the University of Texas Southwestern Medical Center v. Charles Wayne Taylor and Rosemary Taylor

ACCEPTED
05-17-01221-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/29/2018 2:46 PM
LISA MATZ

5th Court of Appeals
CLERK

FILED: 1-31-18
Lisa Matz, Clerk
NO. 05-17-01221-CV
RECEIVED IN
5th COURT OF APPEALS
3Jn tbe jf tftb '!Court of �ppeals DALLAS, TEXAS
01/29/2018 2:46:44 PM
11Ballas, m:exas LISA MATZ
Clerk

THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,
Appellant,
V.
CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR,
Appellees.

On Appeal from the 14th Judicial District of Dallas County, Texas
Trial Court Cause No. DC-16-08022
The Honorable Eric V. Moye, Presiding Judge

APPELLEES' BRIEF

Brenda J. Williams
State Bar No. 21515300
Bank of America, Oak Cliff Tower
400 South Zang Blvd., Suite 1200
Dallas, Texas 75208
Tel: (214) 946-0865
Fax: (214) 948-3038
bwilliams@bjwilliamslaw .com
Counsel for Appellees
Charles Wayne Taylor and
Rosemary Taylor

ORAL ARGUMENT REQUESTED
 REQUEST FOR ORAL ARGUMENT

Pursuant to Rules 39.1 and 39.7 of the Texas Rules of Appellate Procedure,

Appellees hereby request oral argument i.n this case.

11
 TABLE OF CONTENTS

PAGE

REQUEST FOR ORAL ARGUMENT ..................................................................... ii

TABLE OF CONIBNTS ............................................................................................... iii-iv

INDEX OF AUTHORITIES................................................................................... v-viii

STATEMENT OF THE CASE...... ........ ........... . . . .......... .... ....... .... . . ..... ix-x

ISSU E PRESENTED .................................................................................................. xi

APPELLEES' BRIEF .............................................................................................. l

FACTUAL BACKROUND AND PROCEDURAL HISTORY ......................... .... 2

SUMMARY OF THE ARGUMENT ..................................................... ..................... 4-5

AR.GUMENT AND AUTHORITIES ............................................................................ 6-13

ISSUE: Om THE TRIAL COURT ERR IN DENYING UT SOUTHWESTERN'S
MEDICAL Center's PLEA TO THE JURISDICTION AND MOTION FOR
SUMMARY JUDGMENT.

A. Standard ofReview ........................................................................ 6

B. Appellees filed suit Within the TMLA Statute ofLimitations.. .. 7-8

C. UTSW as a Component of UT System Notice and Was Not Placed

At Any Disadvantage... ...... ...... .. .. . . ..... . . . ..... .... .... . ... .. 8-12

D. UT SW had Notice When Original Petition was filed and Served
on UT System's General Counsel. ............. ... ...................... 13

Ill
 PRAYER ......................................................................................................................... 14

. CERTIFICATE OF CO:MPLIANCE .................................................... 14

CERTIFICATE OF SERVICE ............................................................................... 14-15

iv.
 INDEX OF AUTHORITIES

CASES PAGE

Bailey v. Univ. of Texas Health Science Center at San Antonio,
261 S.W.3d 147 (Tex. App.-San Antonio 2008, pet. granted) ............ 11

Barth v. Bank of America, N.A. 351 S.W. 3d 875 (Tex. 2011) ...................... 11

Bland I. S.D. v. Blue,.
34 S.W.3d 547 (Tex. 2000) ........................................................ 6

Craig v. White Plaza Hotel,
289S.W 2d625 (Tex. Civ. App.-Waco 1956, writref'dn.r.e) ................ 10

Charter Oak Fire Ins. Co, v. Square, 526 S.W. 2d 635 (Tex. Civ. App.-Waco
1975, writ ref'd n.r.e.) ..................................................................... .10

Diversicare General Partners, Inc. v. Rubio,
185 S.W.3d 842 (Tex. 2005) ........................................................ 7

Garland Community Hospital v. Rose,
156 S.W. 3d 54l(Tex. 2004) ....................................................... 7

Dougherty v. Gifford,
826 S.W. 2d 668 (Tex App.-Texarkana 1992, no writ) ......................... 10

Flour Bluff I. S.D. v. Bass,
133 S.W. 3d 272 (Tex 2004 ....................................................... 12

In Re Greater Houston Orthopaedic Specialists, Inc.,
S. W 3d (Tex.2009) ... ...................................................................... 10

Murphy v. Russell,
167 S.W.3d 835 (Tex. 2005) ........................................................ 8

v
Prairie View A&M Univ. v. Chatha,
381 S.W.3d 500 (Tex. 2012) ........................................................................ 8

Reddy Partnership/5900 North Freeway LP v. Harris County Appraisal District,
370 S.W. 3d 373 (Tex. 2012) ............................................. 5,10,13

Rico v. Judson Lofts, Ltd.,
404 S.W. 3d 762 (Tex. App.-San Antonio 2013, pet. denied) ............... 10

Shell Pipe Line Co. v. Wheeler,
730 S.W. 2d 851 (Tex. App.-El Paso 1987, writ ref'd n.r.e.) ............... ll

Sloan v. Farmer,
217 S.W.3d 763 (Tex. App.~Dallas 2007, pet. denied) ........................ 7

Texas Dept. ofParks & Wildlife v. Miranda,.
133 S.W.3d 217 (Tex. 2004) ......................................................................... 6

Texas A&M Univ. v. Koseoglu,
233 S.W.3d 835 (Tex. 2007) ....................................................... 6

Univ. ofTexas at Austin v. Hayes,
327 S.W.3d 113 (Tex. 2010) ......................................................................... 6

Univ. of Texas Health Science Center at San Antonio v. Bailey,
332 S.W.3d 395 (Tex. 2011) ........................................................ 11

vi
Whitehead v. Univ. of Texas Health Science Ctr. at San Antonio,
854 S.W.2d 175 (Tex. App.-San Antonio 1993, no pet.) .......................... 12

STATUTES

Texas Education Code Ann.
§§ 65.11 ....................................................................................................... 8
§§ 65.31(g) ................................................................................................... 8
§§ 65.31 (a) ................................................................................................... 8,9
§§ 65.02 ........................................................................................................ 8,9

Texas Medical Liability Act (TMLA)
Chapter 101 .................................................................. ix,x,2,4,7

Texas Tort Claims Act (TTCA), Texas Civil Practice and Remedies Code

§§ 74.001 ................................................................................................ .ix,x,7

§§ 74.051 ................................................................................................ .ix,x,2

§§ 74.251 ................................................................................................. .ix,x,2

vii
i
RULES

Texas Rules of Appellate Procedure

Rule 38.2 ............... __ .............................................................. 1
Rules 39.1 and39.7 .................................................................. .ii
Rule 9.2 .................................... . ........................................... 14
Rule 9.4 ................................................................................ 14
Rule 9.5(b) ......... .... ......... ..... ............................................. 14,15

Texas Rules of Civil Procedure

Rule 62 ... __ ......................................................................... 10

viii
STATEMENT OF THE CASE

This case is a health care liability claim filed
against a governmental unit of the State of
Texas under the Texas Medical Liability Act
(TMLA), Chapter 74, and the Texas Tort Claims
Act (TTCA), Chapter 101, of the Texas Civil
Practice and Remedies Code. Appellees' health
care liability claims arise out of two bladder
related surgeries performed on Charles Wayne
Taylor at the V.A. North Texas Health Care
System in Dallas, Texas, on April21 and April
24, 2014. During these procedures, Appellees
assert that a physician at Uf Southwestern
committed negligence that led to alleged
personal injuries to Mr. and Mrs. Taylor.
Appellees provided pre-suit notice of claim to
University of Texas Southwestern Medical
Center by sending the notice to Leah Hurley,
The applicable statute of limitations under the
TMLA, which is two (2) years plus 75 days for
Appellees' claim, ran on July 8, 2016. The
lawsuit naming the defendant as "University of
Texas Southwestern Medical Center/The
University of Texas System" was filed on July
5, 2016. On July 18, 2016, the original petition
and citation was served by certified mail on the
Vice Chancellor and General Counsel for
University of Texas System. (CR 117-118).
Appellees amended the petition revising the
defendant's name to "University of Texas
Southwestern Medical Center" on February 22,
2017. (CR138-143). University of Texas
Southwestern Medical Center is a component
of The University of Texas System and
therefore clearly had notice of the lawsuit on
on July 18, 2016 when service made on Uf
System Chancellor and General Counsel. UT
Southwestern Medical Center and UT System
are closely related entities and the filing of the
amended petition related back to the filing of

ix
the original pet1t10n. (App. A). In this case,
there was no failure to comply with the
applicable statute of limitations under TMLA
which negated a waiver of UT Southwestern's
sovereign immunity under the TTCA.

X
 ISSUE PRESENTED

DID THE TRIAL COURT ERR IN DENYING UNIVERSITY OF
TEXAS SOUTHWESTERN MEDICAL CENTER'S PLEA TO THE
JURISDICTION AND MOTION FOR SU1\1MARY JliDGMENT.

XI
 NO. 05-17-01221-CV

]n tbr jfiftb QCourt of §ppeals
iJ.Ballas, Ut:exas

THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,
Appellant,
v.
CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR,
Appellees.

On Appeal from the 14th Judicial District of Dallas County, Texas
Trial Court Cause No. DC-16-08022
The Honorable Eric V. Moye, Presiding Judge

APPELLEES' BRIEF

TO THE HONORABLE FIFTH COURT OF APPEALS:

Pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, Appellees'

Brief Charles Wayne Taylor and Rosemary Taylor ("Taylors"), in the above styled

and numbered appeal, files this Brief and would respectfully show that the Court

should affirm the trial court order denying University of Texas Southwestern

Medical Center's Plea to the Jurisdiction and Motion for Summary Judgment.

1
 FACTUAL BACKGOUND AND PROCEDURAL HISTORY

Plaintiffs' Original Petition was filed naming "University of Texas Southwestern

Medical Center/University of Texas System" as Defendant on July 5, 2016, within

the two-year and seventy-five-day statute of limitations period as set out in Texas

Healthcare Liability Act, Texas Civil Practice and Remedies Code §§ 74.051 &

74.251. Plaintiffs' First Amended Original Petition, was filed on February 22, 2017

and revised the name of the Defendant to "University of Texas Southwestern

Medical Center" ("UTSW')

In addition, UTSW had actual notice of the claim within the six month time

period allowed by the TTCA. Plaintiffs injuries claimed in this case were related to

treatment by UTWS physician, Ryan J. Mauck, during April21 to Apri130, 2014 at

the Dallas Veterans Medical Center involving surgical equipment being left in after

surgery. On July 8, 2014 surgery was performed at UTSW by another UTWS

physician to remove the surgical equipment left in during the prior surgery.

On April 19, 2016, Appellees certified mailed Leah Hurley, UTSW's Vice President,

Legal Affairs the pre-suit notice of claim pursuant to §74.051 of the TMLA. ( CR 280-

285) On July 5, 2016, Plaintiffs' Original Petition was filed naming "University of

Texas Southwestern Medical Centerffhe University of Texas System as the defendant

in the case. (CR 13-18). On July 18, 2016, David Miller, of UT System's General

Counsel's Office signed and accepted the citation whlch stated "University of Texas

2
Southwestern Medical Center" as the Defendant on the behalf of the Chancellor and

General Counsel, Daniel H. Sharphom, JD. (117-118, 82). UTSW does not dispute that

UTSW is not a component of and one of fourteen educational institutions governed by

UT System and are therefore closely related entities. (CR 120-122) (App. A). On

December 22, 2016, UT System filed a Plea to the Jurisdiction alleging that no UT

System employees were involved in the health care in question. On February 22, 2017

Plaintiffs filed their First Amended Original Petition, which changed the name of the

Plaintiff from "University of Texas Southwestern Medical Center/The University ofTexas

System" to "University of Texas Southwestern Medical Center" (CR 73-96). On February

28, 2017, the Court granted UT System's Plea and severed the UT System from the

amended suit. (CR-147-148). Defendant UTSW was served with Plaintiffs' First

Amended Original Petition on March 4, 20 I 7 and filed their Original Answer and Jury

Demand on March 23, 2017 (CR 256-259, 260-265).

UTSW filed a Plea to the Jurisdiction and Motion for Summary Judgment

based on the defense of statute of limitations. (CR 213-265). On October 4, 2017,

an oral hearing was held and the trial court denied UTSW's PJea to Jurisdiction and

Motion for Summary Judgment (CR 336).

3
 SUMMARY OF ARGUMENT

UTSW's sovereign immunity has been waived in this case. Appellees

complied with all prerequisites to filing suit and timely filed suit within the

statutory period. In health care liability claims against state governmental units, a

plaintiff must comply with the requirements of both the TTCA and Texas Medical

Liability Act (TMLA). The applicable statute of limitations under the TMLA is

two-years plus 75 days, if proper pre-suit notice of claim is provided. Appellees

argument is based on the amended petition relating back to the filing of the original

petition and therefore timely filed in instances where there is merely a misnaming

of the defendant, involves related parties, misnamed party had notice and was not

placed at any disadvantage.

Appellees did not fail to comply with TMLA statute of limitations in filing

their suit against UT Southwestern Medical Center/UT System, which amounted to

simply misnaming the Defendant. Appellees filed their original suit against

"University of Texas Southwestern Medical Center/ University of Texas System"

within the TMLA's limitations period. In this case, the misnaming involved closely

related parties as University of Texas Southwestern Medical Center is a component

4
ofThe University of Texas System. (App. A).

Appellees misnaming the Defendant in their original petition does not prevent the

waiver ofUT Southwestern's sovereign immunity under the TTCA. In Appellees case,

the amended petition related back to the original suit which named "University of

Texas Southwestern Medical Center!University of Texas System" as the Defendant. In

Appellees' case, the tolling doctrines of misnomer and/or misidentification allows an

abatement of the proceeding until the misnomer is corrected. Reddy Partnership/5900

North Freeway LP v. Harris County Appraisal District, 370 S.W. 3d 373, 55 Tex. Sup.

Ct. J. 1099, 1101 (Tex. 2012). Appellees lawsuit was timely filed and the amended

petition related back and merely served to clarify the name of the Defendant.

Therefore, the trial did not commit reversible error in denying UTSW's Plea to the

Jurisdiction.

5
 ARGUMENT AND AUTHORITIES

A. Standard of Review

The Court must review evidence as it relates to the question of the Court's

jurisdiction. Miranda, 133 S.W.3d at 223 & 226-228; Bland !.S.D. v. Blue, 34

S.W.3d 547, 555 (Tex. 2000). If the jurisdictional evidence is undisputed or fails

to raise a fact question, the suit should be dismissed for want of subject matter

jurisdiction; Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

However, courts are to construe the pleadings liberally in favor of the Plaintif. In

Univ. of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the Texas

Supreme Court reasoned as follows:

When a plea the jurisdiction challenges the existence of jurisdictional
facts, the trial court must review the relevant evidence to determine
whether a fact issue exists. Miranda, 133 S. W. 3d at 226. The Plaintiff
bears the burden to allege facts demonstrating jurisdiction, and we
construe the pleadings liberally in the plaintiffs favor. !d. If the
evidence raises a fact question on jurisdiction, the trial court cannot
grant the plea, and the issue must be resolved by the trier of fact.Jd
at227-228.

6
B. Appellees Filed Suit Within the TMLA Statue of Limitations

UTSW contends that in a statutory cause of action against a governmental

entity, the failure to adhere to the statute's mandatory provisions that must be

accomplished before filing suit is a jurisdictional bar to suit. AppelJees filed suit

on July 5, 2016, which was within the applicable statute oflimitations. (CR 13-

18). The facts in Appellees case are clearly distinguishable from all of the cases

cited by UT Southwestern in light of the fact that Appellees lawsuit was filed

within the two years and 75 day time period. In bringing their medical

negligence/ health care liability claim against UTSW/UTS, Appellees complied

with the TMLA as well as the TTCA. Tex. Civ. Prac. Rem. Code Ann.§§

7 4.001 et seq. The cases cited by Appellant to support their argument, all involve facts in

which the lawsuit was filed after the statute oflimitation ran or the plaintifPs failure related

timely perform other prerequisites to filing suit. In Diversicare General Partners, Inc. v.

Rubio, 185 S.W.3d 842,851 (Tex. 2005), the medical liability suit was filed four

years after claim arose. In Murphy v. Russell, 167 S.W.3d 835, 837-38 (Tex.

2005), expert report was not filed within the 180-day time period. In Garland

Community Hasp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004), the issue was

whether there was a good faith effort to comply with definition of an expert

report. In Sloan v. Farmer, 217 S.W.3d 763,767 (Tex. App.-Dallas 2007, pet.

7
 denied), involved the failure of the plaintiff to file an expert report. Furthermore,

Prairie View A&M University v. Chatha, 381 S.W.3d at 510, was cited by UTSW

relating to, no waiver of immunity where a party fails to adhere to the statutes

mandatory provisions. Chatha involved whether the 180-day statutory pre-suit

requirement of filing a complaint with the Texas Workforce Commission was

required to be complied with prior to the filing an EEOC discrimination lawsuit

The cases UTSW is relying on to support their no waiver argument are clearly

distinguishable from Appellees case, in that Appellees timely filed their original

suit and timely satisfied all other pre-suit requirements within the statutory period.

C. UTWS as a Component of UTS and Subject to UTS Governance had Notice of
Original Petition, Was Not Surprised or Placed at any Disadvantge

Section 65.11 of the Education Code charges the UT Board ofRegents with the

"administration" and "organization" of the UT System institutions and entities to "achieve

the maximum operating efficiency of such institutions and entities.'' Tex. Educ. Code

Ann. §65.11 (West 2002). (App. A). Section 65.3l(g) allows the UT Board of Regents

"by rule to delegate a power or duty of the board to a committee, officer, employee, or

other agent of the board." Jd. §65.31(g). (App. A) Section 65.31(a) provides that the UT

Board of Regents "is authorized and directed to govern, operate, support, and maintain

each of the component institutions that are now or may hereafter be included

8
in a part of The University of Texas System." !d. § 65.3l(a). Section

65.02 specifically lists 12 entities that comprise the UT System. !d. § 65.02. It

further lists 29 subordinate entities that are included within the 12 main

entities. !d. The statute specifically identifies UT Southwestern Medical

Center.Jd. Subsection (b) provides that "The University of Texas System shall

also be composed of such other institutions and entities as from time to time may

be assigned by specific legislative act to the governance, control, jurisdiction, or

management ofThe University ofTexas System." !d. § 65.02(b).

The Chancellor and General Counsel for University of Texas Systems was

served via certified mail with Plaintiffs Original Petition on July 18, 2016 and

the Officer's Return shows "University of Texas Southwestern Medical Center"

as the Defendant. (CR 117-118). The citation was accepted by UT Systems,

presumably on behalf ofUTSW as one of their component institutions. UTSW

has not alleged that they were not put on notice of the lawsuit or were placed at

any disadvantage by the misnomer of the plaintiff in the original petition as,

"University of Texas Southwestern Medical Center/ University of Texas System".

9
 Pursuant to Texas Rule of Civil Procedure 62, an error in naming a

party to a suit or a faulty description of the status or capacity of a party may

be corrected by a proper amendment to the pleadings Tex. R. Civ. P. 62.

When the error consists merely of a "misnomer," such as misstating the

party's name, capacity, or status, the amended pleading relates back to the

original filing and tolls the applicable statute of limitations In re Greater

Houston Orthopaedic Specialists, Inc., 295 S. W3d 323, 325-326 (Tex.

2009) (plaintiff's misidentification of itself did not mislead defendant);

Rico v. Judson Lofts ,Ltd, 404 S. W3d 762, 765-766 (Tex. App.-San

Antonio 2013, pet. denied) Charter Oak Fire Ins. Co. v. Square, 526

S. W2d 635, 637 (Tex. Civ. App.-Waco 1975, writ ref'd n.r.e.) Craig v.

White Plaza Hotel, 2898. W2d 625, 630 (Tex. Civ. App.-Waco 1956, writ

ref'd n.r.e.) Dougherty v. Gifford, 826 S. W2d 668, 676---677(Tex. App.-

Texarkana 1992, no writ. In cases involving a misnomer that is not

misleading and the parties are aware of the entity the misnomer is referring

to the wrongly identified party is entitled to an abatement of the proceeding

until the misnomer is corrected. Reddy Partnership/5900 North Freeway

LP v. Harris County Appraisal District, 370 S. W3d 373, 55 Tex. Sup. Ct. J.

1099, 1101 (Tex. 2012) (no prejudice or disadvantage from misnomer);

10
 Barth v. Bank of America, NA., 351 S. W.3d 875, 876--877 (Tex. 2011) (no

misnomer when party misnames itself or another party, but correct parties

are involved); Shell Pipe Line Co. v. Wheeler, 730 S. W.2d 851, 852 (Tex.

App.-El Paso 1987, writ ref'd n.r.e.) (prior dealings and correspondence

between parties in correct name of corporation precluded finding of

surprise when amendment of pleadings offered to correct name).

In University of Texas Health Science Center v. Bailey, 332 S. W. 3d 395(Tex.

2011), the Supreme Court of Texas, stated that the relation-back doctrine does not

affect the running of limitations on a cause of action; rather, it defines what is to be

included in "the action" to which limitations applies. The Court reasoned as follows:

The relation-back doctrine does not affect the running of limitations on a
cause of action; rather, it defines what is to be included in "the action" to
which limitations applies. The common law took a very narrow view.
Professor Wright and his co-authors tell us:

At common law a litigant had very little freedom to amend the
written pleadings other than to correct formal defects and
remedy errors of oversight. Thus, an amendment that
attempted to introduce [**12] a new cause of action or to
change the form of the action - for example, from trespass to
trespass on the case- would be disallowed. 24

Our early view was similarly strict. In a 1901 case, we held that in a suit for
breach of an express contract, a claim for breach of an implied contract,
added by amended pleadings, was barred by limitations. 25 To avoid the bar
of limitations, we said, "[i]t is not sufficient that the causes of action be

11
 similar in their nature, but they must be essentially identical." 26 The
Legislature took a broader approach in 1931 , enacting the rule that
remains the law today:

If a filed pleading relates to a cause of action, cross action,
counterclaim, or defense that is not subject to a plea of
limitation when the pleading is filed, a subsequent amendment
or supplement to the pleading that changes the facts or
grounds of liability or defense is not subject to a plea of
limitation unless the amendment or supplement is wholly
based on a new, distinct, or different transaction or
occurrence. 2 7

But narrow or broad, the purpose of the relation-back doctrine is to determine
not when, but on what limitations runs. Because the doctrine does not impede
the running of [**13] limitations on health care liability claims, it is not,
under Chilkewitz, an "other law", the application of which is forbidden. Even
apart from Chilkewitz, because the doctrine determines "the action" that must
be timely filed, its application is a matter of necessity. 322 S.W. 3d 395, 399.

Furthermore, the limitations period should be tolled if there is a determination that

Plaintiff misidentified the Defendant in the original petition. "Misidentification", is the

naming of an existing person or entity under the mistaken belief that that person is the

correct party. The Texas Supreme Court has held that the statute of limitations will be

tolled in misidentification cases if there are two separate, but related, entities that use a

similar trade name and the correct entity had notice of the suit and was not misled or

disadvantaged by the mistake. Flour Bluff IS.D. v. Bass, 133 S. W3d 272, 274 (Tex.

2004).

12
D. UTSW Had Notice of the Suit when Plaintiff's Original Petition was Filed
and served on UT System's General Counsel

UTSW's alternative argument relating to failure of Appellees to use due

diligence in obtaining service on UTSW, does not apply in this case. The purpose

of service is to provide notice of the suit. UTS W had notice of the suit when

UT System's General Counsel, Daniel H. Sharphorn, J.D. was served with

citation on July 18,2016 (CR117-118, 82). According toUT System's website,

the Office of their General Counsel provides comprehensive legal services to and

for their 14 UT institutions, and manages litigation services provided by the

Attorney General's Office and outside counsel. (CR135-137) (App. B). UTSW is

one of 14 UT institutions. (CR120-123) (App. A). In addition, Jason Warner,

Assistant Attorney General, Office of Attorney General's was UT System's

Counsel related to Appellees original petition and was UTSW's for the amended

petition. (CR 19-22, 149-152).

In Appellees' case, the tolling doctrines of misnomer and/or

misidentification allows an abatement of the proceeding until the misnomer is

corrected. Reddy Partnership/5900 North Freeway LP v. Harris County

Appraisal District, 370 S.W. 3d 373, 55 Tex. Sup. Ct. J. 1099, 1101 (Tex. 2012).

13
 PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court

affirm the trial court's denial of its Plea to the Jurisdiction and Motion for

Summary Judgment, and such further relief, both at law and in equity, to which

they may be justly entitled.

Respectfully submitted,

!si'Br~ r. w~
Brenda J. Williams
State Bar No. 21515300
Bank of America, Oak Cliff Tower
400 South Zang, Suite 1200
(214) 946-0865 Tel
(214) 948-3038 Fax
bwilliams@bj williamslaw.com
Attorney for Appellees

CERTIFICATE OF COMPLIANCE

I hereby certify that this Appellees' Brief word count is in accordance with
Tex. R. App. P. 9.4.
Is! 'Br~..T. W~
Brenda J. Williams

CERTIFICATE OF SERVICE

I do hereby certify compliance with Tex. R. App. P. 9.2 and 9.5(b). A true and
correct copy of the foregoing instrument has been served on all counsel, by
electronic transmission to the electronic mail address on file with the electronic filing
manager pursuant to Rule 9.5(b)(1 ). If a party has not designated an electronic mail
address with the electronic filing manager, the party was served a true and correct

14
copy of the foregoing instrument in person, by mail, by commercial delivery service,
by fax or by email, or by such other manner as the Court in its discretion may direct
pursuant to Rule 9.5(b)(2). Service was made on all parties as provided on January
28,2017

Brenda J. Williams

15
 NO. 05-17-01221-CV

]n tbe jf iftb Q!:ourt of £lppeal�
11Ballas, m:exas

THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER,
Appellant,
V.
CHARLES WAYNE TAYLOR and ROSEMARY TAYLOR,
Appellees.

APPENDIX TO APPELEES' BRIEF

Appendix A Texas Education Code Ann.§§ 65.01-65.16; 65.31

Appendix B Website-University of Texas System- The Office of General
Counsel
APPENDIX "A"
 EDUCATION CODE

TITLE 3. HIG�IER EDUCATION

SUBTITLE C. THE UNIVERSITY OF TEXAS SYSTEM

CHAPTER 65. ADMINISTRATION OF THE UNIVERSITY OF TEXAS SYSTEM

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 65.01. DEFINITIONS. In this chapter:
( 1) "System" or "university system fl means The University
of Texas System.
(2) "Board" means the board of regents of The University
of Texas System.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971.

Sec. 65.02. ORGANIZATION. (a) The University of Texas System
is composed of the following institutions and entities:
(1) The University of Texas at Arlington, including:
(A) The University of Texas Institute of Urban Studies
at Arlington; and
(B) The University of Texas School of Nursing at
Arlington;
( 2)The University of Texas at Austin, including:
(A} The University of Texas Marine Science Institute;
(3) The University of Texas McDonald Observatory at
�aunt Locke; and
,:C) The University of Texas School of Nursing at
Austin;
(3) The University of Texas at Dallas;
( 4) The University of Texas at El Paso, including The
University of Texas School of Nursing at El Paso;
(5) The University of Texas of the Permian Basin;
(6) The University of Texas at San Antonio, including the
University of Texas Institute of Texan Cultures at San Antonio;
 (7) The University of Texas Southwestern Medical Center,
includins;:
(A) The University of Texas Southwestern Medical
School at Dallas;
(B) The University of Texas Southwestern Graduate
School of Biomedical Sciences at Dallas; and
(C} The University of Texas Southwestern Allied Health
Sciences School at Dallas;
f8) The University of Texas Medical Branch at Galveston,
including:
(A) The University of Texas Medical School ac
Galveston;
(Bl The University of Texas Graduate School of
Biomed:i.cal Sciences at Galves-con;
(C) The University of Texas School of Allied Health
Sciences at Galveston;
(D) The University of Texas Marine Biomedical
Institute at Galveston;
:EJ The University of Texas Hospitals at Galveston;
a.nd
(Fl The University of Texas School of Nursing at
Galveston;
{9) The University of Texas Health Science Center at
Houston, including:
(A) The University of Texas Medical School at Houston;
(BJ The University of Texas Dental Branch at Houston;
(C) The University of Texas Graduate School of
Biomedical Sciences at Houston;
(D) The University of Texas School of Health
Information Sciences at Houston;
(E} The University of Texas School of Public Health at
Housi:on;
(F) The University of Texas Speech and Hearing
Institute at Houston; and
(G) The University of Texas School of Nursing ac
Houston;
(10) The University of Texas Health Science Center at San
Antonio, including:
 (A} The University of Texas Medical School at San
Ani:on.io;
(B) The University of Texas Dental School at San
Antonio;
IC) The University of Texas Graduate School of
3iomedical Sciences at San Antonio;
(D) The University of Texas School of Allied Health
Sciences at San Antonio; and
(E) The University of Texas School of Nursing at San
Antonio;
(11) The University of Texas M. D. Anderson Cancer Cente=,
including:
(A) The University of Texas M. D. Anderson Hospital;
(B} Tbe University of Texas M. D. Anderson 'Tumor
Institute; and
(C) The University of Texas M. D. Anderson Science
Park; and
(12) The University of Texas Health Science Center--South
Texas, including The University of Texas Medical School--South Texas,
if established under Subchapter N, Chapter 74_
{b) The University of Texas System shall also be composed of
such other institutions and entities as from time to time may b�
assigned by specific legislative act to the governance, contra�,
jurisdiction, or management of The University of Texas Systerr,_

Added by Acts 1973, 63rd Leg., p. 1186, ch. 435, Sec. 1, eff. Aug.
27, 1973. Amended by Acts 1989, 71st Leg., ch. 644, Sec. 2, eff.
June 14, 1989; Ac-cs 2001, Tlth Leg., ch. 325, Sec. 1, eff. Sept. l,
2001.
A.mended by:
Acts 2009, 81st Leg., R.S., Ch. 1341 (S.B. 98), Sec. 5, eff.
June 19, 2009.
Acts 2013, 83rd Leg., R.S., Ch. 179 (H.B. l8H), Sec. 9, eff.
September 1, 2013.

SOBCHAPTER B. ADMINISTRATIVE PROVISIONS
 Sec. 65.11. BOARD OF REGENTS. The government of the university
system is vested in a board of nine regents appointed by the governor
with the advice and consent of the senate. The board may provide for
the administration, organization, and names of the institutions and
entities in The University of Texas System in such a way as will
achieve the maximum operating efficiency of such institutions and
entities, provided, however, that no institution or entity of The
University of Texas System not authorized by specific legislative act
to offer a four-year undergraduate program as of the effective date
of this Act shall offer any such four-year undergraduate program
without prior recorrmendation and approval by a two-thirds vote of the
Texas Higher Education Coordinating Board and a specific act of the
Legislature.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971. Amended by Acts 1973, 63rd Leg., p. 1188, ch. 435, Sec. 2,
eff. Aug. 27, 1973; Acts 1989, 71st Leg., ch. 644, Sec. 3, eff. June
14, 1989.

Sec. 65.12. QUALIFICATIONS; TERMS. Each member of the board
shall be a qualified voter; and the members shall be selected from
different portions of the state. The members hold office for
staggered terms of six years, with the terms of three expiring
Eebrua.r:y 1 of odd-numbered years.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, arc. 1, Sec. 1, eff. Sept.
1, 1971. Amended by Acts 1983, 68th Leg., p. 2837, ch. 484, art.
III, Sec. 1, eff. June 19, 1983.

Sec. 65.13. BOARD OFFICERS. The board .shall elect a chairman
from its members to serve at the will of the board. The comptroller
shall be the treasurer of the university system.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
l, 1971. Amended by Acts 1997, 75th Leg., ch. 1423, Sec. 5.16, eff.
Sept. 1, 1997.
 Sec. 65.14. EXPENSES. The reasonable expenses incurred by
members of the board in the discharge of their duties shall be paid
from the available university fund.

Acts 1971, 62nd Leg., p. 3144, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971.

Sec. 65.15. SEAL. The board may make and use a common seal and
may alter it at will.

Acts 1971, 62nd Leg., p. 3145, ch. 1024, art. 1, Sec. 1, eff. Sept.
1, 1971.

Sec. 65.16. SYSTEM CENTRAL ADMINISTRATION OFFICE; EXECUTIVE
OFFICER. (a) The board shall establish a central administration of
the university system to provide oversight and coordin ation of the
acti viU. es of the system and each component institution within the
system.
(bl The board shall appoint a chief executive officer and such
other executive officers of the system central administration as the
board considers appropriate. The board shall determine each
officer's term of appointment, salary, and duties.
(c) Subject to the power and authority of the board, the chief
execu�ive officer is responsible for the general management of the
university system within the policies of the board and for making
recommendations to the board concerning the organization of the
universit y system and the appointment of the chief administrative
officer for each component institution within the system.
(d) In addition to other powers and duties provided by this
code or other law, the central administrat.ion of the system shall
recommend policies and rules to the governing board of the system to
ensure conformity with all laws and rules and to provide uniformity
in data collection and financial reporting procedures.

Added by Acts 1989, 71st Leg., ch. 464, Sec. 1, eff. June 14, 1989.

SUBCHAPTER C. POWERS AND DUTIES OF BOARD
 Sec. 65.31. GENERAL POWERS AND DUTIES. (a) The board is
authorized and directed to govern, operate, support, and maintain
each of the component institutions that are now or may hereafter be
included in a part of The University of Texas System.
(b) The board is authorized to prescribe for each of the
component institutions courses and programs leading to such degrees
as are customarily offered in outstanding American universities, and
to award all such degrees. It is the intent of the legislature that
such degrees shall include baccalaureate, master's, and doctoral
deg.::ees, and their equivalents, but no new department, school, or
degree-program shall be instituted without the prior approval of the
Coordinating Board, Texas College and University System.
(c) The board has authority to promulgate and enforce such
other rules and regulations for the operation, control, and
management of the university system and the component institutions
thereof as the board may deem either necessary or desirable. The
board is specifically authorized and empowered to determine and
prescribe the number of students that shall be admitted to any
courser department, school, college, degree-program, or institution
under its governance.
(d) The board is specifically authorized to make joint
appointments in the component institutions under its governance. The
salary of any person who receives such joint appointment shall be
apportioned to the appointing institutions on the basis of services
rendered.
(e) The board is specifically authorized, upon terms and
conditions acceptable to it, to accept, retain in deposi�ories of its
choosing, and ad,_�inister gifts, grants, or donations of any kind,
from any source, for use by the system or any of the comporn:;mt
insti�utions of the system.
(£) No component institution which is not authorized to offer a
four-year undergraduate program shall offer a four-year undergraduate
program without the specific authorization of the legislature.
(g) The board by rule may delegate a power or duty of the board
to a committee, officer, employee, or other agent of the board.

Acts 1971, 62nd Leg., p. 3145, ch. 1024, art. 1, Sec. 1, eff. Sept.
l, 1971. Amended by Acts 1971, 62nd Leg., p. 3360, ch. 1024, art. 2,
APPENDIX "B"
UT System Offices [ University of Texas System Page 2 of 3

Executive Vice Chancellor: Scott C. Kelley, Ed.O. Systemwide lnfonnalion SeJVices
Business Affairs Website Systemwide Complianc.e
Technology and Information Services
The Office of Business Affaiis works with business officers at the 14 institutions in setting
Texas Medical Dental Schools
and complying with policies and procedures for all business operations and management. Application Service (TMDSAS)
Travel Services
The Office of Business Affairs directs and coordinates the following offices:
University Lilnds

• Controller & Chief Budget_Pfficer
, Hislorically_Underutilized Business (HUB)

Director of Police
Emoloyee Benefits
Employee SeNices
Facilitfes planrcing and construction
Finance
• Systernwide Information SeNices
• Technology and lnform�tion SeNices
• University Lands

The Office of General Counsel
Vrce Chancellor and General Counsel: Daniel H. Sharphorn, J.D.
General Counsel Website

The Office of General Counsel provides comprehensive legal services and professional
expertise to and for System administration and the 14 UT institutions, and coordinates and
manages litigation services provided by the Attorney General's Office and outside counsel.
It also serves as administrator of the UT System medical liability self-insurance ptan and as
ethics advisor for the System.

Additionally, me Office or General Counsel manages and oversees the following functions

• Real Estate Office

Office of Governmental Relations
Vice Chancellor and Chief Governmental Relations Officer: Barry R. McBee, J.D.
Governmental Relations Website

The Offic:e of Governmental Relations monito� governmental affairs affecting higher
education and interacts with state and local governments on behalf of the System and its
institutions. ln collaboration with other UT officials, as well as other nigher education
entities, the office works closely with legislators, legislative staff and state agencies on a
wide variety of issues.

The Office of Governmental Relations directs and coordinates the following office

• The Office of Federal ReJ�

Office of External Relations

http;/1\n'rw.utsystem.cdu/officcs 2/16/2017
The Office of General Counsel I University of Texas System Page 2 of 2

Privacy Fac11tt1e5 Planning and

Tax, Employee Benefits and Ccns_,�"1Jd°ion,
Gi!l Planning
Governmental Relat1ons

Additional Resources
Ct1ecklists
.M�!J(eting and
Document Library ��mmuol,;�JiQ.M

Training Presentations and
Resouices
UT System and Outside Unks
Resources Search for Attorneys & Staff
f SP.arcil by La::;t Name
Search

©20171he Univ=ily of Tcx2s Sysr�n,.
6C l Colorado Sl!eP.t. Auolir., 7 exas /?.-701-2982. (512J 49S--42UD
 The Office of General Counsel I University of Texas System Pagel of2

GE r INVOLVELJ Secvr.h H11s sit'!.

Hor,e News UT institutions Reg.:ents Administration Offices Qu;:mtllm l.-aps

The Office of General Counsel
'lice Chancellor
Join us for the OGC 2017 Legal Conference
General Counsel's Office September 28th & 29th! Resources
Allornevs, Professionals and The Office of General Counsel leads and serves our eight ar.ademic and Checltlitst6:
Staff - F.iv Section
six health institutions and UT System Administration to proactively Catalog Checldis)
!\ttomcys, Professionals and manage legal affairs and sol\le legal problems to achieve UT System's �ts.ts,
Staff - By Specially Area !p Checklists
overall educational mission.
Adm1nisiratJve and
Paraprofessional Staff co,-t,�.::l a.n-9 .P!.Q£1.!rg_mcnt
The Office of General Counsel is divided into five sections. as well as Sohc1:Dtior; Jnlake For.in
Practice Sections specially area subsections:
,!D:surctrice & Jndem.-,rficalion
Business Law
• §.l!f,,iness Law, with specialty areas in: Mcrnorangurri_
c1a1ms and Financial Uligation
, Construction k~I Re.eresenlation PO.fil!l'.
General Law
Con_tracting and Procurement
Health Law OutS-4de Counse!
• Environmental
Real Estate
!ntelle5,_tual Propertv and Tectmology Tra11��ctions :he Office of General J_;_ounsei
Organi231ional Chart
Ig� Emp�e Benigfits and Gift Planning
Specialty Areas
The Othce of General Cocosel
Construction Claims and Financial Llt1gation_ Principles on Legal S1>rvice
Contracts and Contracting • Gen�rnUaw Oe?iv�!)
Resources
• !:te.alth Law. including oversight of: .\.IT_Sy�t�mj;lrana1nn
Contracting <1nd Procurement
Practice Group Resource , The University of Texas System Professional Medical GLudclir.e!i
Pages Ligi_gjfily.J3enefit Plan
UT System Offices
Delegations of Authority for UT , Ris.�_ Manageme!)t Ed_ucation required for au
ln�litutions physicians covered by the Plan
Ethics
Real Estat_�
tr.tellectual Property
•)!)Cn Records
Outside Counsel

https://v.ww.utsystcm.edu/officesigenernl-counsel 2/20/2017