover, and importantly, this court held in

Pelzel, contrary to the position suggested in dicta in Missouri Pacific R.R. Co., that

section 89.004 of the Local Government Code, which required the filing of a claim before

institution of suit against the county, was not an expression of waiver of the county’s

immunity from suit. 77 S.W.3d 251. Accordingly, this court clarified that the mere fact

that a statute alludes to the possibility of suit against a government does not, by itself,

establish the legislature’s intent to waive immunity from suit. As such, the fact that a

statute, like section 281.056 of the Health & Safety & Safety Code, alludes to the

possibility of suit against the Hospital District by giving the Board of Managers authority

to be sued is not, under Pelzel, conclusive proof of legislative intent to waive immunity.


                                             7
       Moreover, recently in 2003, in Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 697 (Tex. 2003), this court made deliberate effort to specifically articulate how

courts are to construe statutes in deciding whether a waiver of governmental immunity

from suit was intended. Specifically, this court stated in Taylor that it has only been on

“rare occasions” that this court has found waiver of sovereign immunity absent an

express statement in the statute that the government’s “sovereign immunity to suit and

liability is waived.” (italicized emphasis added). When that is not clearly expressed in

the statute, this court acknowledged at least four interpretive aids or principles that it

considers in determining whether the legislature actually intended to waive governmental

immunity in a statute. Id. at 697-98 (emphasis added). The first interpretative aid

considers whether the statute waived immunity “without doubt.” Id. at p. 697. The

second principle recognizes that ambiguities are generally resolved in favor of retaining

immunity. Id. The third principle acknowledges that if the scheme requires the State to

be joined in a particular lawsuit for which immunity otherwise attaches that can establish

waiver. Id. The fourth principle recognizes that when consent to suit is allowed against a

government, it should be considered that the legislature often enacts simultaneous

measures to insulate public resources. Id. at p. 698.

       The statute at issue in this case, section 281.056 of the Health & Safety Code, did

not expressly provide that sovereign immunity from suit is waived, therefore, based on

this court’s opinion in Taylor, consideration of the four principles this court outlined in

that case should have been considered.           See TEX. HEALTH & SAFETY CODE




                                             8
§281.056 (Vernon 2001) and (Vernon Supp. 2004-2005).1 Nonetheless, the appellate

court’s opinion in this case did not. Instead, on page 9 of its opinion, it is apparent the

appellate court decided it was not necessary focusing on the following statement made in

Taylor: “we have little difficulty recognizing the Legislature’ intent to waive immunity

from suit when a statute provides that a state entity may be sued. . . .” Op. at p. 9 (citing

Taylor, 106 S.W.3d at 696-97).

        The appellate court’s assessment that this single statement in Taylor supported the

position that “sue and be sued” language in a statute is conclusive evidence of a waiver of

immunity from suit, without consideration of any of the interpretative aids this court

found appropriate in that opinion, is in error. First, at the end of the sentence in Taylor

which the appellate court’s opinion cited, this court included a footnote providing several

examples of cases in which the statute authorizing suit was construed a waiver, and none

of those examples included a case where the mere words “sue and be sued” were

recognized to conclusively evidence legislative intent to waive immunity from suit.

Moreover, taking this statement in Taylor alone without considering this court’s careful

discussion following it essentially takes this court’s statement out of context. Most

significantly, however, the failure of the appellate below to consider any of the four

principles that this court announced in Taylor was error, because when considered in the

context of section 281.056 of the Health & Safety Code, these principles indicate the

legislature did not waive the Hospital District’s immunity from suit.

1
 After suit was filed, the legislature made one amendment to subpart (a) of section 281.056 of the Health & Safety
Code in 2003 which appears in the 2004/2005 supplement to the Health & Safety Code which became effective
September 1, 2003. Clerk’s Record 2; Act of June 2, 2003, 78th Leg., R.S., ch. 3.08, 2003 Tex. Gen. Laws 847, 855


                                                        9
       In the first principle outlined in Taylor, this court stated that for a statute to waive

immunity it must be so “without doubt.” 106 S.W.3d at p. 697.          This “without doubt”

standard is consistent with the clear and unambiguous standard the legislature codified

for construing waivers of sovereign immunity in the Code Construction Act. TEX.

GOV’T CODE ANN. §311.034 (Vernon 2005). Specifically, the legislature provided:

“In order to preserve the legislature’s intent in managing state fiscal matters through the

appropriations process, a statute shall not be construed as a waiver of sovereign immunity

unless the waiver is effected by clear and unambiguous language.” Id. The appellate

court’s opinion in this case suggests that a waiver of sovereign immunity must be

construed with respect to the Hospital District, because subsection (a) of section

281.056(a) of the Health & Safety Code provides: “[t]he board may sue and be sued.”

Op. at p. 7. Nonetheless, this can hardly be construed “without doubt” when it only

mentions the board’s authority and makes no direct mention of the Hospital District’s

sovereign immunity. Moreover, it certainly had not been previously recognized “without

doubt,” because both appellate courts in the district where the Hospital District is located

recognized in prior cases that the Hospital District had immunity from suit. See Seamans

v. Harris County Hospital District, 934 S.W.2d 393, 396 (Tex. App. – Houston [14th

Dist.] 1996, no writ) (“The appellees [Harris County Hospital District and Ben Taub

General Hospital] are immune from suit under both the doctrine of sovereign immunity

and the Anatomical Gift Act.”) (emphasis added); Harris County Hospital District v.

Carillo, No. 01-99-00204-CV, 1999 WL 826227 (Tex. App. – Houston [1st Dist.] 1999,


(codified at TEX. HEALTH & SAFETY CODE §281.056(a)).


                                               10
no pet.) (not designated for publication) (held Harris County Hospital District was

“immune from suit.”).

       Also, it is not clearly recognized that a legislative enactment that references a

board as the members who may “sue or be sued” shows a clear expression of waiver of

sovereign immunity from suit. In Freedman v. University of Houston, 110 S.W.3d 504,

508 (Tex. App. – Houston [1st Dist.] 2003, no pet.), the First Court of Appeals in Houston

construed a provision in the Education Code which authorized the Board of Regents to

sue and be sued as to merely clarify that the Board had the capacity to litigate and did not

express a clear and unambiguous waiver of immunity.            Similarly, in Satterfield &

Pontikes Const.,Inc. v. Irving Indep. School Dist., 123 S.W.2d 3d 63 (Tex. App. –Dallas

2003, pet. filed), the Dallas Court of Appeals concluded that an Education Code

provision that allowed the trustees of school district court to “sue and be sued” was not an

expression of waiver of the school district’s immunity from suit. Because appellate

courts have not found language, similar to that in section 281.056 of the Health & Safety

Code, to be a clear expression of waiver of immunity from suit, it cannot be said then that

this language is “without doubt” a waiver of governmental immunity from suit.

       Moreover, the appellate court’s opinion fails to consider the legislative history of

section 281.056. The sentence the appellate court cites with the “sue and be sued”

language became part of the law with respect to the Hospital District in 1955, and the

legislature made no substantive change to this law in subsequent amendments, including

its codification in 1989. Act of April 29, 1955, 54th Leg., R.S., ch. 257 §5, 1955 Tex.

Gen. Laws 715, 719 [hereinafter Act of 1955”] (“The Board of Managers shall have the


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power and authority to sue and be sued and to promulgate rules and regulations for the

operation of the hospital or hospital system.”), amended by Act of May 25, 1967, 60th

Leg., R.S., ch. 477, 1967 Tex. Gen. Laws 1087 (no amendment to provision in section 5),

amended by Act May 18, 1989, 71st Leg., R.S. ch. 678 §1 & §14, 1989 Tex. Gen. Laws

2230 (indicated in section 14 of ch. 678 no intent of substantive change), amended by Act

of June 2, 2003, 78th Leg., ch. 204 §3.08, 2003 Tex. Gen. Laws 847, 855 (amends subpart

(a) of section 281.056(a)). Importantly, at the time that the legislature added the “sue and

be sued” language in 1955 with respect to the Board of Managers, the legislature outlined

the Board’s powers and authorities with respect to operation of the Hospital District, but

said nothing in that Act to indicate an intent to allow liability against hospital districts for

any type suits for damages. See Act of April 25, 1955. This is important, because in the

example in which this court discussed consideration of whether a waiver is “without

doubt,” this court acknowledged it has found waiver when analysis of the statute proves

the provision would be meaningless unless construed as a waiver. 106 S.W.3d at p. 697.

       In the present case, examination of the scheme where section 281.056 was enacted

shows the legislature’s focus in creating the “sue and be sued” language with respect to

the Board of Managers in 1955 was not to create an avenue for suit against Hospital

Districts. In the Act of 1995, when the legislature added this language, the legislature

expressly stated in that Act that the reason it found it was a public necessity to enact the

various powers and authorities of the Board in its Act on an emergency basis was because

law at that time did not provide sufficient detail as to the powers, duties, responsibilities

and methods of creation and of operation of Hospital Districts. See Act of 1955 §17.


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There is nothing in that statement of intent indicating a desire on the part of the

legislature to create a scheme for waiver of the Hospital District’s immunity from suit or

liability.

        Moreover, at the time the legislature included the “sue and be sued” language with

respect to the Board of Managers, it was more than 15 years before this court’s decision

in Missouri Pacific R.R. Co. Therefore, it cannot be said that the legislature, aware of

that decision, included the “sue and be sued” language to ensure it would be construed as

a waiver of sovereign immunity from suit. As this court made clear in its second

interpretative aid in Taylor: “If the text and history of the statute leave room to doubt

whether the Legislature intended to waive sovereign immunity, we are less likely to find

a waiver.” 106 S.W.3d 697.

        Finally, consideration of the last two principles this court outlined in Taylor make

it even more clear that this statute fails to evidence a waiver of immunity of suit. The

third interpretative aid this court discuss in Taylor involves consideration of whether the

statute requires the entity to be joined in a suit where immunity would otherwise attach.

106 S.W.3d at p. 697-98. There is nothing in section 281.056 of Health & Safety Code

now, or at the time of its enactment, indicating this principal is involved in the Hospital

District’s statutory scheme. Moreover, considering the principle that the legislature often

enacts measures to insulate public resources when it waives immunity, it should be noted

that there is no provision in section 281.056 of the Health & Safety Code, or in the Act

which created it, indicating the legislature provided measures to insulate Hospital District

resources with caps or other insulation measures to protect those resources against


                                             13
possible suits for damages. Accordingly, the absence of any evidence of waiver, utilizing

the interpretative principles this court announced in Taylor, indicates the appellate court’s

opinion was incorrect in its assessment that the “sue and be sued” language in section

281.056 of the Health & Safety Code waived the Hospital District’s immunity from suit.

For this reason, it is respectfully requested that this court accept jurisdiction to grant this

petition and correct this error.

       PRAYER FOR RELIEF

       It, is therefore, respectfully requested that this court grant the petition for review in

this case, pursuant to TEX. R. APP. P. 56.1(a)(2), (3), (5) and/or (6); and, upon review, it

is requested that this court issue an opinion that corrects the error of law in the appellate

court’s opinion below, reverse the appellate court’s judgment, and affirm the disposition

of the trial court below; and for such other and further relief to which the Hospital

District may be entitled in law or in equity.

                                                Respectfully submitted,

                                                MICHAEL A. STAFFORD
                                                County Attorney SBN 99999939

                                                __________________________________
                                                Sandra D. Hachem
                                                (State Bar # 08667060)
                                                Assistant County Attorney
                                                P. O. Box 20130
                                                Houston, Texas 77225-0130
                                                (713) 363-2384 PHONE
                                                (713) 363-2396 FAX

                                                ATTORNEY FOR PETITIONER,
                                                HARRIS COUNTY
                                                HOSPITAL DISTRICT


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                           CERTIFICATE OF SERVICE

       I hereby certify that on this the ______ of November, 2005, a true and correct
copy of the foregoing brief was mailed by certified mail, return receipt requested, to
Respondent, Tomball Regional Hospital, care of its attorney of record, Margaret A.
Pollard, Sullins, Johnston, Rohrbach & Magers, 2200 Phoenix Tower, 3200 Southwest
Freeway, Houston, Texas 77027; and a copy was also mailed to Randall Payne of the
same office on the same date.

                          ____________________________________
                                     Sandra Hachem




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