In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-04-155 CV
____________________
ROGER EUGENE GRESHAM, Appellant
V.
UNIVERSITY OF TEXAS MEDICAL BRANCH, Appellee
Jefferson County, Texas
Trial Cause No. D-168,843
This case arises from the trial court's dismissal of appellant Roger Eugene Gresham's negligence lawsuit against the University of Texas Medical Branch ("UTMB"). We will affirm.
Gresham, an inmate at the Federal Correction Complex, Beaumont, Texas, maintained he was injured because UTMB failed to screen a fellow inmate for infectious diseases before the fellow inmate was placed into the general prison population. Gresham subsequently contracted tuberculosis, allegedly from his fellow inmate.
Gresham brought suit against UTMB pursuant to 42 U.S.C. §§ 1983 and 1985. UTMB removed the suit to federal court and moved to dismiss the suit for failure to state a claim upon which relief could be granted. Adopting the magistrate's report and recommendations, the federal district court dismissed Gresham's claims against UTMB. However, the federal court refused to exercise its supplemental jurisdiction and remanded Gresham's cause to state court. In its memorandum order, the federal district court noted Gresham's complaint asserted he had been deprived of his civil rights under color of state law and further contended UTMB had been deliberately indifferent and negligent. The federal district court stated: " Liberally construed, plaintiff's complaint is interpreted to assert a state law claim for negligence against the defendant."
After remand to state court, UTMB filed a plea to the jurisdiction asserting its sovereign immunity. The trial court granted the jurisdictional plea and dismissed Gresham's suit in its entirety.
On appeal, Gresham maintains the trial court erred in dismissing his suit. Gresham asserts UTMB is not a state agency and thus is not protected by the sovereign immunity doctrine. Gresham argues sovereign immunity does not apply because the Texas Supreme Court has never found UTMB to be a state agency; UTMB has the power to sue and be sued; UTMB does not perform an essential government function; UTMB has the power to own property in its own name; and UTMB has corporate status.
Absent subject matter jurisdiction, a court lacks authority to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). "Sovereign immunity from suit defeats a trial court's subject matter jurisdiction. . . ." Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)(citations omitted). "A unit of state government is immune from suit and liability unless the state consents. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)(citations omitted).
Gresham questions whether UTMB is a state agency entitled to the protection from suit afforded by sovereign immunity. The answer is yes.
UTMB is a part of the University of Texas system. See Tex. Educ. Code Ann.§§ 65.02(a)(8), 74.001 (Vernon 2002). A branch of the University of Texas system is a state agency, and thus, it is also protected by sovereign immunity. See Clark v. University of Tex. Health Science Ctr. at Houston, 919 S.W.2d 185, 187 (Tex. App.- Eastland 1996,writ denied)(citation omitted); see Whitehead v. University of Tex. Health Science Ctr. at San Antonio, 854 S.W.2d 175, 180 (Tex. App.- San Antonio 1993, no writ)(citation omitted).
Gresham alleges negligence in his cause of action against UTMB. The Texas Tort
Claims Act provides for a limited waiver of sovereign immunity in negligence cases. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997). (2)
However, Gresham's
negligence allegations relate to UTMB's screening procedures and are claims for actions
that have not been waived by the State under the Tort Claims Act. See id.; see Tex. Dept.
of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). Gresham also does not allege that
any other waiver of immunity applies. Gresham, just as any plaintiff suing a governmental
unit, "must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver
of immunity." See Whitley, 104 S.W.3d at 542 (Tex.2003). The trial court did not err in granting UTMB's plea to the jurisdiction and
dismissing Gresham's case in its entirety. We overrule Gresham's issue and affirm the
trial court's order dismissing Gresham's suit. AFFIRMED. ___________________________ HOLLIS HORTON Justice Submitted on January 25, 2005 Opinion Delivered February 3, 2005 Before McKeithen, C.J., Kreger and Horton, JJ. 1. Tex. R. App. P. 47.4.
2. 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.
Tex. Civ. Prac.& Rem. Code Ann. § 101.021 (Vernon 1997).