Harris County Hospital District v. Tomball Regional Hospital,
No. 05-0986 283 S.W.3d 838 (Tex. 2009)(Johnson)(sovereign immunity of hospital district,
sue and be sued provision, Tooke progeny)

County; 14th district (
14-04-00263-CV, 178 SW3d 244, 07-28-05)(Johnson)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright,
Justice Medina, and Justice Green joined. [
pdf version of majority opinion]
Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill, Justice Brister,
and Justice Willett joined. [
pdf version of Jefferson's dissent]
Electronic e-Briefs on court's web site

Harris County Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838 (Tex. 2009)

Argued December 4, 2007

Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright,
Justice Medina, and Justice Green joined.

Justice Jefferson filed a dissenting opinion, in which Justice O'Neill, Justice Brister, and
Justice Willett joined.

In this case we consider whether Harris County Hospital District is immune from suit by the
Tomball Hospital Authority to recover medical expenses for hospital care the Hospital Authority
rendered to indigent patients. We hold that the Legislature has not waived the district's
immunity from suit either by specific statutory language or by implication from a constitutional
and statutory framework.


“Sue and be sued”

The board of managers of a hospital district “shall manage, control and administer the hospital
or hospital system of the district.” Tex. Health & Safety Code § 281.047. Section 281.056 is
entitled “Authority to Sue and be Sued; Legal Representation” and provides that “[t]he board
may sue and be sued.” The court of appeals held that this language waived immunity from suit.
178 S.W.3d 252-53. In its brief predating this Court=s decision in Tooke, THA cites Missouri
Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812, 813-14 (Tex. 1970),
and Tarrant County Hospital District v. Henry, 52 S.W.3d 434, 448 (Tex. App.—Fort Worth
2001, no pet.), in support of the court of appeals= decision. HCHD discounts Missouri Pacific
and Henry because they were decided before Tooke. We agree with HCHD.

When an entity=s organic statute provides that the entity may “sue and be sued,” the phrase in
and of itself does not mean that immunity to suit is waived. Tooke, 197 S.W.3d at 337.
Reasonably construed, such language means that the entity has the capacity to sue and be
sued in its own name, but whether the phrase reflects legislative intent to waive immunity must
be determined from the language=s context. Id. Thus, section 281.056(a) does not in and of
itself waive HCHD=s immunity. See id. at 334, 337. Nor does section 281.056(a)=s language
indicate a waiver of HCHD=s immunity when considered in context with the remainder of section
281.056 which specifies who will represent the district in civil proceedings. This section
anticipates the district=s involvement in civil proceedings of some nature at some point, but it
does not address immunity from suit. See id.

Likewise, the other sections of chapter 281 do not, in context, reflect legislative intent to waive
immunity. For example, section 281.050 authorizes a district, in broad terms and subject to
approval of the commissioners court, to construct, acquire, and maintain property and hospital
facilities to provide services. Section 281.051 grants authority, again subject to approval of the
commissioners court, to contract or cooperate with various governmental and private entities to
fulfill a district=s duties and to enter contracts to provide for medical care of certain classes of
needy individuals. Section 281.055 authorizes districts to accept gifts and endowments to be
held in trust and to administer them.

The context in which section 281.056(a) is found shows that the Legislature intended to invest
districts with powers and authority necessary to conduct their business, subject in large part to
approval of the county commissioners court. There is, however, no indication that by use of the
“sue and be sued” language the Legislature clearly intended to waive districts= immunity from
suit. We conclude that section 281.056(a) does not, either by itself or in context, clearly and
unambiguously waive HCHD=s immunity to suit.

Next, we turn to THA=s claim that HCHD=s immunity is waived by the framework of law created
by the Texas Constitution and certain sections of the Health and Safety Code.

D. Constitutional Provisions

Article IX, Section 4 of the Texas Constitution was proposed and adopted as an amendment in
1954. It provides that if a hospital district is legislatively authorized and created, “such Hospital
District shall assume full responsibility for providing medical and hospital care to needy
inhabitants of the county and thereafter such county and cities therein shall not levy any other
tax for hospital purposes.” Id. At the time the amendment was proposed, city-county hospitals
were supported by both city and county taxes. The amendment was meant to address the issue
of city residents being taxed by both cities and counties to support the hospitals, while non-city
residents paid only county taxes. Dallas= Stake Big in Hospital Vote, Dallas Morning News, Oct.
24, 1954, at pt. VII, p. 6. At that time, the common-law doctrine of sovereign immunity that Ano
state can be sued in her own courts without her consent, and then only in the manner indicated
by that consent” had been established in Texas for over one hundred years. See Tooke, 197 S.
W.3d at 331 (internal quotation marks omitted) (quoting Hasner v. DeYoung, 1 Tex. 764, 769
(1847)). The constitutional language as it was proposed and adopted did not address waiver of
a hospital district=s immunity. The constitutional language bears on a hospital district=s liability
for providing care, but it does not address the method by which that liability may be enforced;
that is, whether a hospital district is or is not immune from suit to establish and secure a
judgment for the amount of whatever its liability may be. We need go no further than the plain
language of the Constitution to conclude it does not provide that suits for damages may be filed
against a hospital district. See Bouillion, 896 S.W.2d at 148.[2] We hold that article IX, section 4
does not waive a district=s governmental immunity from suit.

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