IN THE
TENTH COURT OF APPEALS
No. 10-00-377-CV
WICHITA FALLS STATE HOSPITAL,
Appellant
v.
DEBORAH D. TAYLOR, INDIVIDUALLY
AND AS HEIR OF THE ESTATE
OF TERRY LYNN TAYLOR, DECEASED,
Appellees
From the 249th District Court
Johnson County, Texas
Trial Court # 249-283-98
DISSENTING OPINION
This case is about whether the State Legislature clearly and unambiguously waived sovereign immunity from being sued for violations of a “patient’s bill of rights.” We are not to determine what is good public policy or bad public policy. We are not to fix or repair what the Legislature wrote.
But this is not statutory construction in the traditional sense. We do not necessarily have to resolve a question of statutory construction. In fact, if we find a need to construe or interpret the statute, our job is complete; there is no clear and unambiguous waiver of the State’s immunity from suit.
Two cases have directly evaluated the issue. In one sense, they are of little help to resolving the issue. In one case, three justices held it was not a clear and unambiguous waiver. See Texas Dep’t of Mental Health & Mental Retardation v. Lee, 38 S.W.3d 862 (Tex. App.—Fort Worth 2001, pet. filed) (op. on reh’g). In the other, two justices held it was a clear and unambiguous waiver and one justice concurred only in the result. See Central Counties Ctr. For Mental Health & Mental Retardation Servs. v. Rodriguez, No. 03-00-369-CV (Tex. App.—Austin Mar. 29, 2001, no pet. h.). When you add in the results of this court, four courts of appeals justices have concluded there is a clear and unambiguous waiver and four justices have concluded it is not a clear and unambiguous waiver.
My analysis is not nearly so complex as those articulated by my learned colleagues. I start with what the Texas Supreme Court has told me: a waiver of sovereign immunity must be by clear and unambiguous language. Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980). I add to this the principle that we must examine the entire statute and all its parts to determine the purpose of the statute. See Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994); Smith v. Wise County Bail Bond Bd., 995 S.W.2d 881, 884 (Tex. App.—Fort Worth 1999, pet. denied).
Next, I add to the mix the logic that when a defined term is used, we should be able to substitute the definition into the text of the statute and the applicability of the statute should be consistent, meaningful, and logical.
In this case, I begin with what appears to be a simply worded provision: “A person who has been harmed by a violation may sue for injunctive relief, damages, or both.” Tex. Health & Safety Code Ann. § 321.003(b) (Vernon Pamp. 2001). Now, we know this is not a clear and unambiguous waiver in itself because the Legislature frequently creates or codifies causes of action in broad language like this but does not waive the State’s immunity. Eg. Tex. Bus. & Com. Code Ann. §§ 17.41-17.63 (Vernon 1987 & Pamp. 2001) (the Deceptive Trade Practices-Consumer Protection Act). Taylor tells us that to determine who can be sued under this statute we must look to another section; one she contends is a waiver of the State’s immunity from liability. The section states:
A treatment facility or mental health facility that violates a provision of, or a rule adopted under, this chapter, . . . is liable to a person receiving care or treatment in or from the facility who is harmed as a result of the violation.
Tex. Health & Safety Code Ann. § 321.003(a) (Vernon Pamp. 2001).
For purposes of this opinion, we will skip the issues of whether this liability is to anyone other than the patient and whether it creates liability for events occurring after discharge. But a straight forward reading of this section certainly adds nothing to the question of whether the Legislature clearly and unambiguously waived the State’s immunity from suit.
Now Taylor asks us to look to the definition section for the definitions of “treatment facility” and “mental health facility.” When we turn to that section, we find the following:
(4) “Mental health facility” has the meaning assigned by Section 571.003.
(6) “Treatment facility” has the meaning assigned by Section 464.001.
Tex. Health & Safety Code Ann. § 321.001(4) and (6) (Vernon Pamp. 2001).
So within this chapter we still have no indication that the Legislature has clearly and unambiguously waived the State’s immunity from suit. But Taylor wants us to go to these referenced sections which were statutes enacted prior to Chapter 321 of the Health and Safety Code; so we will.
The majority turns only to the section referenced for the definition of “Mental health facility.”
(12) “Mental health facility” means:
(A) an impatient or outpatient mental health facility operated by the department, a federal agency, a political subdivision, or any person;
(B) a community center or a facility operated by a community center; or
(C) that identifiable part of a general hospital in which diagnoses, treatment, and care for persons with mental illness is provided.
Tex. Health & Safety Code Ann. § 571.003(12) (Vernon Supp. 2001).
Taylor and both courts which have previously construed the statute stop their analysis with this definition. Taylor, the Austin Court of Appeals, and the majority take the position that this is the definition which clearly and unambiguously waives the State’s immunity from being sued.
If the effect of this definition is that its purpose was to make the State subject to suit and liable, the same analysis must apply equally to each entity referenced within that definition. But we know that cannot be the effect of this definition–why?–because this definition defines “mental health facility” to include both inpatient and outpatient mental health facilities. The patient’s-bill-of-rights appears to apply only to inpatient facilities. The three agencies charged with each adopting a patient’s-bill-of-rights, which is not a defined term, are to include the provisions the agency considers
“ . . . necessary to protect the health, safety, and rights of a patient receiving a voluntary or involuntary mental health, chemical dependency, or comprehensive medical rehabilitation services in an inpatient facility.”
Tex. Health & Safety Code Ann. § 321.002(a) (Vernon Pamp. 2001). (Emphasis added).
If we use the method of construing Texas Health and Safety Code Section 321.002 that Taylor uses to create the cause of action and waive the State’s immunity from suit, outpatient mental health facilities would be liable for violations of the patient’s-bill-of-rights. This is contrary to Texas Health and Safety Code Section 321.002(9) quoted above.
Additionally, if the application of the patient’s bill of rights to outpatient facilities and their liability could be resolved under Texas Health and Safety Code Section 321.003, there is still the problem of including facilities operated by a federal agency within the list of entities who can be sued and that are liable. One thing that is clear, the Texas Legislature cannot waive the federal government’s immunity. Again, if we are going to be consistent in construction of this statute, and if we use Taylor’s theory of statutory construction, that is exactly what the Legislature has done – waived the federal government’s immunity.
Finally, the definition of “Mental health facility” either violates one of the fundamental tenants of defining a term - you cannot use the term you are defining - or it is a very poor way to reference the definition of “inpatient mental health facility” which is separately defined. Again, the definition Taylor relies on and refers us to is:
“Mental health facility” means:
(A) an inpatient or outpatient mental health facility operated by the department, a federal agency, a political subdivision, or any person; . . .
Tex. Health and Safety Code § 571.003(12)(A) (Vernon Supp. 2001). (Emphasis added).
If the last portion of this subsection is actually a definition of what constitutes inpatient or outpatient mental health facility, then why have a separate definition of “inpatient mental health facility?”
(9) “Inpatient mental health facility” means a mental health facility that can provide 24-hour residential and psychiatric services and that is:
(A) a facility operated by the department;
(B) a private mental hospital licensed by the Texas Department of Health;
(C) a community center;
(D) a facility operated by a community center or other entity the department designates to provide mental health services;
(E) an identifiable part of a general hospital in which diagnosis, treatment, and care for persons with mental illness is provided and that is licensed by the Texas Department of Health; or
(F) a hospital operated by a federal agency.
Tex. Health and Safety Code § 571.003(9) (Vernon Supp. 2001).
This definition would be redundant of subsection (12) to some extent – a facility operated by the department and a hospital operated by a federal agency – but not redundant as to other parts of the definition – a political subdivision, or any person.
If all this seems confusing or less than clear, hold that thought.
Now we turn our attention to the definition of treatment facility in Section 321.001(6) by reference to Texas Health and Safety Code Section 464.001.
In the referenced section:
(5) “Treatment facility” means:
(A) a public or private hospital;
(B) a detoxification facility;
(C) a primary care facility;
(D) an intensive care facility;
(E) a long-term care facility;
(F) an outpatient care facility;
(G) a community mental health center;
(H) a health maintenance organization;
(I) a recovery center;
(J) a halfway house;
(K) an ambulatory care facility; or
(L) any other facility that offers or purports to offer treatment.
Tex. Health & Safety Code Ann. 464.001(5) (Vernon 1992).
This section does not suffer from the internal vagueness that Texas Health and Safety Code Section 571.003 does regarding inpatient or outpatient mental health facility. It does, however, suffer from the same confusion of a conflict by the referenced definition expressly including outpatient care facility when the patient’s bill of rights does not appear to apply to outpatient facilities. Cf. Tex. Health & Safety Code Ann. §§ 321.002(9) and 464.001(5)(F) (Vernon Pamp. 2001 & Vernon 1992). Likewise, some of the other facilities mentioned in this later section could also be outpatient facilities.
Again, if this too seems confusing or less than clear, hold that thought.
This brings us back to where we started. We must only decide whether there was a clear and unambiguous waiver of the State’s sovereign immunity from suit by the Legislature. We need not decide what the statute means. If it is not a clear and unambiguous waiver, we simply say so.
It is not a clear and unambiguous waiver. If the statutes are confusing or if the statutes seem less than clear, then we have come to the only decision that is necessary to determine this case; there is not a clear and unambiguous waiver of immunity from suit. Because the majority concludes otherwise, I respectfully dissent.
TOM GRAY
Justice
Dissenting opinion delivered and filed May 16, 2001
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