source: Caselaw Access Project

author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

license: Public Domain

text:
    The UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellant, v. The ESTATE OF Darla BLACKMON, By Its Beneficiary Sheila SHULTZ, and Sheila Shultz, Individually, Appellees.
    No. 10-03-00093-CV.
    Court of Appeals of Texas, Waco.
    June 22, 2005.

      Harry Deckard, Asst. Atty. General-Tort Litigation Div., Austin, for appellant.
    Stephen A. Khoury, Dallas, for appel-lees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Introduction

This is an interlocutory appeal of the trial court’s denial of a plea to the jurisdiction by the University of Texas Medical Branch at Galveston (UTMB).

UTMB provides medical services to inmates in Texas Department of Criminal Justice (TDCJ) facilities in Coryell County. An inmate’s daughter seeks wrongful-death and survival damages following her mother’s death from pneumonia while incarcerated at a TDCJ facility. The issue is whether the plaintiff has alleged a waiver of sovereign immunity from suit under the Texas Tort Claims Act (TTCA) by pleading that the death was proximately caused by negligent use of tangible personal property. Tex. Civ. PkaC. & Rem.Code Ann. § 101.021(2) (Vernon 2005). Because we conclude that the plaintiff alleged a claim within the statutory waiver, we affirm the trial court’s denial of the plea to the jurisdiction.

I.

Plaintiffs Second Amended Original Petition alleged:

In July 2000, Darla Blackmon entered the TDCJ’s Substance Abuse Felony Punishment Facility (SAFPF) in Gatesville, Texas for a mandatory stay of approximately nine months for alcoholism treatment. The SAFPF program required Blackmon to remain on site, and Blackmon was dependent on the program for her sustenance and health care needs.

In December 2000, Blackmon became ill with cold/flu symptoms, including cough, respiratory difficulties, nasal discharge, fever, intestinal tract problems, headache, earache, sore throat, hoarseness, nasal stuffiness, and tearing. On January 10, 2001, Blackmon, who was 37 years old, went to the TDCJ/SAFPF medical clinic— operated by UTMB' — as an emergency walk-in patient, complaining that the above symptoms had existed for at least four days. The medical records reveal that Blackmon had suffered from similar symptoms for more than a month. Blackmon was seen by Sheila Ringer, a nurse, who administered only cold medications. Blackmon was not referred to a physician, and Ringer did not order diagnostic tests such as a blood test or x-ray. Also, no antibiotics were prescribed or given to Blackmon.

On January 12, 2001, Blackmon requested medical attention again because of her persisting symptoms. She was seen by Donald Baker, a physician’s assistant, who performed an office examination and prescribed cold medications and Tylenol. Baker did not refer Blackmon to a physician, nor did he order diagnostic tests or prescribe antibiotics.

Because of her persisting and worsening symptoms, Blackmon sought additional medical attention on January 13, 2001 at 11:30 a.m. She was seen by Bonnie Roach, a nurse, who performed an office examination using a thermometer and a stethoscope. Roach recorded a temperature of 103.5 degrees for Blackmon but did not refer Blackmon to a physician, order diagnostic tests, or prescribe antibiotics.

Blackmon’s symptoms became acute and she experienced a significant inability to breathe, and she again sought medical attention on January 13, 2001 at 11:00 p.m. On this occasion, she was seen by John Lancaster, a nurse, who performed an office examination. In his examination, Lancaster used: a pulse oxymeter, which is used to determine oxygen saturation in the lungs; a stethoscope, which is used to detect adverse lung sounds; and a thermometer, which is used to detect fever. Lancaster dispensed cold medications and Tylenol but did not refer Blackmon to a physician, nor did he order diagnostic tests or prescribe antibiotics for Blackmon.

Blackmon was ordered back to her room, and upon returning, her symptoms became even more severe, as her inability to breathe caused her face and skin to turn blue. Crying and hysterical, she begged TDCJ guards for medical attention, but her pleas were refused. Other inmates who knew of Blackmon’s condition began requesting — sometimes shouting — at the guards for medical attention for Blackmon, but the guards ordered these and other inmates who were attempting to help Blackmon to leave her alone and to return to their rooms.

The following morning, January 14, 2002, at approximately 10:00 a.m., Black-mon died in her dorm room by asphyxiation. A UTMB physician performed an autopsy and found bacterial pneumonia to be the cause of Blackmon’s death.

II.

Plaintiff Sheila Shultz, Blackmon’s daughter, individually and on behalf of Blackmon’s estate, brought a negligence action to recover for wrongful-death and survival damages against the following: UTMB, Baker, Roach, Lancaster, Ringer, and James M. West, M.D. UTMB filed a plea to the jurisdiction, asserting that Shultz’s claims did not satisfy the TTCA’s use-of-property requirement. The trial court denied UTMB’s plea to the jurisdiction.

In one issue, UTMB asserts that Shultz did not adequately plead or show that the use of tangible property proximately caused Blackmon’s death and that the trial court erred in denying its plea to the jurisdiction. We will overrule the issue and affirm the trial court’s order.

III.

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the action. Texas Dep’t Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether the trial court has subject matter jurisdiction is a question of law that we review de novo. Texas Natural Resource Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). The plaintiff has the burden of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction. Texas Ass’n Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them liberally in favor of the plaintiff. Texas Dep’t Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004); Texas Ass’n Bus., 852 S.W.2d at 446.

The TTCA provides a limited waiver of sovereign immunity and allows suits against governmental units only in certain narrow circumstances. Texas Dep’t Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). We look to the terms of the TTCA to determine the scope of waiver and then consider the particular facts of the case before us to determine whether the case comes within that scope. Id.; Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996).

The specific TTCA provision under which Shultz alleges waiver provides that “[a] governmental unit in the state is liable for ... personal injury and death so caused by a condition or use of tangible personal property or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Pkac. & Rem.Code Ann. § 101.021(2).

We turn to an examination of Shultz’s pleadings to decide whether she asserts a claim for which sovereign immunity has been waived. Miller, 51 S.W.3d at 587; Jones, 8 S.W.3d at 639.

IV.

In her petition, Shultz alleges that Nurse Roach failed to properly use or misused a diagnostic medical tool — a stethoscope — in assessing Blackmon’s condition, that she negligently interpreted the medical data or information reflected by the stethoscope, that had she properly used the stethoscope, she would have detected Blackmon’s severe pneumonia, and had pneumonia been detected, Blackmon’s life could have been saved. Shultz also alleges that Nurse Lancaster failed to properly use or misused diagnostic medical tools — a stethoscope to detect adverse lung sounds and a pulse oxymeter to determine oxygen saturation in the lungs — in assessing Blackmon’s condition, that he negligently read or interpreted the medical data or information reflected by the stethoscope and pulse oxymeter, that had he not negligently used the stethoscope and pulse ox-ymeter but had correctly used them, he would have detected Blackmon’s severe oxygen deprivation and life-threatening lung sounds and her advanced pneumonia, and Blackmon’s life could have been saved.

A.

Texas courts have struggled for over two decades with the TTCA’s use-of-property requirement. See Miller, 51 S.W.3d at 589; id. at 589-91 (Hecht, J., concurring); id. at 593-95 (Enoch, J., dissenting); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998) (“The requirement of causation is more than mere involvement, although exactly how much more has been difficult for the courts to define.”); University of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994) (referring to the courts’ “long and arduous history” in construing section 101.021(2)). For the “use” of tangible personal property to occur, the actor must put or bring the property into action or service, or employ the property for or apply it to a given purpose. Miller, 51 S.W.3d at 588. Because health care providers in state medical facilities use tangible personal property nearly every time they treat a patient, the use alone of the property is insufficient to establish a waiver of sovereign immunity. Id.; Clark, 923 S.W.2d at 585-86. The property must do more than furnish the condition that makes the injury or death possible, and the use or condition of the property must not be too attenuated geographically, temporally, and causally from the injury or death. Bossley, 968 S.W.2d at 343. The personal injury or death must be proximately caused by the use of tangible property. Tex. Crv. PRAC. & Rem.Code Ann. § 101.021(2); Bossley, 968 S.W.2d at 343.

The use-of-property causation requirement “is more than mere involvement.” Bossley, 968 S.W.2d at 348. Using the property must have “actually caused” the injury. Miller, 51 S.W.3d at 588 (citing Texas Natural Resource & Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex.2001)). The supreme court’s use of the phrase “actually caused” in White was in the context of its rejection of a claim based on the failure to use property (non-use): “the equipment’s use must have actually caused the injury.” White, 46 S.W.3d at 869 (citing Bossley, 968 S.W.2d at 342-43). The injury must be caused by actual use of the property, not by the failure to use it. Id. The court in White did not expressly or implicitly abandon the TTCA’s proximate-cause requirement for a different standard such as immediate cause, direct cause, or sole cause. See Michael v. Travis County Housing Auth., 995 S.W.2d 909, 912 (Tex.App.-Austin 1999, no pet.) (“The supreme court has consistently construed the causation requirement in section 101.021(2) to be one of proximate cause, not a different standard such as immediate cause, direct cause, or sole cause.... ”). White in turn cited Bossley, which discussed and applied proximate cause. Bossley, 968 S.W.2d at 342-43.

The court’s most recent iteration of “actually caused” occurred in Dallas Area Rapid Transit v. Whitley, a case involving a city bus and a passenger who was assaulted by third parties after the driver told him to get off the bus after a disturbance caused by another passenger. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex.2003). In finding that the plaintiffs injuries did not arise from the use of the bus, but rather from the driver’s failure to supervise the public, the court noted that it has consistently required a nexus between the operation or use of a motor-driven vehicle or equipment and a plaintiffs injuries. Id. at 542-43. Quoting White, the court stated that “ ‘the [vehi-clej’s use must have actually caused the injury.’ ” Id. at 543 (quoting White, 46 S.W.3d at 869). The court concluded that, “as with the condition or use of property, the operation or use of a motor vehicle ‘does not cause injury if it does no more than furnish the condition that makes injury possible.’ ” Id. (quoting Bossley, 968 S.W.2d at 343).

B.

In Salcedo v. El Paso Hospital District, the plaintiffs husband went to the hospital’s emergency room with chest pain and was given an examination, including an electrocardiogram. Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex.1983). The electrocardiogram charts showed a classic pattern for a heart attack, but the physician who read the chart failed to recognize the pattern and sent the patient home. Shortly after returning home, the patient suffered a heart attack and died. The supreme court held that the plaintiffs allegation that her husband’s death was proximately caused by the negligent use (misuse) of the electrocardiogram — the improper reading and interpreting of the electrocardiogram charts — alleged a use of tangible personal property and stated a cause of action under the TTCA. Id. at 33. Reading and interpreting are purposes for which an electrocardiogram chart is used or employed in diagnosing heart attack. Id.

The supreme court has stated that Sal-cedo is limited to its facts. Bossley, 968 S.W.2d at 342 (citing York, 871 S.W.2d at 178). The Bossley court’s discussion of Salcedo centered on the Dallas Court of Appeals’ misunderstanding and misapplication of Salcedo: “The court of appeals in this case took our comment in Salcedo to mean that for immunity to be waived, ‘the property ... does not have to be the instrumentality of harm, it need only be involved.’ ” Id. (quoting Bossley v. Dallas County Mental Health and Mental Retardation, 934 S.W.2d 689, 695 (Tex.App-Dallas 1995), rev’d, 968 S.W.2d 339, 343 (Tex.1998)). In reversing the court of appeals, the critical emphasis of the supreme court in Bossley was on the court of appeals’ conclusion that “some involvement of property” was all that was required for sovereign immunity to be waived. Id. at 342-43. The supreme court then engaged in a proximate cause analysis and found that the property at issue — unlocked doors in a county mental health facility through which a patient escaped and killed himself on a freeway by leaping in front of a truck — were too attenuated from the patient’s death to have caused it. Id. The supreme court never said that the unlocked doors had to have been the actual instrumentality of harm. See id.

Salcedo thus remains authoritative in TTCA cases involving allegations of negligent use (misuse) of diagnostic medical equipment; it has not been overruled and continues to be cited by the supreme court and courts of appeals. See Miller, 51 S.W.3d at 589; id. at 589-90 (Hecht, J., concurring); Anderson v. City of San Antonio, 120 S.W.3d 5, 9-10 (Tex.App.-San Antonio 2003, pet. denied) (Marion, J., concurring); Baston v. City of Port Isabel, 49 S.W.3d 425, 428-29 (Tex.App.-Corpus Christi 2001, pet. denied); University of Tex. Med. Branch v. Hardy, 2 S.W.3d 607, 609-10 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

In Hardy, the patient was in the state hospital’s cardiothoracic care unit and was connected to a cardiac monitor that was intended to monitor her heart’s activity and to signal an alarm if any problems occurred. When the cardiac monitor sounded an alarm because of complete heart blockage and heart stoppage, resuscitation efforts did not begin for at least five minutes. While the patient was revived, she suffered severe brain damage and later died. The plaintiff alleged that the hospital employees did not properly oversee the cardiac monitor. In the appeal of the trial court’s denial of the state hospital’s plea to the jurisdiction, the appellate court, relying on Salcedo, held that the plaintiffs allegation of negligence in failing to properly monitor the cardiac monitor was a use of tangible personal property and thus there was a waiver of sovereign immunity under the TTCA:

In the present case, the use of the cardiac monitor directly affected the decedent by monitoring her heart’s activity, and served as an early warning device in case of a problem. The cardiac monitor could only be effective, however, if it was properly monitored at all times. Unfortunately, the person responsible for monitoring the cardiac monitor failed to do so, resulting in the death of the decedent from the very condition that the proper use of the cardiac monitor was intended to avoid.
We find no significant distinctions between the facts before us and the facts of Salcedo insofar as the tangible personal property at issue is concerned. The electrocardiogram in Salcedo and the cardiac monitor here were “put into action or service” and “employed for a given purpose.” There is little doubt that the hospital’s decision to put the cardiac monitor into service for the purpose of monitoring the decedent’s heart, and the hospital employee’s subsequent failure to pay proper attention to the monitor, constitute a use or misuse, of tangible personal property. Furthermore, the relationship between the alleged negligence of the employee and the death of the decedent is in no way attenuated, or weak but rather, is contemporaneous and directly connected.

Hardy, 2 S.W.3d at 610. The supreme court denied UTMB’s petition for review in Hardy.

In Bastón, Port Isabel EMTs responded to an emergency assistance call for the decedent. When the EMTs arrived, they used an EKG monitor to determine if the decedent was experiencing cardiac problems. The plaintiffs alleged that the EMTs misinterpreted the reading of the EKG machine, reading the results as normal when the machine actually indicated the decedent was suffering from cardiac problems. Not having been transported to the hospital, the decedent died later that morning. Port Isabel filed a plea to the jurisdiction, claiming sovereign immunity barred the suit, and the trial court granted the plea. Baston, 49 S.W.3d at 427.

On appeal, the plaintiffs argued that under Salcedo, the misuse of an EKG machine qualifies as a misuse of tangible personal property. Id. at 428. In response, Port Isabel argued that Salcedo could no longer be relied upon in light of the Boss-ley court’s limitation of Salcedo to its facts. The court of appeals rejected Port Isabel’s argument, noting that the Bossley court did not address the question of whether an EKG machine or its graphs would constitute tangible personal property. Id. The court concluded that Salcedo was still a viable statement of the law and that its facts were sufficiently analogous to apply it. Id. at 428-29. The court thus held that the plaintiffs’ allegations of negligent use or misuse of an EKG machine stated a claim under the TTCA. Id. at 429-30. The supreme court denied Port Isabel’s petition for review in Bastón.

C.

Relying on Anderson v. City of San Antonio, UTMB’s principal argument in this appeal is that the supreme court in Whitley and Bossley effectively overruled Salcedo and its progeny such as Baston. See Anderson v. City of San Antonio, 120 S.W.3d 5 (Tex.App.-San Antonio 2003, pet. denied). Anderson directly contradicts Salcedo, Hardy, and Bastón. In Anderson, city EMTs were called to the residence of the decedent, who was experiencing severe chest pain and left-arm numbness. The EMTs performed two EKG tests, using an EKG machine, and determined that the decedent did not need to be taken to the hospital. Later the same day, the decedent again had chest pain, and his family called for EMT assistance. This time he was taken to the hospital, but he died later that night. The plaintiffs alleged that the EMTs negligently interpreted the EKG. Id. at 6. On appeal of the trial court’s dismissal on sovereign immunity, the San Antonio court acknowledged Salcedo and Bastón but asserted that because of Whitley, Sal-cedo was no longer controlling. In its application of Whitley, the court stated:

Applying the law to the facts, the court [in Whitley] noted that the plaintiffs injuries were not caused by the use of the bus; they were caused by the woman and her recruits. Id. [citing Whitley, 104 S.W.3d at 542-43]. While the bus driver’s failure to supervise the woman may have contributed to the plaintiffs injuries, the use of the bus did not. Id.
Similarly, here, Richard Anderson’s death was caused by his cardiac condition and the EMTs’ alleged negligence. It was not, however, caused by use of the EKG machine, itself. In light of Whitley, we no longer believe that Sal-cedo is controlling. We, therefore, hold that sovereign immunity bars the plaintiffs’ suit, thereby depriving the trial court of subject matter jurisdiction.

Anderson, 120 S.W.3d at 9.

We disagree with Anderson’s analysis and application of Whitley, In Whitley, the supreme court actually stated: “We agree that Whitley’s injuries did not arise from the use of the bus. Rather, his injuries arose from the bus driver’s failure to supervise the public, which is insufficient to waive immunity under the Tort Claims Act.” Whitley, 104 S.W.3d at 542-43 (emphasis added). “The gravamen of Whitley’s complaint is that [the assailants’] actions and the bus driver’s failure to supervise the public caused his injuries.” Id. at 543 (emphasis added). It was the lack of a nexus between the use of the bus and Whitley’s injuries that was key; the bus driver’s negligence was in his failure to supervise the public, not in how he was using the bus. See id. And the supreme court never said that the bus itself had to physically injure Whitley.

As the Austin court has stated, Bossley does not require that the property directly inflict the injury or death, but only that a reasonably close causal relationship exists between the use or misuse of the property and the resulting injury or death. See Michael, 995 S.W.2d at 913 (citing Bossley, 968 S.W.2d at 343). In Michael, the Austin Court of Appeals expressly disagreed with another San Antonio court decision: “Koehler interpreted Bossley to require that a premise condition ‘must actually be the instrumentality that causes the plaintiffs harm.’ ” Id. at 915 (quoting San Antonio State Hosp. v. Koehler, 981 S.W.2d 82, 37 (Tex.App.-San Antonio 1998, pet. denied)). The Austin court failed to find such a “sweeping conclusion” in Boss-ley, contesting the Koehler court’s perception that Bossley adopted what the Austin court called such an “extreme standard.” Id.

We agree with Michael; we do not believe that the supreme court — without telling us so, despite many opportunities— has, in Bossley, White, Miller, and Whitley, fashioned a new rule of law in TTCA cases that the property itself must be the actual instrument that physically caused the harm. See id., 995 S.W.2d at 913-15. We believe that the San Antonio court in Koehler and Anderson misapplied Bossley and Whitley. The supreme court’s causation discussions in those cases explained that the TTCA’s use-of-property requirement calls for “more than mere involvement” of property and more than furnishing the condition that makes the injury possible. Whitley, 104 S.W.3d at 543; Bossley, 968 S.W.2d at 342-43. The supreme court requires only a causal nexus between the use of property and a plaintiffs injury. Whitley, 104 S.W.3d at 543. It has never stated that the property— rather than the use of the property — must be the actual instrument of harm. We will adhere to what the supreme court has actually said: the use or misuse of the property — not the property itself — must have caused the injury or death. See id. (“the [vehiclej’s use must have actually caused the injury”); Miller, 51 S.W.3d at 588 {“Using that property must have actually caused the injury.”); White, 46 S.W.3d at 869 (“the equipment’s use must have actually caused the injury.”) (emphases added).

D.

Undoubtedly, Blackmon physically died from severe pneumonia; neither the stethoscopes nor the pulse oxymeter used by the UTMB nurses were the actual physical instruments that killed Blackmon. Resolving this case by finding that Black-mon’s death was “actually caused” by pneumonia and ending the inquiry is, until the supreme court expressly says otherwise, in our view too simplistic for our TTCA jurisprudence and departs from longstanding precedent on the use-of-property requirement in cases involving the misuse of diagnostic medical equipment. That Blackmon’s immediate and direct cause of death was untreated pneumonia does not foreclose the alleged negligent use or misuse of a stethoscope and pulse oxymeter from being a proximate cause of her death under the TTCA.

Shultz alleges that nine hours before Blackmon’s asphyxial death from severe pneumonia, Nurse Lancaster — the last UTMB health care provider to see Black-mon before her death — misused a stethoscope in assessing Blackmon’s condition, that had he properly used the stethoscope, he would have detected Blackmon’s severe and life-threatening lung sounds and pneumonia, and had pneumonia been detected, Blackmon’s life could have been saved. Shultz also alleges that on the same occasion, Nurse Lancaster misused a pulse ox-ymeter to determine oxygen saturation in Blackmon’s lungs, that had he correctly used the pulse oxymeter, he would have detected Blackmon’s severe oxygen deprivation and her advanced pneumonia, and Blackmon’s life could have been saved.

The stethoscope and pulse oxymeter were tangible personal property whose purposes were to assist in an assessment of Blackmon’s lung functioning. Shultz adequately alleges the misuse of the stethoscope and pulse oxymeter on Blackmon: had these tools been properly used, Black-mon’s severe pneumonia would have been detected and she would have received lifesaving treatment, rather than being sent to her dorm room with untreated pneumonia to face death by asphyxiation.

Miller does not compel a different conclusion, as it is readily distinguishable. There the supreme court held that the alleged misuse of medication for severe headaches and nausea that masked the symptoms of the patient’s diagnosable meningitis, which was thus misdiagnosed and left untreated, did not cause his death. Miller, 51 S.W.3d at 587-88. The court found that neither the drugs nor the treatment given to the patient “hurt him or made him worse, in and of themselves.” The alleged error in medical judgment in the misdiagnosis of his meningitis and the passage of time was only an allegation of negligence, not the “use” of tangible property that “caused” injury. Id. at 588.

Focusing on the alleged misuse of the pulse oxymeter, Shultz distinguishes Miller in several respects: Miller was a misdiagnosis case, and the medications allegedly misused were not given diagnostically; they were given to treat symptoms, and there is no indication in Miller that, had the medications been properly used, the patient would not have died. By contrast, in this case, the very purpose of the pulse oxymeter allegedly misused by Lancaster was to evaluate Blackmon’s oxygen saturation in her lungs, and because it was allegedly misused nine hours before her death, Blackmon’s pneumonia was not detected and treated emergently. According to Shultz, had Lancaster used the pulse oxymeter properly, he would have obtained critical lung oxygenation values nine hours before Blackmon’s death. The alleged misuse of the medications in Miller did not harm the patient; but for the alleged misuse of the pulse oxymeter, Blackmon’s pneumonia would have been detected and she would not have died.

In Miller the medications were a mere involvement; here, the pulse oxymeter’s misuse is alleged as a cause in fact: but for the alleged misuse of this property, she would not have died. Blackmon’s death was the very result that the proper use of the pulse oxymeter was specifically intended to avoid. See Hardy, 2 S.W.3d at 610. In Miller there was an alleged error in medical judgment; here, there was not an error in judgment, but misuse of a pulse oxymeter that failed to detect Blackmon’s fatally low oxygenation.

Unlike Miller, the pleadings meet the traditional elements of proximate cause. Shultz alleges that the misuse of the pulse oxymeter was a substantial factor in bringing about Blackmon’s death, and but for the misuse, Blackmon would not have died. And her death by asphyxia caused by lack of oxygenation was an anticipated and foreseeable event, given the purpose for using a pulse oxymeter and particularly in light of Blackmon’s complaints of significant breathing difficulty.

We hold that Shultz has adequately pled that the misuse of the stethoscope and pulse oxymeter by a UTMB nurse actually caused — and was a proximate cause of— Blackmon’s death. A sufficient nexus exists between the alleged negligence in the misuse of the stethoscope and pulse oxym-eter and Blackmon’s death under a traditional proximate-cause analysis, and the alleged misuse, which occurred nine hours before Blackmon’s death, is neither too attenuated temporally nor too weak causally. See Salcedo, 659 S.W.2d at 33; Baston, 49 S.W.3d at 428-29; Hardy, 2 5.W.3d at 609-10.

Because the TTCA’s use-of-property requirement is met, the trial court properly denied UTMB’s plea to the jurisdiction.

Conclusion

We overrule UTMB’s sole issue and affirm the trial court’s denial of UTMB’s plea to the jurisdiction.

Chief Justice GRAY dissents.

TOM GRAY, Chief Justice,

dissenting.

The interlocutory appeal has become moot because the plaintiff, appellee, has dismissed their claims against the defendant, appellant. U.T. takes the position that the general rule that a dismissal can be taken at any time is superseded by the statute that an interlocutory appeal stays all trial court proceedings. Tex. Civ. PRAC. & Rem. Code Ann § 51.014(b) (Vernon Supp. 2004-05). Appellee responds that U.T. is relying on the current statute and this appeal was brought under the former statute that provided that only the commencement of the trial was stayed by an interlocutory appeal. Act of 1985, 69th Leg., ch. 959, § 1, amended by Act. of 2003, 78th Leg., ch. 204, § 1.03 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b) (Vernon Supp. 2004-05)). If we have to rely on the statute, appellee is correct, and U.T. is wrong.

But the issue here is much broader than whether the interlocutory appeal can stay all proceedings in the trial court or just the commencement of a trial date. It is questionable whether the filing of a notice of non-suit is even a “proceeding” within the meaning of the statute. A notice of non-suit is just that — a notice. Once filed, the plaintiff no longer has a claim pending against U.T. Without an underlying claim against the appellant, there is nothing to appeal. There is no case-in-controversy. We have lost jurisdiction because the merits of the appeal are moot. ‘When a cause becomes moot on appeal, all previous orders and judgments should be set aside and the cause, not merely the appeal, dismissed.” Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943); see also Barnett v. Conroe Independent School Dist., 455 S.W.2d 376, 381 (Tex.Civ.App.-Beaumont 1970, no writ).

The majority opinion is nothing more than an advisory opinion. We have no jurisdiction to issue advisory opinions. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933). Further, the majority has it exactly backwards. The correct ruling is that the motion to dismiss is granted because the appeal is moot, and anything we say on the merits of the issue as originally presented is irrelevant.

Because the majority fails to dismiss the appeal and issues a purely advisory opinion, I dissent.

      . The traditional elements of proximate cause are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Cause in fact means that the act or omission was a substantial factor in bringing about the injury or death and, without it, harm would not have occurred. Id. Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his or her negligent act created for others. Id.

        . In York, the court noted that the waiver of immunity in Salcedo arose from the governmental unit's misuse of the electrocardiogram. York, 871 S.W.2d at 178; see Bossley, 968 S.W.2d at 342.

      . In his dissent, Justice Abbott noted, “While it is true that the doors did not injure Bossley by actually physically striking him, that is not the test. The test is simply whether the doors were a proximate cause of Bossley’s injury.” Id. at 345 (Abbott, J., dissenting).

      . In a concurring opinion in Anderson, Justice Marion disagreed with the majority’s treatment of Salcedo:

      Because the majority holds that the Texas Supreme Court's decision in Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex. 1983) is no longer controlling case law, I disagree and write separately. We are bound to follow Salcedo unless the Texas Supreme Court overrules it. Although having had ample opportunity to do so, the Supreme Court has not overruled its holding in Salcedo. See University of Texas Med. Branch at Galveston v. York, 871 S.W.2d 175, 178 (Tex.1994); Dallas County Mental Health v. Bossley, 968 S.W.2d 339, 342 (Tex.1998); see also Texas Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 595 (Tex. 2001) (Enoch, J., dissenting). With the exception that the alleged actions in Salcedo occurred in a hospital setting rather than in a setting involving EMTs, the facts in Salce-do are virtually the same facts as in this case. Therefore, I would apply Salcedo’s holding here and hold that the EMTs’ use of the EKG machine was the use of tangible personal property and, therefore, immunity is waived. See Salcedo, 659 S.W.2d at 33.

        Anderson, 120 S.W.3d at 9-10 (Marion, J., concurring). But because the EMTs were immune under a TTCA waiver exception found in section 101.062 for EMTs responding to a 9-1-1 emergency call, she would have affirmed the trial court's dismissal on that basis. Id. at 10 (Marion, J., concurring).

      . Suppose instead that, immediately after Whitley got off the bus, the bus driver ran a red light, causing a car to swerve to miss the bus, but in doing so, the car hit and injured Whitley. Under Anderson, because the bus didn’t hit Whitley, he would not have a claim under the TTCA. Surely the use of the bus in running the red light would be a cause of Whitley’s injury.

      . We make no judgment on the merits of the case or on the anticipated evidence — those determinations are for the factfinder. See Hardy, 2 S.W.3d at 610.

      . In the past we have had so few opinions withdrawn that no particular problems were created if the opinions were withdrawn by an order separate from the new opinions being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.
      Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the prior opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000).
      This is a simple procedure for the convenience of anyone reading the opinions to understand, and easily determine which opinion is the Court's final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this dissenting opinion.
      The Court’s opinion affirming the trial court’s judgment, the judgment, and Justice Vance’s dissenting note, all dated October 13, 2004, were withdrawn by a divided court on April 27, 2005 in a written order, from which Chief Justice Gray dissented because a new opinion did not simultaneously replace the earlier one. The Court’s- opinion, Chief Justice Gray's dissenting opinion, and the judgment of this date are substituted in place of the opinion and judgment issued on October 13, 2004.


author: FELIPE REYNA, Justice.

text:
    SOMERVELL COUNTY HEALTHCARE AUTHORITY d/b/a Glen Rose Medical Center Nursing Home, Appellant, v. Joyce SANDERS, Individually and as Personal Representative of the Estate of Edwin H. Clayton, Deceased, Appellees.
    No. 10-04-00077-CV.
    Court of Appeals of Texas, Waco.
    June 22, 2005.

      Alexis J. Fuller Jr., Davis & Davis, P.C., Austin, for appellant.
    Jill Berni Herz, Jill Berni Herz PC, Dallas, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice GRAY concurs in the opinion other than the discussion of how this opinion is “consistent” with prior opinions of this Court. A careful analysis of those prior opinions belies the statements made in that portion of the opinion).
   OPINION

FELIPE REYNA, Justice.

Somervell County Healthcare Authority d/b/a Glen Rose Medical Center Nursing Home (Nursing Home) appeals the trial court’s denial of its plea to the jurisdiction premised on sovereign immunity. Because the pleadings do not allege that the death in question was caused by a condition or use of tangible personal or real property, we will reverse and render.

Edwin H. Clayton was a resident of the Glen Rose Medical Center Nursing Home (Nursing Home), a wholly owned subsidiary of the Somervell County Healthcare Authority. While there Clayton slipped and fell on urine that had accumulated next to his toilet, and as a result fractured his hip. He was taken to the hospital and remained there after hip surgery. Two months after his fall, he developed sepsis from a decubitus ulcer and died.

Joyce Sanders, acting individually and as the personal representative of Clayton’s estate, filed a wrongful death and survival action under the Texas Tort Claims Act (TTCA) against the Nursing Home, alleging that the Nursing Home was negligent and grossly negligent because it failed to address Clayton’s high risk for falls, and it negligently prescribed and administered anticholinergic medications which exacerbated Clayton’s condition. The Nursing Home filed a plea to the jurisdiction, asserting that it is a governmental unit, and as such, is entitled to sovereign immunity as to all of Sanders’s claims. Tex. Civ. Prac. & Rem.Code AnN. § 101.001(3)(B) (Vernon Supp.2004). The trial court denied the Nursing Home’s plea, and the Nursing Home filed this interlocutory appeal.

Sovereign immunity has two components: immunity from liability and immunity from suit. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Section 101.021 waives the State’s immunity from liability under certain circumstances. Tex. Civ. PRác. & Rem.Code Ann. § 101.021 (Vernon 1997). The TTCA also waives the State’s immunity from suit as to the extent of liability created by [the TTCA]. Tex. Civ. PRác. & Rem.Code § 101.025 (Vernon 1997). Sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction because, absent the State’s consent to sue a governmental entity, a trial court has no basis for jurisdiction. Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex.1999). A trial court’s subject-matter jurisdiction is a question of law and subject to de novo review. Tex. Nat Res. Conservation Com’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). There is no dispute that the Nursing Home is a governmental entity, and as such is entitled to sovereign immunity. See Snelling v. Mims, 97 S.W.3d 646, 653 (Tex.App.Waco 2002, no pet.). The only question is whether Sanders pled facts sufficient to waive immunity under the TTCA.

Sanders brought suit against the Nursing Home under the portion of the TTCA that waives immunity from liability for personal injury caused by “a condition or use of tangible personal or real property.” Tex. Civ. Prao. & Rem.Code § 101.021(2). Sanders bears the burden of pleading facts to establish that the condition or use of tangible personal or real property proximately caused the damages alleged. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). We do not look at the merits of the case, rather we review the pleadings in favor of Sanders and accept the pleadings’ factual allegations as true. Davis v. Burnam, 137 S.W.3d 325, 331 (Tex.App.-Austin 2004, no pet.) (citing Texas Ass’n of Bus. v. Tex. Air Control Board, 852 S.W.2d 440, 443 (Tex.1993)). However, we are not constrained to the pleadings only. Jones, 8 S.W.3d at 639. We may also consider any evidence raised by the parties if necessary to resolve the jurisdictional issue. Tex. Dept. of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex.2001).

Parts of Sanders’s amended original petition alleges the following facts: the Nursing Home should have recognized that Clayton was at a high risk for falls; the Nursing Home failed to address Clayton’s fall risk; the Nursing Home exacerbated Clayton’s fall risk by administering anticholinergic medications; the Nursing Home failed to recognize, diagnose, and treat Clayton’s depression; the Nursing Home failed to provide Clayton proper medical care. The petition states that these facts proximately caused Clayton’s injury, ultimately resulting in his death.

Most of Sanders’s allegations involve the failure of the Nursing Home to act and do not involve the use of tangible personal or real property. The pleading of these “failures to act” are not sufficient to waive the Nursing Home’s sovereign immunity. Snelling, 97 S.W.3d at 654 (holding that plaintiffs petition alleging that the defendant nursing home failed to diagnosis, treat, report injuries, and supervise employees was not sufficient to waive immunity); Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996) (holding the failure to administer an injectable drug is a non-use of tangible property and does not fall under the waiver provisions of the TTCA); U. of Texas Med. Branch v. York, 871 S.W.2d 175, 176 (Tex.1994) (holding that information in medical records not tangible personal property). The only facts in the pleading that arguably involve a condition or use of property is the Nursing Home’s administration of anticholi-nergic medicine to Clayton.

Sanders argues that the prescription and administration of anticholinergic medications to Clayton was inappropriate for someone with Clayton’s condition. She relies on Quinn to support her position. Quinn v. Mem’l Med. Ctr., 764 S.W.2d 915, 917 (Tex.App.-Corpus Christi 1989, no writ). In that case, the Corpus Christi Court of Appeals held that “dispensing a drug by a hospital pharmacy is a use of tangible personal property.” Id.

However, the Nursing Home does not prescribe or dispense drugs to its residents. On the contrary, it is responsible only for distributing the drug to the resident according to the prescribing doctor’s directions. Clayton’s medication was prescribed by Clayton’s personal physicians and dispensed by a pharmacist, none of whom are the Nursing Home’s employees.

Improper use of medication is characterized as a use of tangible property. See Thomas v. Harris County, 30 S.W.3d 51, 56 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Yet, Sanders does not argue that the Nursing Home gave the drugs in an improper manner contrary to the orders of the prescribing doctor. Sanders argues that Clayton’s medication caused symptoms of sedation, drowsiness, and dizziness, and that because the Nursing Home was aware of these side effects, it should have provided proper medical care and supervision. The essence of Sanders’s complaint is that the Nursing Home failed to monitor Clayton while taking his medication, and as a result, he slipped and fell. The failure to monitor, like the failure to diagnose, is not a claim involving the condition or use of tangible property. See Snelling, 97 S.W.3d at 654.

Because Sanders’s claim does not fall under section 101.021(1), the Nursing Home’s immunity from liability has not been waived. Tex. Civ. Prac. & Rem.Code § 101.021(1). Likewise, its immunity from suit has not been waived. Tex. Civ. Prac. & ReM.Code § 101.025. Accordingly, Sanders’s suit is barred by sovereign immunity.

Sanders requests that in the event we find that her pleadings are insufficient to state a waiver of immunity, we remand this cause to the trial court so that she can amend her pleadings and cure the defect. While Sanders has a right to amend her pleadings to attempt to cure jurisdictional defects, the facts and evidence in Sanders’s petition and first amended petition lead us to conclude that it is impossible for Sanders to amend the pleadings in a manner which would establish a waiver of immunity. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004); Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002); Livecchi v. City of Grand Prairie, 109 S.W.3d 920, 923 (Tex. App.-Dallas 2002, pet. dism’d by agr.); City of San Benito v. Ebarb, 88 S.W.3d 711, 724 (Tex.App.-Corpus Christi 2002, pet denied).

This opinion is consistent with our holdings in Tex. A & M Univ. Sys. v. Koseoglu and Tex. Parks and Wildlife Dept. v. Lowrey. 167 S.W.3d 374, 381 (Tex.App.-Waco 2005, pet. filed); 155 S.W.3d 456 (Tex.App.-Waco 2004, pet. filed). In each instance, we recognized that there are two aspects to the rule. Once a pleading has been declared deficient, either by the trial court or by the appellate court, the court should first ask whether it is possible for the plaintiff to cure the defect. Koseoglu, at 381,. If the pleading is found to be incurable, i.e., the allegations “affirmatively negate” a claim under the TTCA, then dismissal is appropriate. Ramirez, 74 S.W.3d at 867; Koseoglu, at 381. Secondly, if the pleading is curable, then the court should ask whether the plaintiff had a reasonable opportunity to cure the defect. Koseoglu, at 381. If so, then dismissal is appropriate. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27. If not, then the court should allow the plaintiff an opportunity to amend and cure the defect. See Koseoglu, at 381, (citing Harris County v. Sykes, 136 S.W.3d 635, 639-40 (Tex.2004)).

In Koseoglu, we found that the pleading did not affirmatively negate a claim and remanded the cause to allow Koseoglu to amend his pleadings. Koseoglu, at 384 (finding that the mere filing of a plea to the jurisdiction coupled with the passage of time does not equal an opportunity to cure a defective pleading). In Loivrey, the trial court denied the Department’s plea to the jurisdiction, but we sustained it. 155 S.W.3d at 459. Following Harris County v. Sykes, we remanded to allow Lowrey to re-plead. Id. Here, we conclude that Sanders cannot amend her pleadings because the allegations affirmatively negate a claim under the TTCA; thus, we render a judgment in favor of the Nursing Home.

We reverse the order denying the plea to the jurisdiction and render a judgment of dismissal.

      . A decubitus ulcer is a pressure sore or what is commonly known as a "bed sore.”

      . According to Sanders, anticholinergic medicines impede the impulses of parasympathetic nerve fibers.


text:
    The STATE of Texas, Appellant, v. Bonnie Jean BISSING, Appellee.
    No. 10-05-00143-CR.
    Court of Appeals of Texas, Waco.
    June 29, 2005.
    Brad Newsom, Meridian, for appellant.

      Dan V. Dent, Hill County Dist. Atty., Hillsboro, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

The State appeals from an adverse ruling on Bonnie Jean Bissing’s pretrial suppression motion. The State’s brief is overdue. The Clerk of this Court notified the parties that the State’s brief was overdue in this cause and that the appeal would be dismissed if an appropriate response was not filed within ten days. The Court has received no response. Accordingly, we will dismiss the appeal.

When the appellant’s brief is past due in a criminal appeal, Rule of Appellate Procedure 38.8(b) generally requires the appellate court to abate the appeal for a hearing in the trial court. The purpose of this rule is to protect an appellant from the failure of counsel to file a brief on the appellant’s behalf. See Wade v. State, 31 S.W.3d 723, 725 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); Coleman v. State, 774 S.W.2d 736, 738 (Tex.App.-Houston [14th Dist.] 1989, no pet.).

However, the abatement requirement of Rule 38.8(b) does not apply when a criminal defendant is representing himself on appeal. See Lott v. State, 874 S.W.2d 687, 688 n. 2 (Tex.Crim.App.1994); Scott v. State, 167 S.W.3d 62, 65 (Tex.App.-Waco 2005, no pet. h.); Wade, 31 S.W.3d at 725; Coleman, 774 S.W.2d at 738-39. Because the State has no constitutional right to counsel, we likewise hold that an appeal need not be abated under Rule 38.8(b) when the State is the appealing party and has failed to file its brief. See State v. Garza, 88 S.W.3d 353, 354 (Tex.App.-San Antonio 2002, no pet.) (per curiam); State v. Palacios, 968 S.W.2d 467, 468 (Tex.App.-Fort Worth 1998, no pet.) (per curiam).

Rather, if the State’s brief is overdue in such a case and the State fails to file its brief after being given notice and an opportunity to do so, then this Court may dismiss the State’s appeal for want of prosecution in accordance with the Court’s inherent authority. See Peralta v. State, 82 S.W.3d 724, 725 (Tex.App.-Waco 2002, no pet.); see also Brager v. State, No. OSOS-OS, 2004 WL 3093237, at *2-3, 2004 Tex. Crim.App. LEXIS 2203, at **5-9 (Tex. Crim.App.2004) (not designated for publication).

Accordingly, because the State has failed to file its brief, we dismiss this appeal.

Chief Justice GRAY concurs in the judgment with a note.

      . In fact, the trial court has forwarded to the Clerk of this Court a copy of the State’s motion to dismiss the case against Bissing, which the State filed with the trial court.

       ("Chief Justice Gray concurs in the judgment of dismissal of this appeal. This is an interlocutory appeal which does not dispose of the underlying case but will operate to return jurisdiction to the trial court for further proceedings not inconsistent with this Court’s opinion. I would issue the mandate with the issuance of this opinion to expedite the ultimate disposition of this case. Alternatively, and a better and quicker way to dispose of this case, I would abate this appeal. The trial court would then have jurisdiction to dismiss the case. We could then immediately dismiss the appeal as moot.”)


author: BEA ANN SMITH, Justice.

text:
    James Howard MYERS, Appellant, v. STATE of Texas, Appellee.
    No. 03-04-00443-CV.
    Court of Appeals of Texas, Austin.
    July 12, 2005.
    Steven J. Duskie, Lindley, Wiley & Duskie, P.C., Killeen, John T. Beliveau, Law Office of John T. Beliveau, Blanco, for Appellant.
    Karen R. Bartlett, Asst. Atty. Gen., Bankruptcy & Collections Division, Austin, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

In this appeal, we are asked to determine whether the agent of a club holding a mixed beverage permit is liable for mixed-beverage taxes assessed by the Texas Comptroller of Public Accounts. James Howard Myers was one of two officers of Little G’s, a club that obtained permits from the state to serve alcohol. The tax code requires a mixed-beverage “permit-tee” to pay taxes on the sale of alcohol. Tex. Tax Code Ann. § 183.021 (West 2002). Myers admits that he was an agent of Little G’s but contends that, under the tax code, permittee refers only to the permit holder and not to its agents. The trial court granted summary judgment in favor of the State and entered a judgment against Myers and the other officer in the amount of $64,218.99 for the tax due, including interest and penalties, plus $3,000 in attorneys’ fees. We find that the definition of permittee in the tax code does not unambiguously define who may be held liable for the mixed-beverage tax. Therefore, we refer to the Comptroller’s rule concerning administration of the mixed-beverage tax, which states that only the permit holder may be liable for the tax. See 34 Tex. Admin. Code § 3.1001(a)(6) (2005). Consequently, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

BACKGROUND

Little G’s was formed for the purpose of providing “pleasure, entertainment, and recreation” to its members. The club’s rules specifically state that the association would be governed by two officers — a president and a secretary. The club’s rules required that these officers prepare and file an application with the Texas Alcoholic Beverage Commission (the “Commission”) for the following permits for the sale of mixed beverages: a private club registration permit, a private club late hours permit, and a beverage cartage.

Myers, the secretary of the club, and club president Veda Renee Rowell signed the application for these permits. The Commission requires an applicant for a private club permit to submit to a criminal background check. In addition to the background check, an applicant must provide notice of his intent to obtain or renew a permit and must complete a publisher’s affidavit enclosing a copy of the published notice. The notice must state the type of permit applied for, the location of the place of business, the name and title of each officer, and any assumed or trade name. Myers submitted and signed a personal history sheet that subjected him to the required criminal background check. Little G’s published notice listed Myers as the secretary of the association. After Little G’s satisfied the application requirements, the Commission granted the mixed-beverage permits on April 15, 1998. The permits were subsequently renewed in 1999, 2000, and 2001. Myers continued to act as an agent of Little G’s in the renewal process.

Section 183 of the tax code imposes a tax on the gross receipts a permittee receives from the sale of mixed beverages. Tex. Tax Code Ann. § 183.021. In addition, a permittee is required to file a tax return stating its total gross receipts and to pay the Comptroller the amount due. Tex. Tax Code Ann. §§ 183.022(b), 183.023 (West 2002).

The Comptroller audited the association in 2000 for the period of April 1, 1998, through October 31, 2000, and established a mixed-beverage tax liability in the amount of $45,381.05. The total tax liability involved in this suit also included estimated monthly tax returns beginning August 1, 2001, and ending October 31, 2001. The State filed suit on June 10, 2002, against Rowell and Myers, alleging that they were liable under the provisions of chapter 183 of the tax code for the mixed-beverage gross receipts taxes, interest, and penalties.

In its amended motion for summary judgment, the State asserted that Rowell and Myers were hable for the taxes due because the tax code specifically incorporates the definition of permittee in section 1.04 of the alcoholic beverage code. See Tex. Tax Code Ann. § 183.001(a) (West 2002). The alcoholic beverage code defines permittee as “a person who is the holder of a permit provided for in this code, or an agent, servant, or employee of that person.” Tex. Aleo. Bev.Code Ann. § 1.04(11) (West 1995). In response to the State’s contention, Myers urged that the tax code’s definition of permittee in section 183.001(b)(1), which does not mention agents, is controlling because it is the more specific definition of a permittee. See Tex. Tax Code Ann. § 183.001(b)(1) (West 2002). The trial court granted summary judgment in favor of the State.

DISCUSSION

On appeal, Myers contends that the State relied on the more general definition of permittee in the alcoholic beverage code, rather than the more specific definition of permittee in the tax code that refers only to the permit holder and not its agents. Myers asserts that, as an agent of a mixed-beverage permit holder, he is not subject to liability for unpaid mixed-beverage gross receipts taxes.

In deciding this case, we must determine whether the definition of permittee in the tax code, which incorporates the definitions in the alcoholic beverage code, is meant to include a permit holder’s agent. Issues of statutory construction are legal questions, thus we review a trial court’s construction of a statute de novo. In re Forlenza, 140 S.W.3d 373, 376 (Tex.2004). In construing a statute, our ultimate purpose is to discover and give effect to the legislature’s intent in enacting it. In re Canales, 52 S.W.3d 698, 702 (Tex.2001). We presume that the legislature intended a just and reasonable result in enacting a statute and that the entire statute is intended to be effective. Tex. Gov’t Code § 311.021(2), (3) (West 2005); see also Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001). In determining legislative intent, we should consider the entire statute, not merely confine our review to words, phrases, or clauses in isolation. Meritor, 44 S.W.3d at 90. Courts should not assign a meaning to a provision that would be inconsistent with other provisions of the act. Clint Indep. Sch. Dist. v. Cash Invs., Inc., 970 S.W.2d 535, 539 (Tex.1998). We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001).

The portion of the tax code under review here is the definition section of chapter 183. Section 183.001 provides in pertinent part:

(a) The definitions in Section 1.04, Alcoholic Beverage Code, apply to this chapter.
(b) In this chapter:
(1) “Permittee” means a mixed beverage permittee, a private club registration permittee, a private club exemption certificate permittee, a private club late hours permittee, a daily temporary private club per-mittee, a private club registration permittee holding a food and beverage certificate, a daily temporary mixed beverage permittee, a mixed beverage late hours permittee, a mixed beverage permittee holding a food and beverage certificate, or a caterer permittee.

Tex. Tax Code Ann. § 183.001(a)-(b)(l).

Section 1.04 of the alcoholic beverage code, which is expressly incorporated into section 183.001 of the tax code, provides a more expansive definition of a permittee as “a person who is the holder of a permit provided for in this code, or an agent, servant, or employee of that person.” Tex. Aleo. Bev.Code Ann. § 1.04(11). Myers insists that a conflict arises between the definition set forth in the alcoholic beverage code’s definition of permittee, which includes agents, and section 183.001(b)(1), which does not.

In considering the entire statute, we find that the two definitions of permittee incorporated into the tax code — the definition from the alcoholic beverage code and the tax code’s additional definition — are inconsistent. If the meaning of a provision is doubtful or ambiguous, the construction placed upon a statutory provision by the agency charged with its implementations is entitled to serious consideration. Tex. Gov’t Code Ann. § 311.023(6) (West 2005); Texas Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 21 (Tex. 1996). Therefore, we turn to the rules promulgated by the Comptroller concerning the assessment of the mixed-beverage tax.

Construction of a statute by an administrative agency charged with its enforcement is entitled to consideration as long as it is reasonable and does not conflict with the plain language of the statute. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993). Courts should construe administrative rules like statutes and, unless the rule is ambiguous, follow the rule’s clear language. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). Courts should defer to an agency’s interpretation of its own rules, unless the agency’s interpretation is inconsistent with the regulation. Id. at 254-55. If an agency does not follow the unambiguous language of its own rules, we must consider its actions arbitrary and capricious. Id. at 255. Allowing an agency to create broad amendments to its rules through adjudication, rather than through its rule making authority, effectively undercuts the Administrative Procedures Act. See Tex. Gov’t Code Ann. § 2001.001-.038 (West 2000 & Supp.2004-05); Rodriguez, 997 S.W.2d at 255-56.

In this case, the Comptroller urges a definition of a permittee that conflicts with one of its own rules. See 34 Tex. Admin. Code § 3.1001(a)(6). The Comptroller’s rule concerning the tax administration of the mixed-beverage tax defines permittee as:

A holder of a mixed beverage permit, a mixed beverage late hours permit, a mixed beverage permit holding a food and beverage certificate, a daily temporary mixed beverage permit, a private club registration permit, a private club exemption certificate permit, a private club late hours permit, a daily temporary private club permit, a private club registration permit holding a food and beverage certificate, or a caterer’s permit issued by the Texas Alcoholic Beverage Commission (TABC).

Id. (emphasis added). The Comptroller’s rule is unambiguous and does not include agents. It presents a reasonable construction of the tax code by defining permittee in a manner that resolves any conflict between the definitions of permittee in the tax code and the alcoholic beverage code. Therefore, we defer to the Comptroller’s rule concerning who may be assessed the mixed-beverage tax. The assessment of the tax against Myers, as agent of a permit holder, conflicts with the rule.

Furthermore, because this case involves the construction of a tax statute, to the extent that there is any doubt concerning the construction of the tax code, courts should strictly construe the applicability of taxation against the taxing authority and in favor of the taxpayer. See Calvert v. Texas Pipe Line Co., 517 S.W.2d 777, 781 (Tex.1974); Texas Utils. Elec. Co. v. Sharp, 962 S.W.2d 723, 726 (Tex.App.-Austin 1998, pet. denied).

Considering that ambiguous tax statutes are construed in favor of the taxpayer, and applying the unambiguous language of the Comptroller’s rule, we hold that Myers, as an agent of a permit holder, is not a holder subject to the tax imposed on mixed-beverage permittees. Therefore, we reverse the judgment of the trial court.

CONCLUSION

We reverse the summary judgment granted in favor of the Comptroller. Because Myers did not have a competing motion for summary judgment, we remand for further proceedings consistent with this opinion.

      . The other officer, Veda Renee Rowell, did not appeal the judgment.

      . Section 183.021 provides:
      A tax at the rate of 14 percent is imposed on the gross receipts of a permittee received from the sale, preparation, or service of mixed beverages or from the sale, preparation, or service of ice or nonalcoholic beverages that are sold, prepared, or served for the purpose of being mixed with an alcoholic beverage and consumed on the premises of the permittee.
      Tex. Tax Code Ann. § 183.021 (West 2002).

      . Myers argues that an officer of an unincorporated association is not liable for its tax debt. In its amended motion for summary judgment, the State abandoned its attempt to impose liability based on Myers’s status as an officer and focused solely on his status as an agent. Because the summary judgment is based on the State’s amended motion for summary judgment, his liability as an officer is not relevant to this appeal.


author: DAVID PURYEAR, Justice.

text:
    The STATE of Texas, Appellant, v. Gilbert N. DAVILA, Appellee.
    No. 03-04-00251-CR.
    Court of Appeals of Texas, Austin.
    July 13, 2005.

      F.C. Schneider, Crim. Dist. Atty., Whitney S. Wiedeman, Asst. Crim. Dist. Atty., Lockhart, for appellant.
    Ray Bass, Bass & Smith, P.C., Austin, for appellee.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

DAVID PURYEAR, Justice.

Appellee Gilbert N. Davila is under indictment for possessing cocaine. See Tex. Health & Safety Code Ann. § 481.115 (West 2003). The State appeals an order granting Davila’s motion to suppress evidence. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp.2004-05). We will affirm the order.

The challenged search was conducted pursuant to a warrant, and the issue presented is whether the facts submitted to the magistrate in the supporting affidavit were sufficient to justify a conclusion that the object of the search was probably on the premises at the time the warrant was issued. See Cassias v. State, 719 S.W.2d 585, 587 (Tex.Crim.App.1986); State v. Bradley, 966 S.W.2d 871, 873 (Tex. App.-Austin 1998, no pet.). The sufficiency of the affidavit is determined by considering the totality of the circumstances set forth within the four corners of the document. Illinois v. Gates, 462 U.S. 213, 234, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Bradley, 966 S.W.2d at 873. The issuing magistrate’s determination of probable cause must be given great deference and will be sustained if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236, 103 S.Ct. 2317; Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004); Bradley, 966 S.W.2d at 873.

The warrant in question was applied for and issued on November 12, 2002. It authorized the search of the premises located at 710 Sabine Street in Lockhart, the seizure of marihuana and items related to the drug trade, and the arrest of Davila and Lori Ann Lopez. The affiant was Lock-hart police officer Richard Torres. The first two paragraphs of the probable cause portion of the affidavit described Torres’s training and experience with respect to unlawful drug trafficking. The affidavit then stated:

Information has been given to your Affiant by a Confidential Informant, hereafter referred to as Cl, for security reasons, regarding cocaine and marijuana being possessed at 710 Sabine Street in the City of Lockhart, Caldwell County, Texas. The aforementioned Cl has provided information regarding narcotics trafficking and transactions to your Affiant in the past. Your Affiant also has knowledge that narcotic transactions occur frequently at this location.
On Tuesday November 12, 2002, Officer Greg Slade, Officer Michael Marr and your Affiant went to 710 Sabine Street in the City of Lockhart, Caldwell County, Texas in order to retrieve the garbage from the address. Upon arrival your Affiant observed the two garbage cans at 710 Sabine Street set out by the curb line for pick up. Your Affiant retrieved the garbage bags that were inside the trash cans at 710 Sabine Street.
Upon inspection of the garbage retrieved from the garbage can at 710 Sabine Street in the City of Lockhart, Caldwell County, Texas your Affiant located (1) gallon size clear bag with a green leafy substance inside the bag. The green leafy substance tested positive for marijuana.
The following personal papers were located with the clear bag with the marijuana residue. A booklet from Seton Health to Mr. Gilbert N. Davila at 710 Sabine Street Lockhart Texas 78644, Tracks booklet to Lori Lopez at 710 Sabine Street Lockhart Texas 78644, Sesame Street Readers Digest to Lori Lopez at 710 Sabine Street Lockhart Texas 78644 and Best Buy Coupon to Gilbert N. Davila at 710 Sabine Street Lockhart Texas 78644.

The warrant was executed on November 15, 2002. Police found a bag containing a white powder that tested positive for cocaine, three firearms, and a cooler with marihuana residue.

In his motion to suppress, Davila relied on the opinion of this Court in Serrano v. State, 123 S.W.3d 53 (TexApp.-Austin 2003, pet. ref'd). There, we held that the issuance of a search warrant was not justified by an affidavit describing: (1) an anonymous tip stating that Serrano was dealing cocaine in Travis County, (2) police records and personal observations establishing a tenuous connection between Serrano and the suspect premises, and (3) the discovery of a plastic bag containing cocaine residue in a garbage can outside the suspect premises. Id. at 63.

Officer Torres described receiving a tip from an anonymous informer “regarding cocaine and marijuana being possessed” at the Sabine Street address. Information received from an anonymous informer is no longer subject to a rigid two-pronged test for veracity and basis of knowledge, but it is nevertheless highly relevant in a totality of the circumstances analysis to consider what an affidavit reveals regarding the credibility of the informer, the reliability of the particular tip, and the basis of the informer’s knowledge. Gates, 462 U.S. at 230, 103 S.Ct. 2317. These issues “usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Id.

The affidavit in this cause contained no facts from which the magistrate could conclude that the informer was credible or the tip was reliable. Although Torres said that the informer had previously given him narcotics trafficking information, he did not say that this information had led to the seizure of controlled substances or had in some other way been proved accurate. The State argues that the accuracy of the earlier information could reasonably be inferred from Torres’s continued reliance on the informer, but we disagree. It is equally reasonable to infer from the officer’s silence regarding the informer’s prior track record that the record was not a good one. Torres’s reliance on the informer reflected, at most, the officer’s opinion that the informer was credible. An officer’s mere assertion that an informer is credible or that a tip is reliable, without facts to support the assertion, is inadequate. Gates, 462 U.S. at 239, 103 S.Ct. 2317.

The affidavit also contained no facts describing the basis for the informer’s purported knowledge. For example, the affidavit did not state whether the informer had actually seen the alleged contraband or was merely repeating hearsay information. Moreover, the affidavit did not say when the informer got the information or when the officer received the tip. Because the affidavit did not say when the tip was received, there was no point of reference for the informer’s claim that marihuana was “being possessed” at the suspect address and thus to support an inference that the information was fresh. See Rosencranz v. United States, 356 F.2d 310, 316 (1st Cir.1966). An affidavit that fails to state when the affiant received the information from the informer, when the informer obtained the information, or when the described conduct took place is insufficient to support issuance of a search warrant. Serrano, 123 S.W.3d at 61 (citing Schmidt v. State, 659 S.W.2d 420, 421 (Tex.Crim.App.1983); Peltier v. State, 626 S.W.2d 30, 32 (Tex.Crim.App.1981); Heredia v. State, 468 S.W.2d 833, 835 (Tex. Crim.App.1971)); cf. State v. Delagarza, 158 S.W.3d 25, 27 (Tex.App.-Austin 2005, no pet.) (anonymous tip received two weeks before search described activities at suspect address that affiant recognized, based on training and experience, as indicative of narcotics trafficking).

Torres’s statement that he “has knowledge that narcotic transactions occur frequently at this location” added no substance to the affidavit. The statement was both conclusory and vague. The officer did not disclose the basis for his asserted knowledge, state exactly where these alleged transactions took place, or reveal how recent this information might have been. A mere conclusory statement gives the magistrate virtually no basis for making a judgment regarding probable cause. Gates, 462 U.S. at 239, 103 S.Ct. 2317.

One pertinent fact recited in the affidavit was the discovery of marihuana residue in the garbage at the Sabine Street address. But as this Court observed in Serrano, garbage containers left outside for collection are readily accessible to the public, including neighbors or passers-by with overflow or undesirable trash and other “unwelcome meddlers.” Id. at 62 (quoting California v. Greenwood, 486 U.S. 35, 54, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (Brennan, J., dissenting)). We concluded in Serrano that “[standing alone, the one-time intrusion into a garbage can revealing cocaine residue in one plastic baggie ... would not justify a finding of probable cause to search” the premises. Id. at 63. As in Serrano, the one-time discovery of a single plastic bag containing marihuana residue in the garbage at 710 Sabine did not establish probable cause to search the house in light of the totality of the other circumstances. Cf. Delagarza, 158 S.W.3d at 27-28 (affiant conducted four garbage searches at suspect premises over ten-day period, finding large quantity of drug paraphernalia each time).

The affidavit vaguely stated that mail addressed to 710 Sabine Street was found “with” the plastic bag containing the marihuana residue. Without more detail, this fact merely served to confirm that the garbage cans belonged to that address. Neither Davila nor Lopez was described in the affidavit as being a seller, user, or possessor of marihuana. That they were the recipients of the mail thus did not contribute to the showing of probable cause to search. Whether the affidavit stated probable cause to arrest them is a question that is not before us.

To summarize, the magistrate in this cause was asked to issue a search warrant on the basis of: (1) a conclusory statement by an informer of unknown credibility that drugs were being possessed at 710 Sabine Street at some unstated time; (2) the affi-ant’s unsupported assertion that narcotics transactions occurred frequently at that address; and (3) the one-time discovery of a plastic bag containing marihuana residue in a garbage can sitting in the street in front of the house. With all due deference to the probable cause determination, the totality of the facts stated in the affidavit did not give the magistrate a substantial basis for concluding that a search of the house would uncover evidence of wrongdoing.

The district court did not err by granting the motion to suppress, and its order is affirmed.