text:
    Alan Wade JOHNSON, Appellant, v. Thomas Alson DAVIS and Gary L. Johnson, Appellees.
    No. 14-04-00206-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 26, 2005.
    Rehearing Overruled Nov. 3, 2005.

      Alan Wade Johnson, Huntsville, pro se.
    Devon Kiritbhai, Mandy Kay MeCary, Austin, for appellant.
    Panel consists of Justices ANDERSON, FOWLER, and FROST.
   OPINION

KEM THOMPSON FROST, Justice.

All fifty states and the federal government have enacted statutes creating DNA databases. At the heart of this case is a prison inmate’s constitutional challenges to the statutory authority of Texas prison officials to collect a blood sample from him for purposes of DNA testing and inclusion in the state’s DNA database. The inmate also challenges the trial court’s order transferring venue of his case and the trial court’s rulings on various discovery matters. Finding a lack of merit in appellant’s constitutional and venue arguments and a lack of merit or a lack of harmful error as to the remaining issues, we affirm the trial court’s judgment.

I. Background

Appellant Alan Wade Johnson (“Johnson”) is an inmate serving a life sentence for a 1994 conviction for aggravated robbery. He is incarcerated in the Texas Department of Criminal Justice, Institutional Division. Appellee Thomas Alson Davis is a Director of the Texas Department of Public Safety (hereinafter referred to as the “TDPS Director”). Appellee Gary L. Johnson is the Executive Director of the Texas Department of Criminal Justice (hereinafter referred to as the “TDCJ Executive Director”). The Attorney General of the State of Texas represents both appellees.

This suit arises out of Johnson’s objection to the extraction of his blood by the State of Texas as part of the state’s DNA database system. In September 2001, the Texas Department of Criminal Justice (“TDCJ”) took a blood sample from Johnson under Chapter 411, Subchapter G, of the Texas Government Code, entitled “DNA Database System.” See Tex. Gov’t Code Ann. §§ 411.141-154 (Vernon 2005). Johnson’s blood sample was sent to the Texas Department of Public Safety (“TDPS”) for scientific analysis and maintenance in the DNA database. Johnson did not consent to the taking of the blood sample.

In May 2003, Johnson filed a pro se lawsuit in Travis County, Texas, against the TDPS Director and the TDCJ Executive Director in their official capacities, seeking injunctive relief and a judgment declaring that the Texas DNA statute violates the Texas Constitution. Johnson alleged that this statute allowed a University of Texas Medical Branch nurse to take his DNA without his permission, resulting in a civil assault. Johnson sought no damages in his original petition or in any subsequent pleading, but sued only for injunc-tive and declaratory relief.

The TDPS Director and the TDCJ Executive Director filed a motion to transfer venue of the case from Travis County to Walker County. The trial court granted the motion and transferred venue of the case to Walker County. Before the Travis County court signed the transfer order, Johnson served requests for admissions, interrogatories, and requests for production of documents on the TDPS Director and the TDCJ Executive Director. Before answering this discovery, the TDPS Director and the TDCJ Executive Director filed special exceptions to Johnson’s pleadings, purportedly seeking more specificity with respect to the nature of the acts or omissions they allegedly committed. Additionally, they argued that they were entitled to official and qualified immunity and that they were entitled to more specific pleading with regard to the allegations purportedly made against them in their individual capacities. They argued that because the State had not waived immunity, the trial court lacked jurisdiction over a suit for damages. The TDPS Director and the TDCJ Executive Director sought a protective order from the trial court pending resolution of “jurisdictional issues.”

Johnson filed responses to the special exceptions and motion for protection in which he pointed out that the suit had never involved money damages and that neither the TDPS Director nor the TDCJ Executive Director had been sued in his individual capacity. Johnson’s pleadings supported these arguments. Nevertheless, the trial court granted the special exceptions and the motion for protection.

The TDPS Director and the TDCJ Executive Director then filed a traditional motion for summary judgment in which they asserted that they were entitled to judgment as a matter of law because at least one element of each of Johnson’s claims did not exist or all elements of their affirmative defensives were conclusively established. Johnson filed a response to the motion for summary judgment in which he complained that there had not been adequate time to conduct discovery and, on this ground, requested a continuance. In addition, Johnson addressed each of the grounds asserted by the TDPS Director and the TDCJ Executive Director in their summary-judgment motion. The trial court granted the motion for summary judgment and dismissed Johnson’s case with prejudice.

II. Issues Presented

Johnson raises five issues on appeal. First, he claims the trial court erred in applying the law with respect to the TDPS Director and the TDCJ Executive Director’s motion to transfer venue. In his second issue, Johnson claims the trial court erred in granting the TDPS Director and the TDCJ Executive Director’s motion for summary judgment and in rejecting his constitutional challenges to the Texas DNA statute. In his third and fourth issues, Johnson asserts the trial court erred in ruling on various discovery matters. In his final issue, Johnson asserts the trial court erred in ruling on the TDPS Director and the TDCJ Executive Director’s special exceptions and in granting them a protective order.

III. Analysis

A. Venue

.Johnson claims the trial court erred in applying the law on the motion to transfer venue. When reviewing a trial court’s ruling on a motion to transfer venue, we consider the entire record. Tex. Crv. PRAC. & Rem.Code Ann. § 15.064(b) (Vernon 2002). In conducting this review, we do not review the trial court’s ruling for factual sufficiency of the evidence. Ruiz v. Conoco, 868 S.W.2d 752, 758 (Tex.1993). We view all the evidence in a light most favorable to the trial court’s ruling, and if there is any probative evidence in the record that venue was proper in the county in which the lower court rendered judgment, we must uphold the trial court’s venue determinations. Id.

The Travis County district court transferred venue from Travis County, where Johnson filed his suit, to Walker County, the location of the penal institute in which Johnson resides. The trial court took this action under section 15.019(a) of the Texas Civil Practice and Remedies Code, a mandatory venue provision, which states that except in a situation not applicable in this case, “an action that accrued while the plaintiff was housed in a facility operated by or under contract with the Texas Department of Criminal Justice shall be brought in the county in which the facility is located.” Tex. Crv. Prac. & Rem.Code Ann. § 15.019(a) (Vernon 2002). Johnson claims venue was also mandatory in Travis County under section 15.017 because his suit included a claim for invasion of privacy. See Tex. Civ. Prac. & Rem.Code Ann. § 15.017 (Vernon 2002). Relying on Marshall v. Mahaffey, Johnson argues that when there are two counties of mandatory venue, the plaintiffs choice between the two is controlling. See Marshall v. Mahaffey, 974 S.W.2d 942, 947 (Tex.App.Beaumont 1998, pet. denied). We need not decide this issue because the venue provision on which Johnson relies applies only in a suit for damages. See Tex. Crv. Prac. & Rem.Code Ann. § 15.017 (Vernon 2002). Because Johnson did not seek damages, his reliance on section 15.017 is misplaced. Venue was not mandatory in Travis County.

Johnson was incarcerated within the Texas Department of Criminal Justice and was being housed in Walker County when he filed suit. Therefore, venue was mandatory in Walker County. See Tex. Crv. PraC. & Rem.Code Ann. § 15.019(a). The trial court did not err in transferring venue of the case to Walker County. See Tex. Civ. Prao. & Rem.Code Ann. §§ 15.019(a), 15.063(1). Accordingly, we overrule Johnson’s first issue.

B. Summary Judgment

Johnson asserts the trial court erred in granting the TDPS Director and the TDCJ Executive Director’s motion for summary judgment. In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant’s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). If the movant’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id.

Though Johnson did not assert any challenge to the Texas DNA statute under the United States Constitution, he claims this statute violates the Texas Constitution in several respects and that these constitutional infirmities entitle him to injunctive and declaratory relief. Other Texas courts of appeals as well as federal courts have rejected the arguments Johnson makes. For the reasons explained below, we, too, conclude that the Texas DNA statute does not offend the Texas Constitution.

Search and Seizure

The nonconsensual extraction of blood implicates article I, section 9 of the Texas Constitution. Tex. Const, art. I, § 9. This provision states:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Id.

The parties have not cited, and we have not found, any appellate court decision holding a DNA collection statute unconstitutional based on constitutional prohibitions against unreasonable searches and seizures. Nonetheless, cases upholding the constitutionality of DNA collection statutes in this regard have employed two different analytical approaches. See State v. Transou, No. W2003-02966-CCA-R3-CD, 2005 WL 1154345, at *8-9 (Tenn.Crim.App. May 13, 2005) (listing cases that use either of two approaches to analyzing whether DNA collection statutes violate constitutional prohibitions against unreasonable searches and seizures). A majority of the courts have upheld these statutes under a traditional assessment of reasonableness, considering the totality of the circumstances. See, e.g., Groceman v. United States Dep’t of Justice, 354 F.3d 411, 413-14 (5th Cir.2004) (per curiam). This balancing test weighs the governmental need for the action against the privacy concern of the individual affected. See id. On the other hand, a minority of courts have analyzed DNA collection statutes as falling within the “special needs” exception to the warrant and probable-cause requirement. See, e.g., In re D.L.C., 124 S.W.3d 354, 370-73 (Tex.App.-Fort Worth 2003, no pet.).

We need not decide today which is the correct analytical approach. Under either analysis, we conclude that the Texas DNA collection statute does not violate the search and seizure prohibition in article I, section 9 of the Texas Constitution. See In re D.L.C., 124 S.W.3d at 370-73 (upholding Texas DNA collection statute under “special needs” analysis); Transom, 2005 WL 1154345, at *8-10 (upholding Tennessee DNA collection statute under traditional reasonableness test).

Prohibition Against Self-Incrimination

Johnson asserts that the seizure of his DNA amounts to compulsory self-incrimination in violation of article I, section 10 of the Texas Constitution, which reads in pertinent part: “[the accused] shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself_” Tex. Const, art. I, § 10. Though the Texas Constitution protects a criminal defendant from the compelled production of evidence which would implicate him in the crime of which he is accused, the extraction of blood for analysis is neither testimonial nor communicative in nature and thus does not offend the Texas Constitution. See In re D.L.C., 124 S.W.3d at 374. For the same reason, federal courts considering the Fifth Amendment’s protection against self-incrimination in the context of DNA databases have held that blood extraction for purposes of a statutory DNA database system does not offend the Fifth Amendment. See Yusov v. Martinez, No. 00 CIV. 5577(NRB) 2000 WL 1593387, at *5 (S.D.N.Y. Oct. 24, 2000). This same analysis has been applied by at least one Texas court in holding that the Texas DNA database statutory scheme withstands constitutional challenge on the basis of self-incrimination. See, e.g., In re D.L.C., 124 S.W.3d at 374-75. The TDPS Director and the TDCJ Executive Director were entitled to judgment as a matter of law. Accordingly, we overrule Johnson’s self-incrimination challenge to the Texas DNA statute.

Right of Privacy

Inmates, because of their incarceration, have diminished privacy interests. Once an individual is convicted on one of the felony offenses included as a predicate offense under the statute, his identity becomes a matter of state interest, and he loses any legitimate expectation of privacy in the identifying information derived from the blood sample. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003); Rise v. Oregon, 59 F.3d 1556, 1559-62 (9th Cir.1995) (reaffirmed by en banc plurality in United States v. Kincade, 379 F.3d 813, 831-32 (9th Cir.2004)). Therefore, the trial court correctly ruled that Johnson’s right-of-privacy challenge to the Texas statute fails as a matter of law.

Prohibition Against Ex Post Facto Laws

Article I, section 16 of the Texas Constitution prohibits the legislature from passing ex post facto laws. Tex. Const. Art. I, § 16. Johnson argues the Texas DNA statute violates the prohibition against enacting ex post facto laws because it inflicts a greater punishment for his crime by authorizing the TDCJ Executive Director and his agents to punish a prisoner who refuses to submit to DNA sampling by (1) denying the prisoner parole eligibility or release on mandatory supervision, and (2) using force. Johnson also argues the DNA statute, as applied to him, violates the prohibition against ex post facto laws because it became effective after the date of his offense. To determine whether a law violates the ex post facto clause, we first must determine whether by enacting the statute, the Texas legislature intended the statute to be punitive. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164 (2003); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex.Crim.App.2002). If we conclude the legislature intended to enact a civil, nonpunitive, non-regulatory scheme, we must examine the statute further and determine whether it*is punitive in purpose or effect so as to prevent courts from viewing it as regulatory or civil in nature. Smith, 538 U.S. at 92, 123 S.Ct. at 1147. We defer to the legislature’s stated intent and only the clearest proof will override the legislature’s intent, and transform what the legislature has deemed a civil remedy into a criminal penalty. Rodriguez, 93 S.W.3d at 67.

The legislature’s express, primary intent in creating a DNA database is to assist federal, state, and local criminal justice or law enforcement agencies in the investigation and prosecution of sex-related offenses or other offenses in which biological evidence is recovered. Tex. Gov’t Code Ann. § 411.143(a) (Vernon 2005). The legislature’s intent is not to inflict additional punishment on a person for the offense at hand. In re D.L.C., 124 S.W.3d at 365. Despite the intended civil, regulatory nature of the DNA statute, we must address whether the statute is so punitive in effect as to override the legislature’s nonpunitive intent. The Texas DNA statute, however, is not so punitive in effect that it prevents us from viewing the DNA statute as regulatory in nature. Id. at 365-69.

Even though the legislature enacted the Texas DNA statute after the date of Johnson’s crime, it does not violate the prohibition on ex post facto laws because that statute does not retroactively criminalize acts performed by Johnson before its enactment. See id. at 363. Accordingly, we conclude the Texas DNA statute does not violate the ex post facto clause of the Texas Constitution.

Separation of Powers

Johnson asserts the legislature violated the separation-of-powers doctrine when it created the DNA database by encroaching on the powers of the judicial branch because, under the statute, an inmate who refuses to give a DNA sample cannot be released on parole. Johnson contends that the legislature is, in effect, re-sentencing him. These arguments lack merit.

The power to pass laws is vested in our state legislature. See Tex. Const. Art. III, § 30. As noted, the DNA database is not punitive. Moreover, Johnson has no right to parole. Both state and federal courts have held that Texas prison inmates have no protected liberty interest in parole. See, e.g., Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.1997); Martin v. Tex. Bd. of Criminal Justice, 60 S.W.3d 226, 230 (Tex.App.-Corpus Christi 2001, no pet.). Therefore, Johnson’s contention that the Texas Legislature violated the separation-of-powers doctrine when it created the DNA database has no merit.

Prohibition Against Bills of Attainder

At common law, attainder was “the act of extinguishing a person’s civil rights when that person is sentenced to death or declared an outlaw for committing a felony or treason.” Black’s Law DictionaRY 137 (8th ed.1999). A bill of attainder is a legislative act that applies to a named individual or to an easily identified member of a group in such a way as to inflict punishment without a trial. United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946). Article I, section 16 of the Texas Constitution provides that, “[n]o bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” Tex. Const. Art. I, § 16. Johnson asserts that the DNA statute is punitive because it extinguishes his right to be free from terroristic threats, assault, search and seizure of his blood, and taking his genetic property for public use. He also asserts the statute preempts his right to be free from being compelled to give evidence against himself, is an invasion of his and his family members’ right to privacy, and denies him due course of law.

Because the DNA database system does not involve punishment, it does not violate the prohibition against bills of attainder. See Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir.1999). Accordingly, Johnson’s claim lacks merit. The trial court did not err in granting summary judgment rejecting this constitutional challenge to the DNA statute.

Civil Assault

To establish a prima facie claim for civil assault, the plaintiff must establish the same elements required for criminal assault. See Moore’s Inc. v. Garcia, 604 S.W.2d 261, 264 (Tex.Civ.App.-Corpus Christi 1980, writ refd n.r.e.). Under Texas Penal Code section 22.01(a)(3), an assault occurs when a person . intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen.Code Ann. § 22.01(a)(3) (Vernon Supp.2004-2005). In his petition, Johnson alleged that Carla Hollman, a phlebotomist allegedly acting as agent of the TDCJ Executive Director, took a blood sample from him without his permission. In their motion for summary judgment, the TDPS Director and the TDCJ Executive Director assert that Johnson could not pursue a viable claim for civil assault against them because neither they nor their respective agencies were involved in the actual taking of the DNA specimen from Johnson. They further assert that they could not have assaulted Johnson because neither of them came into contact with Johnson.

An appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to the record. Tex.R.App. P. 38.1(h). We must interpret this requirement reasonably and liberally. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004). However, parties asserting error on appeal must put forth some specific argument and analysis showing that the record and the law supports their contentions. See Tex.R.App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.). In his opening brief, Johnson lists assault as one of the seven constitutional challenges he asserted in his petition and argues that “the seizure of his DNA amounts to a confession wrestled from his body by physical assault.” He does not, however, provide any argument, analysis, or citations to any legal authority or to the record demonstrating that the law and the record support his contention that the taking of a blood sample from him without his consent constitutes civil assault or addressing the summary judgment grounds asserted against this claim. In his reply brief, Johnson devotes a third of a page to responding to the argument of the TDPS Director and the TDCJ Executive Director addressing Johnson’s civil assault allegation in his petition, but he provides no citations to the record or to any legal authority. Even under a liberal construction, Johnson’s appellate briefing on this issue is not sufficient to articulate a clear and concise argument as to why we should reverse the trial court’s judgment. Because Johnson’s civil assault issue is inadequately briefed, he has waived this argument.

Having found that Johnson waived his civil assault issue and that the trial court correctly granted summary judgment as to Johnson’s constitutional challenges, we overrule Johnson’s second issue.

C. Admissions

In his third issue, Johnson asserts the trial court erred in applying the law in denying his motion to deem matters admitted following the TDPS Director and TDCJ Executive Director's failure to respond to requests for admissions. A trial court has broad discretion to permit or deny the withdrawal of deemed admissions. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996). We will set aside the trial court’s ruling only if the record shows that the trial court clearly abused its discretion. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987).

Johnson served requests for admissions on the TDPS Director and the TDCJ Executive Director. Although they answered these requests, they did not file their responses within the prescribed time. Johnson asserts that the trial court should have deemed the requests admitted or, to the extent the requests were deemed admitted automatically, the trial court should not have “undeemed” them. Johnson argues that howsoever we construe the trial court’s ruling, the trial court erred in permitting the TDPS Director and the TDCJ Executive Director to rely on responses and objections filed two days late.

A party may withdraw a deemed admission if (1) the party shows good cause for the withdrawal, and (2) the court finds that the parties relying upon the responses will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to withdraw the admission. Tex.R. Civ. P. 198.3. A party can establish good cause by showing that its failure to answer was accidental or the result of a mistake, rather than intentional or the result of conscious indifference. Stelly, 927 S.W.2d at 622.

The trial court has discretion to allow a responding party to file discovery responses two days late. We cannot say the trial court abused its discretion in allowing the late filing of these discovery responses and objections. Accordingly, we overrule Johnson’s third issue.

D. Motion to Compel and Motion for Sanctions

In his fourth issue, Johnson complains that the trial court erred in denying his motion to compel the TDPS DRector and the TDCJ Executive Director to respond to his discovery requests. Johnson also asserts that the trial court erred in denying his motion for sanctions. Johnson contends that both the TDPS Director and the TDCJ Executive Director were two days late in filing responses to his requests for the production of documents and that their trial counsel “demonstrated reckless disregard to Texas Rules of Civil Procedure, Texas Practice and Remedies Code, [and] Texas State Bar Disciplinary Rules of Professional Conduct.” According to Johnson, trial counsel for the TDPS Director and the TDCJ Executive Director erroneously stated that Johnson was proceeding in forma pauperis when he was not and that she made other allegedly inaccurate statements in filings with the trial court. Johnson also alleges that the TDPS Director and the TDCJ Executive Director engaged in a pattern of discovery abuse by filing frivolous discovery objections and submitting a false discovery certification. Additionally, Johnson asserts that the trial court erred in not imposing sanctions against these parties and their counsel.

We review a trial court’s ruling on a motion to compel discovery and for discovery sanctions under an abuse-of-discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004). Trial courts have broad discretion in matters of discovery. Although the TDPS Director and the TDCJ Executive Director did not file their discovery responses on time, their failure to do so is not necessarily sanctionable conduct. Likewise, although there may have been inaccuracies in their filings, the presence of inaccuracies or other deficiencies does not mandate sanctions. The trial court has broad discretion in ruling on such matters, and its failure to impose sanctions under these circumstances does not amount to an abuse of discretion. Finding no merit in appellant’s arguments, we overrule his fourth issue.

E. Other Rulings

In his fifth and final issue on appeal, Johnson asserts the trial court abused its discretion in denying his motion to set aside the trial court’s order sustaining the TDPS Director and the TDCJ Executive Director’s special exceptions and granting them a protective order. We construe this appellate issue to fairly subsume the propriety of the trial court’s granting of the special exceptions and protective order. See Tex.R.App. P. 38.1(e).

Special Exceptions

We review a trial court’s ruling on special exceptions for an abuse of discretion. Bader v. Cox, 701 S.W.2d 677, 686 (Tex.App.-Dallas 1985, writ ref'd n.r.e.). In making this determination, we review the pleadings and construe the petition liberally, accepting as true all the factual allegations set forth. Aranda v. Ins. Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988).

The TDPS Director and the TDCJ Executive Director filed special exceptions to Johnson’s petition, asserting, among other things, that his pleading failed to allege waiver of sovereign immunity by the individuals named as defendants. The TDPS Director and the TDCJ Executive Director asserted that they were being sued in their official capacities as directors of the TDPS and the TDCJ, and thus they were entitled to sovereign immunity and could not be sued without the state’s consent. They further asserted that they were entitled to a clear and concise statement setting forth the acts and/or omissions on which Johnson purportedly relied to establish a waiver of sovereign immunity.

Additionally, the TDPS Director and the TDCJ Executive Director specially excepted to Johnson’s petition in its entirety because, they claim, Johnson allegedly failed to state with particularity the nature of the acts or omissions allegedly committed by the TDPS Director and the TDCJ Executive Director that rose to the level of a violation of the Texas Constitution. Finally, the TDPS Director and the TDCJ Executive Director specially excepted to Johnson’s pleading because, to the extent he sought relief against them in their individual capacities, he did not state facts overcoming their entitlement to official immunity and did not identify with particularity the nature of the acts or omissions allegedly committed by each of them.

Johnson’s pleadings did not contain any of the defects alleged by the TDPS Director and the TDCJ Executive Director. Contrary to the allegations in their special exceptions, Johnson did not sue for damages and he did not sue the TDPS Director and the TDCJ Executive Director in their individual capacities. Johnson filed a response in the trial court in which he noted that he sought only injunctive and declaratory relief, emphasizing that “[n]o money damages have ever been sought.” Johnson further noted that he was suing the TDPS Director and the TDCJ Executive Director only “in their official capacity as directors of TDCJ and DPS” and that he did not need the state’s consent to sue for injunctive and declaratory relief challenging an unconstitutional statute.

Nevertheless, the trial court sustained all of the special exceptions and ordered Johnson to replead and to cure the alleged defects in his petition. The trial court’s order warned that if Johnson failed to do so by October 3, 2003, the trial court would strike each allegedly defective paragraph of his pleading. The trial court signed this order on October 3, 2003, and the order was not filed with the district clerk until October 7, 2003. Johnson asserts the trial court abused its discretion in sustaining the special exceptions. He complains that the special exceptions were based on “dishonest pleadings, that had no basis in law or fact.” Additionally, Johnson notes that compliance with the order was impossible because the deadline for repleading was the same date on which the trial court signed the order.

The record supports some of Johnson’s allegations. However, even presuming the trial court erred in sustaining the special exceptions, this error did not likely cause the rendition of an improper judgment or prevent Johnson from properly presenting the case on appeal. See Tex.R.App. P. 44.1(a). Although the trial court’s order warned that Johnson’s pleadings would be stricken if he failed to replead, Johnson did not replead, and the trial court never took any action vis-a-vis striking his pleading or otherwise enforcing its order granting the special exceptions. Any error in sustaining these special exceptions would not affect the correctness of the trial court’s order granting summary judgment. Therefore, even if the trial court erred in sustaining the special exceptions, this error is not reversible.

Protective Order

We review a trial court’s ruling on a motion for protection under an abuse-of-discretion standard. See Shell Oil v. Smith, 814 S.W.2d 237, 241 (Tex.App.-Houston [14th Dist.] 1991, no writ). In their motion for protective order, the TDPS Director and the TDCJ Executive Director made some inaccurate statements, including the following:

• Johnson was proceeding in forma pau-peris.
• Johnson was suing for damages.
• Johnson was suing the TDPS Director and the TDCJ Executive Director in their individual capacities.

These statements formed the entire basis for the TDPS Director and the TDCJ Executive Director’s motion for protection from responding to discovery propounded by Johnson. The TDPS Director and the TDCJ Executive Director sought protection from discovery while the alleged “jurisdictional issues,” which were based on their claim of immunity, were pending, and this immunity defense was based entirely on the inaccurate statements set forth above. Just as there was no basis for granting the special exceptions (because Johnson’s pleading did not suffer from the alleged deficiencies), there was no basis for the protective order because the only ground on which the protective order was based — pending jurisdictional issues based on immunity — did not exist. See Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Contrary to the statements in the protective order, Johnson had not asserted claims that would have triggered immunity or “jurisdictional issues.” See id. To the extent the trial court found otherwise, it erred.

Even though the trial court erred in ruling on the protective order, the error is not reversible because the record shows that any such error did not probably cause the rendition of an improper judgment or prevent Johnson from properly presenting the case on appeal. See Tex.R.App. P. 44.1(a). The summary judgment was based on law points; it did not turn on factual issues but rested entirely on a legal analysis of constitutional issues.- The fact-based discovery from which the TDPS Director and the TDCJ Executive Director were improperly protected, if answered timely, would not have helped Johnson defeat the summary judgment on the constitutional issues. Therefore, the trial court’s error was harmless. Accordingly, we overrule Johnson’s fifth and final issue.

Having overruled all of Johnson’s appellate issues, we affirm the trial court’s judgment.

      . The trial court and all parties refer to the TDPS Director and the TDCJ Executive Director’s summary judgment motion as a no-evidence one; however, the record contains only one summary judgment motion, and it is a traditional motion for summary judgment.

      . Although appellant identifies seven separate constitutional challenges to the Texas DNA statute, in his appellate briefing, he makes no argument and cites no authority to support his contention that the DNA statute violates the ex post facto clause of the Texas Constitution or that the DNA statute constitutes a bill of attainder. Nor does appellant provide any argument or authority to support his contention that the DNA statute amounts to civil assault.


source: Caselaw Access Project

author: J. HARVEY HUDSON, Justice.

license: Public Domain

text:
    TOMBALL HOSPITAL AUTHORITY, Appellant, v. HARRIS COUNTY HOSPITAL DISTRICT, Appellee.
    No. 14-04-00263-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 28, 2005.
    Rehearing Overruled Oct. 6, 2005.

      Margaret A. Pollard, Randall L. Payne, Houston, for appellant.
    Sandra D. Hachem, Houston, for appel-lee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

J. HARVEY HUDSON, Justice.

This appeal arises out of a dispute over who should bear the responsibility of paying for indigent healthcare. Appellant, Tomball Hospital Authority (“Tomball”), provided over $480,000 of medical services to indigent patients who were eligible for free or reduced-cost healthcare under the Indigent Health Care and Treatment Act. When Tomball sought reimbursement from the Harris County Hospital District (“Harris County”), Harris County refused to pay, and Tomball filed suit. Harris County then filed a plea to the jurisdiction and a motion for summary judgment. The trial court granted Harris County’s plea to the jurisdiction without ruling on its motion for summary judgment and dismissed the case for want of jurisdiction. On appeal, Tomball contends the trial court improperly granted Harris County’s plea and erred in dismissing the case. We reverse and remand.

Factual and Procedural Background

The record reflects that between May 2001 and August 2003, Tomball accepted and provided medical treatment to numerous patients who were believed to be eligible for free or reduced-cost healthcare in Harris County under Chapter 61 of the Texas Health and Safety Code, otherwise known as the Indigent Health Care and Treatment Act. See generally Tex. Health & Safety Code Ann. §§ 61.001-61.066 (providing the statutory scheme for healthcare treatment of indigent patients). Despite being valid “Gold Card Holders,” some of these patients were turned away by Harris County facilities and forced to seek treatment at Tomball Regional Hospital (“TRH”), Tomball’s primary medical treatment facility. Other patients were diverted to TRH for unspecified reasons. Often requests were made, by either the patient or Tomball, for transfers to Harris Country facilities. But in most instances Harris County denied these requests. Still, other patients were treated and released by TRH — at Tomball’s expense — without recognition from Harris County that treatment was provided.

After providing the patients’ necessary healthcare, Tomball sent numerous written notices and demands for reimbursement of the treatment costs. However, Harris County refused to pay for treatment of any patients treated at TRH despite recognizing its obligation to provide treatment had the patients been admitted to a Harris County facility. Harris County averred “not all provisions of the [Indigent Health Care and Treatment Act] apply to the District” and further stated that it was “exempt from requirements under the [Act] concerning payment to other facilities in other counties.”

In light of Harris County’s refusals, Tomball filed suit alleging violations of both the Texas Constitution and the Health & Safety Code. Specifically, Tom-ball claimed Article IX, Section 4 of the constitution and section 281.046 of the Health & Safety Code required Harris County to assume “full responsibility” for furnishing and providing medical and hospital care for all indigent residents within Harris County. Moreover, Tomball claimed sections 61.045, 61.060, and 281.056 of the Health and Safety Code waived Harris County’s immunity and made it hable for costs of the treatment provided. Subsequently, Harris County filed a plea to the jurisdiction arguing: (1) the court lacked jurisdiction under the doctrine of governmental immunity; (2) the Health & Safety- Code provided the county courts with exclusive jurisdiction over the dispute; and, alternatively, (3) the Texas Department of Health was vested with exclusive, original jurisdiction to entertain the matter. Harris County also filed a motion for summary judgment on grounds that governmental immunity precluded Tomball from bringing suit. After considering the pleadings and evidence, the trial court granted Harris County’s plea to the jurisdiction but did not rule on the motion for summary judgment.

Scope of Review

Appellate courts have jurisdiction over appeals from interlocutory orders only if expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998) (per curiam). Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code provides for an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit. Tex. Civ. PRAC. & Rem. Code ANN. § 51.014(a)(8) (Vernon Supp. 2004-2Q05). Therefore, because the trial court’s grant of Harris County’s plea to the jurisdiction was interlocutory, our jurisdiction over this dispute is limited. Tex. Mun. Power Agency v. Pub. Util. Comm’n, 100 S.W.3d 510, 514-15 (Tex.App.-Austin 2003, pet. denied); see also Tex. Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 730-31 & n. 3 (Tex.App.-Austin 1999, no pet.) (holding in an appeal involving a plea to the jurisdiction under 51.014(a)(8), “[o]ur analysis is, of necessity, confined only to [the parties’] jurisdictional arguments”).

In reviewing a plea to the jurisdiction, we cannot examine the merits of the case or the issues raised in a motion for summary judgment. See Cozby v. City of Waco, 110 S.W.3d 32, 35-36 (Tex.App.Waco 2002, no pet.) (dismissing summary judgment points of error for want of jurisdiction and addressing only the plea to the jurisdiction); see also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) (“In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits but must consider only the plaintiffs’ pleadings and evidence pertinent to the jurisdictional inquiry.”); City of Houston v. Rushing, 7 S.W.3d 909, 913 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (explaining that “[a] motion for summary judgment concerns the merits of a lawsuit” whereas “a plea to the jurisdiction concerns whether the pleadings state a cause of action that confers jurisdiction on the trial court”); City of Sunset Valley, 8 S.W.3d at 730-31 & n. 3. Therefore, we cannot address the issues raised by Harris County’s summary judgment motion, but instead, must limit our decision solely to the three jurisdictional issues raised by Harris County’s plea. Cozby, 110 S.W.3d at 35-36; City of Sunset Valley, 8 S.W.3d at 730-31 & n. 3; Rushing, 7 S.W.3d at 913.

Plea to the Jurisdiction

Governmental Immunity

Harris County first argued in its plea to the jurisdiction that the trial court lacked subject matter jurisdiction according to the doctrine of governmental immunity. Subject matter jurisdiction is essential to a court’s power to decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd. 852 S.W.2d 440, 443 (Tex.1993). The plaintiff bears the initial burden to allege facts that affirmatively demonstrate the trial court has subject matter jurisdiction over the suit. Id. at 446. A defendant may challenge a court’s subject matter jurisdiction by filing a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). If the defendant is a governmental entity, it may file a plea on the basis of governmental immunity. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 858-55 (Tex.2002); Bland Indep. Sch. Dist., 34 S.W.3d at 554; Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 440 (Tex.App.-Fort Worth 2001, no pet.). A plaintiff who wishes to sue the State must establish a waiver of immunity by pleading it with reference to a statute or other express legislative decree. IT-Davy, 74 S.W.3d at 855; Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). Only the legislature can waive immunity from suit, and it must do so by “clear and unambiguous” language in a constitutional or statutory provision. IT-Davy, 74 S.W.3d at 853-54; Henry, 52 S.W.3d at 440; see also Tex. Gov’t Code Ann. § 311.034 (Vernon 2005) (“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by dear and unambiguous language.”) (emphasis added).

When deciding a plea to the jurisdiction, the trial court considers the allegations in the plaintiffs petition and accepts those allegations as true without considering the merits of the case. Harris County v. Proler, 29 S.W.3d 646, 647 (Tex.App.Houston [14th Dist.] 2000, no pet.). The trial court may also consider evidence especially relevant to the jurisdictional issues raised. Bland Indep. Sch. Dist., 34 S.W.3d at 555; City of Galveston v. Gray, 93 S.W.3d 587, 590 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). On appeal, we review a trial court’s order on a jurisdictional plea based on governmental immunity under a de novo standard. IT-Davy, 74 S.W.3d at 855. Furthermore, we construe the pleadings. in the plaintiffs favor and look to the pleader’s intent. Brown, 80 S.W.3d at 555; Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

Turning to the pleadings in this case, Tomball relied on a number of statutory provisions to support its claim that Harris County’s immunity from suit had been waived. Most significantly, Tomball cited section 281.056(a) of the Health and Safety Code. In general, chapter 281 of the Code enables the creation of county hospital districts like Harris County and governs the duties and obligations of the districts once they are established. See Tex. Health & Safety Code Ann. §§ 281.001-.123 (Vernon 2001 & Supp.2004-05). The chapter requires a board of hospital managers to be appointed who are to oversee the operations of each district. Id. § 281.021. Under the subchapter entitled “General Powers and Duties,” the legislature included section 281.056(a) which specifically states “[t]he board may sue and be sued.” Id. § 281.056(a) (emphasis added). This is exactly the kind of clear, unambiguous language courts recognize as a waiver of immunity from suit.

For example, in Missouri Pacific R.R. Co. v. Brownsville Navigation District, the Texas Supreme Court held that a statute permitting a navigation district to “sue and be sued” was a “general consent for [the] District to be sued in the courts of Texas in the same manner as other defendants.” 453 S.W.2d 812, 813 (Tex.1970). The court further explained that the “District is a political subdivision that is always subject to suit by virtue of a general statute, ...” Id. at 814 (emphasis added). Accordingly, the court held it was error for the lower courts to grant the district’s plea to the jurisdiction based on immunity from suit. Id.

The majority of appellate courts have relied on Missouri Pacific to conclude “sue and be sued” and similar language clearly expresses the legislature’s intent to waive a governmental entity’s immunity from suit. Other appellate courts have refused to follow Missouri Pacific and, instead, have found “sue and be sued” and similar language is not a clear waiver of immunity from suit. However, this Court aligns itself with the majority, and our most recent decisions indicate “sue and be sued” language is a sufficient pronouncement of legislative intent to waive immunity from suit. More significantly, the Texas Supreme Court has not overturned or limited its holding from Missouri Pacific. Quite the contrary, the court recently held “we have little diffieulty recognizing the Legislature’s intent to waive immunity from suit when a statute provides that a state entity may be sued ...” Taylor, 106 S.W.3d at 696-97 (emphasis added); see also Travis County v. Pelzel & Assocs., Inc., 77 S.W.Sd 246, 249-50 (Tex.2002) (holding that “sue and be sued” at least arguably shows intent to waive immunity from suits against counties).

In light of these considerations, and until the legislature or the supreme court dictate otherwise, we hold section 281.056(a) of the Health and Safety Code stating Harris County Hospital District’s board of managers may “sue and be sued” is a sufficient pronouncement of the intent to waive immunity from suit. Therefore, Hams County’s plea to the jurisdiction could not have been granted on the basis of governmental immunity. We now turn to the two additional arguments raised in Harris County’s plea to the jurisdiction. See generally In re H.E. Butt Ch'ocery Co., 17 S.W.3d 360, 367 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding) (explaining that when, as here, a trial court’s order does not state the grounds for granting a party’s motion, the appellate court must review each of the grounds asserted and will affirm if any grounds are meritorious); N. Am. Shipbuilding, Inc. v. S. Marine & Aviation, 930 S.W.2d 829, 832 (Tex. App.-Houston [1st Dist.] 1996, no writ) (same).

County Court Jurisdiction

The second complaint in Harris County’s plea is that the county courts have exclusive, original jurisdiction over any dispute involving a patient’s ability to pay for healthcare. Harris County contends this matter ultimately involves a dispute over who must pay — including the patients’ ability to pay — for medical treatment under section 281.071 of the Health and Safety Code. See Tex. Health & Safety Code Ann. § 281.071 (Vernon 2001).

Before reviewing the specific section cited by Harris County, we first recognize the constitutional presumption that a district court’s jurisdiction “consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.” Tex. Const, art. V, § 8. Moreover, district courts are courts of general jurisdiction and generally have subject matter jurisdiction absent a showing to the contrary. In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004) (citing Dubai Petroleum Co. v. Iiazi, 12 S.W.3d 71, 75 (Tex.2000)). Therefore, we must determine whether Harris County sufficiently showed that the “Constitution or other law” conveys exclusive, appellate, or original jurisdiction on another court or administrative agency. See Tex. Const, art. V, § 8; In re Entergy Corp., 142 S.W.3d at 322.

Turning to section 281.071, our goal in construing the statute is to determine and give effect to the Legislature’s intent. In re Entergy Corp., 142 S.W.3d at 322. When a statute’s meaning is unambiguous, as we believe the meaning of 281.071 is, we interpret the statute according to the “ ‘plain and common meaning of the statute’s words.’ ” Id. (quoting City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003)). Here, section 281.071(e) unequivocally states:

A county court of the county in which a patient’s hospital is located shall hear and determine the ability of the patient or the patient’s relatives to pay under this section if there is a dispute over this ability to pay or if there is doubt in the mind of the [hospital district] administrator over this ability. The court shall hear witnesses and issue any order that may be proper.

Tex. Health & Safety Code Ann. § 281.071(e) (emphasis added). Subsection (f) continues by providing that “[a]n appeal from an order of the county court must be made to a district court in the county in which the [hospital] district is located.” Id. § 281.071(f). Harris County relies on these two provisions to support its claim that the county court, not the district court, had exclusive jurisdiction over the dispute. We disagree with Harris County’s interpretation of the statute.

A closer examination of section 281.071 indicates it was intended to provide the method by which a healthcare provider can seek payment/reimbursement from a patient. Particularly considering the title of the section, “Payment and Support,” and the fact that the remaining subsections provide for collection of payment from a patient, a patient’s relatives, or a patient’s estate. Accordingly, section 281.071 is inapplicable to this case. Here, the dispute is not over a patient’s ability to pay for medical treatment, but rather, it involves two-providers and their disagreement over which of the two is required to pay for treatment of patients who already have been determined unable to pay. Therefore, after reviewing the statutory text of section 281.071 and construing the pleadings in the plaintiffs favor, we conclude that section 281.071 did not provide the county court with exclusive, original jurisdiction over the case.

Texas Health Department

Alternatively, the final ground articulated in Harris County’s plea to the jurisdiction is that the Texas Department of Health was vested with exclusive, original jurisdiction over a dispute like this one between a “provider of assistance,” such as Tomball, and a governmental entity or hospital district. Harris County points to sections 61.004 and 61.059(e) of the Health and Safety Code to support this proposition. See Tex. Health & Safety Code Ann. §§ 61.004, 61.059(e) (Vernon 2001 & Supp. 2004-05).

Again we note that district courts are presumed to have general subject matter jurisdiction over disputes absent a showing to the contrary. In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004) (quoting Tex. Const, art. V, § 8). This same presumption does not apply to an administrative agency, which is provided with only those powers that are expressly conferred upon it by statute and that are necessary to achieve the intended function of the agency. Id. (citing Subaru of Am. v. David McDavid Nissan, 84 S.W.3d 212, 220 (Tex.2002); Pub. Util. Comm’n v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex.1995)). Therefore, a state agency such as the Texas Department of Health, has exclusive jurisdiction only where the Legislature has provided a “ ‘pervasive regulatory scheme ... intended ... to be the exclusive means of remedying the problem to which the regulation is addressed.’ ” Id. (quoting Subaru of Am., 84 S.W.3d at 221). Accordingly, the Health and Safety Code language cited by Harris County is determinative of whether the Legislature created a “pervasive regulatory scheme intended to be the exclusive means” of adjudicating disputes like this one.

The specific provisions of the Health and Safety Code applicable to this case dictate:

If a provider of assistance and a governmental entity or hospital district cannot agree on a person’s residence or whether a person is eligible for assistance under this chapter, the provider or the governmental entity or hospital district may submit the matter to the [Health] department.

Tex. Health & Safety Code Ann. § 61.004(a). Furthermore, sections 61.058 and 61.059 provide the procedure whereby a healthcare provider such as Tomball can notify and seek an eligibility determination from the hospital that otherwise should have treated the patient. See id. §§ 61.058-059. More specifically, 61.059(e) states “[i]f the public hospital [i.e., Harris County] and the provider [i.e., Tomball] disagree on the patient’s residence, the hospital or provider may submit the matter to the [Health] department as provided by Section 61.004.” Id. § 61.059(e).

As we already have explained, Harris County’s refusal to reimburse Tomball was never premised on the patients’ residency or eligibility. This argument appears to have been inserted as an afterthought on appeal, particularly when we construe the pleadings in favor of the pleader — Tom-ball — as we are required to do. Accordingly, we disagree with Harris County’s contention that the ultimate disagreement in this case involves the residency or eligibility of the patients treated at TRH. Therefore, after interpreting the statutory provisions cited, considering the exact nature of the claims filed by Tomball, and reviewing the issue as framed by the parties’ original pleadings, we find both parties initially viewed this dispute as one over who was required to pay/reimburse for treatment of otherwise eligible Gold Card Holders. See Columbus Indep. Sch. Dist., 162 S.W.3d at 816 (upholding a denial of the State’s plea to the jurisdiction because the parties’ pleadings did not state a dispute which would fall within any exclusive jurisdiction of an administrative agency). Accordingly, we sustain Tom-ball’s complaint that the trial court improperly dismissed the case for lack of jurisdiction.

The judgment of the trial court is reversed and this cause is remanded to the trial court.

      . See Tex. Health & Safety Code Ann. §§ 61.001-61.066 (Vernon 2001 & Supp. 2004-05).

      . "Gold Card Holder” is the term used in the healthcare industry to describe an individual who resides in Harris County and who, based on financial condition, has applied for and been determined eligible to receive a "Gold Card,” thus entitling the person to free or reduced-cost healthcare pursuant to the Health & Safety Code and Harris County's eligibility requirements.

      . For example, one patient attempted to go to Harris County’s LBJ Hospital, but was denied admittance because the facility was on "drive by status." Another patient was in an ambulance and asked to be taken to Ben Taub Hospital but emergency medical service personnel refused and, instead, transported her to TRH.

      . Harris County took the position in correspondence leading to this suit that it was obligated to care for only those Gold Card Holders who were actually patients "in its facilities.”

      . See Tex. Const, art. IX, § 4 ("The Legislature may by law authorize creation of countywide Hospital Districts ... [that] shall assume full responsibility for providing medical and hospital care to needy inhabitants of the county.”) (emphasis added); Tex. Health & Safety Code Ann. § 281.046 (Vernon 2001) ("[T]he district assumes full responsibility for furnishing medical and hospital care for indigent and needy persons residing in the district.”) (emphasis added).

      . See Tex. Health & Safety Code Ann. § 61.045 (explaining that a hospital district "shall pay” for services rendered by another healthcare provider); id. § 61.060 ("A hospital district is liable for health care services as provided by the Texas Constitution and the statute creating the district.”) (emphasis added); id. § 281.056 (Vernon Supp.2004-05) (stating that a hospital district’s board of managers may "sue and be sued”).

      . Section 51.014(a)(8) provides, in relevant part, "[a] person may appeal from an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8). Governmental unit is defined by section 101.001 to include all state agencies, political subdivisions, and "any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.” Tex. Civ. Peac. & Rem.Code Ann. § 101.001(3) (Vernon 2005). Thus, there is little doubt that Harris County is a governmental unit. See Seamans v. Harris County Hosp. Dist., 934 S.W.2d 393, 395 (Tex.App.Houston [14th Dist.] 1996, no writ) (describing Harris County Hospital District as a "state agency”); Weeks v. Harris County Hosp. Dist., 785 S.W.2d 169, 170 (Tex.App.-Houston [14th Dist.] 1990, writ denied) ("Harris County Hospital District is a political subdivision of the State of Texas.”).

      . The terms "sovereign immunity” and "governmental immunity” are often used interchangeably. However, there is a distinction.
      Sovereign immunity refers to the State’s immunity from suit and liability, and it protects the State and its various divisions and agencies. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex.2003). In contrast, governmental immunity protects political subdivisions of the State, including counties, cities, and school districts. Id. Because Harris County Hospital District is a political subdivision, we will use the term governmental immunity in this opinion. See Weeks, 785 S.W.2d at 170 (“Harris County Hospital District is a political subdivision of the State of Texas and is entitled to invoke the doctrine of governmental immunity.”); Seamans, 934 S.W.2d at 395 ("Harris County Hospital District share[s] this governmental immunity.”).

      . The doctrine of governmental immunity encompasses two principles: (1) immunity from suit; and (2) immunity from liability. Taylor, 106 S.W.3d at 695-96; Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853-55 (Tex.2002); Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434, 440 (Tex.App.Fort Worth 2001, no pet.). Immunity from suit prohibits suits against the State unless the State has expressly consented to be sued. Taylor, 106 S.W.3d at 696; IT-Davy, 74 S.W.3d at 853-54; Henry, 52 S.W.3d at 440. "Because immunity from suit defeats a trial court’s subject matter jurisdiction, it is properly asserted in a plea to the jurisdiction.” Henry, 52 S.W.3d at 440 & n. 10 (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999)); accord IT-Davy, 74 S.W.3d at 853-55; Bland Indep. Sch. Dist., 34 S.W.3d at 554. On the other hand, "immunity from liability protects the State from money judgments even if the Legislature has expressly given consent to sue.” IT-Davy, 74 S.W.3d at 853. Unlike immunity from suit, "immunity from liability is an affirmative defense and does not affect a court’s jurisdiction to hear a case.” Henry at 440; see also Taylor, 106 S.W.3d at 696 (explaining that immunity from liability cannot be raised in a plea to the jurisdiction).
      Accordingly, we again note our analysis is limited to the jurisdictional issues involving Harris County’s immunity from suit, not the merits of its affirmative, defense of immunity from liability. Particularly because the trial court declined to rule on Harris County’s motion for summary judgment, that issue is not properly before this court. See generally City of Sunset Valley, 8 S.W.3d at 731 ("We decline to permit [the State] to use this interlocutory appeal as a vehicle to circumvent the bounds set by statute in order to obtain judicial review of the merits of [the] case before the district court has entered a final judgment.”).

      . See EPGT Tex. Pipeline, L.P. v. Harris County Flood Control Dist., 176 S.W.3d 330, 339 (Tex.App.-Houston [1st Dist.] 2004, pet. dism'd) (holding “sue and be sued” language in Water Code waives flood control district’s immunity from suit); Metro. Transit Auth. v. MEB Eng’g, Inc., 176 S.W.3d 300, 304 (Tex. App.-Houston [1st Dist.] 2004, pet. filed) (holding Transportation Code section providing that transit authority may "sue and be sued” waives governmental immunity from suit under Missouri Pacific); City of Lubbock v. Adams, 149 S.W.3d 820, 824-25 (Tex.App.Amarillo 2004, pet. filed) (holding "sue and be sued" in a city charter waives immunity from suit in accordance with Missouri Pacific and majority of courts of appeals’ decisions); City of Texarkana v. City of New Boston, 141 S.W.3d 778, 787 (Tex.App.-Texarkana 2004, pet. dism’d) (finding the words "plead and be impleaded” in section 51.075 of the Local Government Code are synonymous with "sue and be sued” and that they "waive governmental immunity from suit in light of the Texas Supreme Court’s decision in Missouri Pacific ”); Alamo Cmty. Coll. Dist. v. Browning Constr. Co., 131 S.W.3d 146, 154 (Tex.App.-San Antonio 2004, pet. filed) (holding "sue and be sued” language in Education Code clearly and unambiguously waives immunity from suit); Goerlitz v. City of Midland, 101 S.W.3d 573, 577 (Tex.App.-El Paso 2003, pet. filed) (explaining that immunity from suit was waived where city charter provided the city may "sue and be sued”); Welch v. Coca-Cola Enters., 36 S.W.3d 532, 538 (Tex.App.Tyler 2000, pet. withdrawn) (holding immunity from suit waived because Education Code provides school district trustees may "sue and be sued”); Bates v. Tex. State Tech. Coll., 983 S.W.2d 821, 827 (Tex.App.-Waco 1998, pet. denied) (holding college's immunity from suit waived because Education Code provides college board may "sue or be sued"); Engelman Irrigation Dist. v. Shields Bros., 960 S.W.2d 343, 348 (Tex.App.-Corpus Christi 1997) (concluding that "sue and be sued" language in Water Code section 58.098 "provided clear and unambiguous consent for the Irrigation District to be sued”), pet. denied, 989 S.W.2d 360 (Tex.1998) (per curiam); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 594 (Tex.App.-Austin 1991, writ denied) (holding school’s immunity from suit waived because Education Code provides school district trustees may "sue and be sued”); see also Webb v. City of Dallas, 314 F.3d 787, 795 (5th Cir.2002) (”[T]he vast majority of [Texas] courts of appeals to address the express legislative waiver question in the context of similar ‘sue and be sued’ clauses follow Missouri Pacific as controlling Texas Supreme Court precedent.”); cf. City of Mexia v. Tooke, 115 S.W.3d 618, 621-23 (Tex.App.-Waco 2003, pet. granted) (holding that language indicating the city can “plead and be impleaded” does not constitute clear and unambiguous waiver of immunity from suit, but recognizing that "sue and be sued” language provides the "requisite clarity to establish a waiver of immunity from suit”); San Antonio Indep. Sch. Dist. v. City of San Antonio, No. 04-03-00835-CV, 2004 WL 2450919, at *2-3 (Tex. App.-San Antonio Nov.3, 2004, pet. filed) (mem.op.) (holding language in section 11.151(a) of the Education Code stating the trustees of an independent school district may "sue and be sued” was a clear and unambiguous waiver of the district's immunity from suit);.

        .See City of Roman Forest v. Stockman, 141 S.W.3d 805, 813 (Tex.App.-Beaumont 2004, no pet.) ("In light of the recent emphasis by the Texas Supreme Court and the Texas Legislature on the necessity of ‘clear and unambiguous' waiver, we find the 'sue and be sued' language in the Local Government Code provisions does not contain clear waiver of immunity language."); City of Carrollton v. McMahon Contracting, L.P., 134 S.W.3d 925, 927-28 (Tex.App.-Dallas 2004, pet. filed) (concluding that “plead and be impleaded” language in Local Government Code does not waive immunity from suit); City of San Antonio v. Butler, 131 S.W.3d 170, 177 (Tex.App.San Antonio 2004, pet. filed) (holding that "plead and be impleaded” language in Local Government Code and "sue and be sued” language in city charter do not waive immunity from suit in tort cases because they are governed by the Texas Tort Claims Act); Sat-terfield & Pontikes Const., Inc. v. Irving Indep. Sch. Dist., 123 S.W.3d 63, 68 (Tex.App.-Dallas 2003, pet. filed) (holding "sue and be sued” language of the Education Code does not clearly and unambiguously waive school district's immunity from suit); City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392, 398 (Tex. App.-Dallas 2002) (explaining that "sue and be sued” language refers to a city's capacity to sue when immunity has otherwise been waived), rev’d on other grounds, No. 02-1031, 47 Tex. Sup.Ct. J. 408, 2004 WL 726906, at *3 (Tex. April 2, 2004); lackson v. City of Galveston, 837 S.W.2d 868, 871 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (holding that "sue and be sued” language did not impliedly waive a city’s immunity to suit, but see City of Houston v. Clear Channel Outdoor, Inc., 161 S.W.3d 3, 6 (Tex.App.-Houston [14th Dist.] 2004, pet. filed) which declined to follow Jackson); Townsend v. Mem’l Med. Ctr., 529 S.W.2d 264, 267 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n.r.e.) (holding that "sue and be sued” language did not "impliedly” waive a hospital district's immunity from suit); Childs v. Greenville Hosp. Auth., 479 S.W.2d 399, 401 (Tex.Civ.App.-Texarkana 1972, writ ref'd n.r.e.) (relying on pre-Missouri Pacific cases to find a hospital district's immunity was not waived).

      . See, e.g., Burlington N. & Santa Fe Ry. Co. v. City of Houston, 171 S.W.3d 240, 244-45 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.); Columbus Indep. Sch. Dist. v. Five Oaks Achievement Ctr., 162 S.W.3d 812, 815 (Tex.App.-Houston [14th Dist.] 2005, pet. filed); City of Angleton v. USFilter Operating Servs., Inc., No. 14-04-00603-CV, 2004 WL 2964016, at *1-2 (Tex.App.-Houston [14th Dist.] Dec. 23, 2004, pet. filed) (mem.op.).

      . The Texas Supreme Court currently has before it a number of petitions for review on this very issue. See, e.g., MEB Eng’g, Inc., at 304, at Clear Channel Outdoor, Inc., 161 S.W.3d at 4; Adams, 149 S.W.3d at 824-25; City of Mesquite v. PKG Contracting, Inc., 148 S.W.3d 209 (Tex.App.-Dallas 2004, pet. filed); City of Texarkana, 141 S.W.3d at 787; United Water Servs., Inc. v. City of Houston, 137 S.W.3d 747 (Tex.App.-Houston [1st Dist.] 2004, pet. filed); City of Carrollton, 134 S.W.3d at 927-28; Alamo Cmty. Coll. Dist., 131 S.W.3d at 154; Satterfield, 123 S.W.3d at 68; Tooke, 115 S.W.3d at 621-23; Goerlitz, 101 S.W.3d at 577; Hirczy de Mino v. Univ. of Houston, No. 03-03-00311-CV, 2004 WL 2296131, at *1-7 (Tex.App.-Austin Oct. 14, 2004, pet filed) (mem.op.); City Of Houston v. Boyer, Inc., No. 01-04-00153-CV, 2004 WL 2186770, at *1-2 (Tex.App.-Houston [1st Dist.] Sep. 30, 2004, pet. filed) (mem.op.); City of Houston v. Jones, No. 01-03-00831-CV, 2004 WL 1847965, at *1-2 (Tex.App.Houston [1st Dist.] Aug. 19, 2004, pet. filed) (mem. op. on reh’g); Dallas Fire Fighters Assn v. City of Dallas, No 05-03-01787-CV, 2004 WL 1662945, at *1-4 (Tex.App.-Dallas Jul 27, 2004, pet. filed) (mem.op.). If the supreme court decides to utilize one of these cases as the avenue by which it overrules Missouri Pacific, then we should be inclined to revisit our decision today. However, until such time, we, as an intermediate appellate court, must not depart from controlling supreme court precedent. See generally Webb, 314 F.3d at 795 (refusing to deviate from the rationale of Missouri Pacific because it is "controlling Texas Supreme Court precedent.”).

      . We recognize there is some evidence indicating Harris County eventually denied the Gold Card Holder status of several patients. Along with its "Response to [romball's] Motion for Interlocutory Summary Judgment,” Harris County included one affidavit that claimed several of the patients were not current Gold Card Holders at the time they were treated by Tomball. However, these denials came long after Tomball filed its original petition and long after Harris County initially filed its answer and various motions for dismissal. Moreover, Harris County never contested the patients’ ability to pay. As such, it appears this case stemmed originally from a disagreement about who was required to pay for the patients' treatment — -Tomball or Harris County. The dispute over patients’ ability came only as an afterthought.

      . Section 61.004(g) also states "[a] governmental entity, hospital district, or provider of assistance may appeal the final order of the [Health] department under Chapter 2001, Government Code, using the substantial evidence ruling on appeal.” Id. § 61.004(g). Chapter 2001 of the Government Code sets out the procedures for administrative agencies to make rules and decide disputes, and it provides specific provisions governing judicial review and court enforcement of agency decision. See Tex. Gov't Code Ann. §§ 2001.001-.902 (Vernon 2000 & Supp.2004-05). We read nothing in section 61.004(g) as a removal of a district court’s jurisdiction where the dispute involves which party, a hospital district or provider, must pay for treatment of a patient already determined to be an eligible resident.