Harris County Hospital District v. Tomball Regional Hospital

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════════

No. 05-0986

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Harris County Hospital

District, Petitioner,

v.

Tomball Regional Hospital , Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fourteenth District of

Texas

════════════════════════════════════════════════════

Argued December 4,

2007

Justice Johnson delivered the opinion of

the Court, in which Justice Hecht,

Justice Wainwright, Justice Medina , and Justice Green joined.

Chief 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.

I. Background

Tomball

Hospital Authority (THA) was created and organized pursuant to chapter 262 of

the Texas Health and Safety Code. Tex.

Health & Safety Code

ch . 262. [1] It owns and operates Tomball Regional Hospital (the hospital) in Harris County. From 2001 to 2002, the hospital

provided medical care to certain indigent patients who were residents of the

Harris County Hospital District (HCHD). THA sought payment from HCHD for the

care it provided, but HCHD refused to pay. THA sued HCHD in district court,

basing its claim on the Indigent Health Care and Treatment Act (IHCTA) and the

Texas Constitution. In a plea to the jurisdiction and motion for dismissal and

alternatively for summary judgment, HCHD asserted that (1) it had governmental

immunity from suit; (2) county courts had exclusive jurisdiction over the

matters; and (3) the Texas Department of Health had exclusive, original

jurisdiction over the claim. THA responded by alleging that jurisdiction was

proper in the district court and that Article IX, Section 4 of the Texas

Constitution and Health and Safety Code sections 61.002(6), 61.0045, 61.060, and

281.056(a), which require a hospital district to provide and pay for indigent

care, waived HCHD = s

governmental immunity.

The trial

court granted HCHD = s

plea to the jurisdiction and motion to dismiss. In an opinion predating this

Court = s decision in

Tooke v. City of Mexia , 197 S.W.3d 325 (Tex. 2006), the court of appeals

concluded that Health and Safety Code section 281.056(a) providing that boards

of hospital districts like HCHD may “sue and be sued” waived HCHD = s immunity from suit. 178 S.W.3d 244, 252-53 . The court of appeals also determined

that the Health and Safety Code did not vest exclusive, original jurisdiction in

either the county court or the Texas Department of Health. Id. at

254-55. The court reversed and remanded the case. Id. at

256.

In this

Court, HCHD challenges the court of appeals = holding that the “sue and

be sued” language in section 281.056(a) waives its governmental immunity. THA

argues the court of appeals is correct, but also contends that even if section

281.056(a) does not explicitly waive HCHD = s immunity to suit, its

immunity is waived by a framework of law that includes the Texas Constitution

and the Health and Safety Code. Additionally, THA argues that upholding

HCHD = s claim that it

retains immunity will lead to: (1) cities withholding taxes collected for

hospital districts in order to offset debts owed by districts to the cities for

indigent care resulting in suits against the cities to recover the withheld

taxes; (2) bankruptcies of cities and municipal hospital authorities; and (3)

violations of Texas Constitution Article III, Section 52(a) by cities in that a

public benefit does not result from expenditures of public funds benefitting indigent parties not entitled to care by the

cities. Disagreeing with THA = s positions, we reverse the

judgment of the court of appeals and dismiss the case.

II. Standard of Review

A party

asserting governmental immunity to suit challenges the trial court = s jurisdiction.

See

State v. Holland , 221 S.W.3d 639, 642 (Tex. 2007). A

motion or plea asserting such immunity involves a question of law that we review

de novo. Id. Further, THA = s assertions require review

of both Texas

constitutional and statutory provisions which involve matters of law and are

reviewed de novo. See City of San Antonio v. City of Boerne , 111 S.W.3d

22, 25 (Tex. 2003); Tex. Nat = l Guard Armory Bd. v. McCraw , 126 S.W.2d 627, 634 (Tex. 1939) (noting that

the Constitution is the fundamental law of the State).

III. Analysis

A. Construction

In construing

the Constitution, as in construing statutes, the fundamental guiding rule is to

give effect to the intent of the makers and adopters of the provision in

question. Cox v. Robison , 150 S.W. 1149, 1151

(Tex.

1912). “We presume the language of the Constitution was carefully

selected, and we interpret words as they are generally understood.” City of Beaumont v. Bouillion , 896 S.W.2d 143, 148 (Tex. 1995). We

rely heavily on the literal text. Stringer v. Cendant

Mortgage Corp. , 23 S.W.3d 353, 355 (Tex. 2000). However, we may consider

such matters as the history of the legislation, Harris v. City of Fort

Worth , 180 S.W.2d 131, 133 (Tex. 1944), the conditions and spirit of the

times, the prevailing sentiments of the people, the evils intended to be

remedied, and the good to be accomplished. See Dir. of the Dep = t of Agric. & Env = t v. Printing Indus.

Ass = n of

Tex. , 600 S.W.2d 264, 267 (Tex. 1980).

In construing

a statute, our objective is to determine and give effect to the Legislature = s intent. State v.

Gonzalez , 82 S.W.3d 322 , 327 (Tex. 2002); see also Tex. Gov = t Code § 312.005; Am. Home Prods.

Corp. v. Clark , 38 S.W.3d 92,

95 (Tex.

2000). We look first to the “plain and common meaning of the

statute = s words.”

Gonzalez , 82 S.W.3d at 327 (internal quotation marks omitted) (quoting

Fitzgerald v. Advanced Spine Fixation Sys., Inc. , 996 S.W.2d 864, 865

(Tex. 1999)).

We determine legislative intent from the statute as a whole and not from

isolated portions. Id.

B. Governmental Immunity

Governmental

immunity protects political subdivisions of the State from lawsuits for damages.

See Reata Constr . Corp. v. City of Dallas , 197 S.W.3d 371, 374 (Tex. 2006).

Hospital districts have such immunity. See Martinez v. Val

Verde County Hosp.

Dist. , 140 S.W.3d 370, 371 (Tex. 2004). Governmental

immunity, like the doctrine of sovereign immunity to which it is appurtenant,

involves two issues: whether the State has consented to suit and whether the

State has accepted liability. Wichita Falls

State Hosp. v. Taylor , 106 S.W.3d 692, 696 (Tex. 2003).

Immunity from suit is jurisdictional and bars suit; immunity from liability is

not jurisdictional and protects from judgments. Tex. Dep = t of Parks & Wildlife

v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004). Immunity is waived only by clear

and unambiguous language. See Tex. Gov = t Code § 311.034 (“[A] statute shall

not be construed as a waiver of sovereign immunity unless the waiver is effected

by clear and unambiguous language.”); Tooke ,

197 S.W.3d at 328-29 .

C. “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

A no 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.

E. Statutory Provisions

Looking next

to the statutes involved, we note that it is more difficult to determine

legislative consent to suit against an entity when language specifying that

“immunity is waived” is absent from the provisions in question. Taylor , 106 S.W.3d at 697 . We have developed aids to help analyze

statutes for legislative consent to suit: (1) whether the statutory provisions,

even if not a model of clarity, waive immunity without doubt; (2) ambiguity as

to waiver is resolved in favor of retaining immunity; (3) immunity is waived if

the Legislature requires that the entity be joined in a lawsuit even though the

entity would otherwise be immune from suit; and (4) whether the Legislature

provided an objective limitation on the governmental entity = s potential liability.

See id. at 697-98 . We have also considered

whether the statutory provisions would serve any purpose absent a waiver of

immunity. See, e.g. , id. at 700; Tex. Dep = t of Transp . v. City of Sunset Valley , 146 S.W.3d 637, 643 (Tex. 2004); Kerrville State Hosp. v. Fernandez , 28 S.W.3d 1, 6

(Tex.

2000).

Pursuant to

the authority granted by Texas Constitution Article IX, Section 4, section

281.002 of the Health and Safety Code statutorily authorizes creation of

hospital districts in counties with populations over 190,000. Section 281.046

provides that if such a district is created, then “[b] eginning on the date on which taxes are collected for the

district, the district assumes full responsibility for furnishing medical and

hospital care for indigent and needy persons residing in the district.” Section

281.046 = s language

parallels that of the Constitution insofar as mandating that once a district

begins collecting taxes for purposes of providing health care to indigents, then

it has the responsibility to provide such care. Our analysis of the similar

constitutional language applies to section 281.046 which is, for purposes of the

issue before us, the same as the language in article IX, section 4. The

statutory language might impact or even foreclose the question of whether a

hospital district is liable for allowable expenses, an issue not before

us, but the statute is silent as to waiver of a district = s immunity from suits such

as the one THA has brought. And section 281.046 neither requires the district to

be joined in some type of suit nor does it set an objective limitation on the

district = s potential

liability. See Taylor , 106 S.W.3d at

697 -98 . In sum, section 281.046 does not waive HCHD = s immunity from suit.

We next

consider THA = s

argument that HCHD = s

immunity is waived by Section 61.002(6) of the IHCTA. Section 61.002 contains

definitions applicable to that chapter:

(6)

“Governmental entity” includes a county, municipality, or other political

subdivision of the state, but does not include a hospital district or hospital

authority.

(7)

“Hospital district” means a hospital district created under the authority of

Article IX, Sections 4-11, of the Texas Constitution.

THA claims

that because a hospital district is excluded from the definition of

“governmental entity,” immunity does not apply to hospital districts for claims

under the IHCTA because only “governmental entities” are protected by the

doctrine of governmental immunity. A fair and reasonable reading of the statute

yields the conclusion that where the term “governmental entity” is used

in the chapter, a hospital district is not included. If the chapter said that

notwithstanding any provision of the chapter that might be interpreted

otherwise, immunity is retained for governmental entities, then THA’s argument would carry greater weight. But the chapter

nowhere addresses immunity of “governmental entities.” Applying the

interpretation aids of Taylor , we conclude that section

61.002(6)’s definition of “governmental entity” which excludes HCHD, does not

waive HCHD’s immunity. See Taylor , 106 S.W.3d at 697 -98 .

Section

61.0045 is entitled “Information Necessary to Determine Eligibility.” Section

61.0045(a) allows medical service providers to require patients to furnish and

authorize the release of information necessary for determination that the

patient is an eligible resident of the service area so the provider may submit a

claim to the A county , hospital

district, or public hospital that is liable for payment for the service.”

Section 61.0045(b) provides:

A county,

hospital district, or public hospital that receives information obtained under

Subsection (a) shall use the information to determine whether the patient

to whom services were provided is an eligible resident of the service area of

the county, hospital district or public hospital and, if so, shall pay

the claim made by the provider in accordance with this chapter.

(Emphasis

added). THA argues that the use of “shall” mandates payment by HCHD, and if the

language is not interpreted as waiving HCHD’s immunity

from suit, then the statute’s use of mandatory language is of no effect. THA

urges that failing to interpret section 61.0045 as waiving immunity would

violate our principles of statutory construction and the Legislature’s mandate

that in interpreting statutes it is presumed the entire statute is intended to

be effective and that a just and reasonable result is intended. See Tex. Gov’t Code § 311.021(2) ,( 3). We disagree with THA. Like our discussion of sections

281.046 and 61.002(6), the analysis for legislative consent to suit applies here

as well: (1) the statutory provisions do not waive the district’s immunity from

suit without doubt; (2) to the extent the statute creates some ambiguity as to

waiver of immunity from suit, we resolve the doubt in favor of retaining

immunity; (3) neither section 61.0045 nor chapter 61 requires a hospital

district to be joined as a party to some type of lawsuit; and (4) neither

section 61.0045 nor chapter 61 places an objective limitation on any potential

liability. See Taylor , 106 S.W.3d at

697 -98 .

Section

61.0045 requires a hospital district to pay claims by a provider for services

rendered to an eligible resident of the district. But as with Article IX,

Section 4 of the Constitution and section 281.046, section 61.0045 is directed

toward the question of whether a hospital district is liable for

allowable expenses; but the statute is silent as to waiver of a district’s

immunity from suit asserting a right to reimbursement by parties such as

THA. Thus, section 61.0045 does not waive HCHD’s

immunity from suit.

Section

61.060 is entitled “Payment for Services.” Section 61.060(b) provides that “[a]

hospital district is liable for health care services as provided by the Texas

Constitution and the statute creating the district.” Section 61.060 also

addresses a hospital district’s liability for payment and not its immunity from

suit. THA’s urging that section 61.060 waives HCHD’s immunity from suit is misplaced for the reasons we

have expressed above as to sections 281.046, 61.002(6), and 61.0045.

F. Additional Considerations

Next we

consider THA’s assertion that the IHCTA is part of a

framework of law that waives HCHD’s immunity from

suit. THA contends that the provisions of the IHCTA, when considered with the

previously discussed language of Article IX, Section 4 of the Constitution and

section 281.046(a) (specifying that a hospital district “assumes full

responsibility for furnishing medical and hospital care for indigent and needy

persons residing in the district”), yield the inescapable conclusion that the

Legislature intended for hospital districts’ immunity from suit to be waived.

Districts could then be required to pay claims for which they are statutorily

liable and for which they have received tax money. THA posits that if the law

were otherwise, hospital districts could collect taxes to pay for indigent care,

yet deny a treating entity’s requests for payment with impunity, thereby

transferring the cost of the care to entities such as THA that do not have

taxing authority. See Tex. Health & Safety Code §§

262.003(e), 281.045(a) (providing that a hospital authority does not have taxing

power). THA warns that if we hold the Legislature has not

waived HCHD’s immunity from suit, then (1) cities will

begin withholding taxes collected for hospital districts and offset those

collections against alleged A debts ” owed by

districts to the cities for indigent care, resulting in numerous suits by

districts to recover the taxes withheld; (2) cities and municipal hospital

authorities will be bankrupted by paying for indigent medical care; and (3)

cities and municipal hospital districts, by expending funds for care of

ineligible indigents will be in violation of Texas Constitution Article III,

Section 52(a). Despite THA’s construct and warnings of

dire results if HCHD prevails here, we disagree with THA that the statutory

framework or predicted negative effects of sustaining HCHD’s claim of immunity to suit justifies our reading clear

and unambiguous waiver language into the statutes. See Seay v. Hall , 677 S.W.2d 19, 25 (Tex. 1984) (“While this

court may properly write in areas traditionally reserved to the judicial branch

of government, it would be a usurpation of our powers to add language to a law

where the legislature has refrained.”); Simmons v. Arnim , 220 S.W. 66, 70 (Tex. 1920) (“[Courts] are not

the law‑making body. They are not responsible for omissions in legislation. They

are responsible for a true and fair interpretation of the written law.”).

Even though a

hospital district assumes responsibility for providing medical and hospital care

as a condition of collecting a tax, none of the statutes referenced by THA

clearly waive a hospital district’s governmental immunity so it can be sued over

how and when the tax receipts are spent. And policy

determinations involving who actually collects taxes, whether collecting

entities are subject to suit if taxes are withheld by the collecting authority,

whether laws will result in bankruptcy of municipal entities, and conforming

statutory mandates for indigent care to constitutional mandates are the very

type of policy decisions the Legislature is expected to make. The

judiciary’s task is not to refine legislative choices about how to most

effectively provide for indigent care and collect and distribute taxes to pay

for it. The judiciary’s task is to interpret legislation as it is written. See McIntyre v. Ramirez , 109 S.W.3d 741, 748 (Tex. 2003) (“Our role . .

. is not to second‑guess the policy choices that inform our statutes or to weigh

the effectiveness of their results; rather, our task is to interpret those

statutes in a manner that effectuates the Legislature’s intent.”). And as

to THA’s contention that municipal hospital districts’

expenditures for certain indigent health care are a constitutional violation, no

one has charged in this case that THA’s expenditures

are unconstitutional, and whether they are is not an issue properly

presented.

THA also argues

that in light of the constitutional provision, the Legislature must have

intended to waive immunity to suit by so thoroughly addressing hospital

districts’ liability and procedures for determination of eligibility of

indigents for care. [3] THA refers to two statutes that have been

interpreted as waiving sovereign or governmental immunity by language that the

governmental entity “is liable for” certain damages, similar to the statutes

under consideration here. The first is the Tort Claims Act’s provision that “[a]

governmental unit in the state is liable for . . . property damage, personal injury,

and death” under certain circumstances. See Tex. Civ. Prac. & Rem.

Code § 101.021. THA

cites University of Texas Medical Branch v. York , 871 S.W.2d 175, 177-79

(Tex. 1994),

for support. THA’s reliance on the language of the

Tort Claims Act and York is misplaced. First, the Tort Claims Act

specifically waives immunity in section 101.025:

101.025

Waiver of Governmental Immunity; Permission to Sue

(a)

Sovereign immunity to suit is waived and abolished to the extent of liability

created by this chapter.

(b) A

person having a claim under this chapter may sue a governmental unit for damages

allowed by this chapter.

Tex. Civ. Prac. & Rem.

Code § 101.025. And in

York , the question was not whether immunity to suit had been waived by

the Tort Claims Act; the issue was whether the use, misuse, or non-use of

information recorded in a patient’s medical records constituted use of tangible

personal property for which governmental immunity is waived. York , 871 S.W.2d at 175 .

THA also points

to Code of Criminal Procedure article 104.002(a) which states “[e] xcept as otherwise provided by this article, a county is

liable for all expenses incurred in the safekeeping of prisoners . . . kept

under guard by the county.” THA refers us to Harris County v. Hermann

Hospital , 943 S.W.2d 547 (Tex. App.—Eastland 1997, no writ), in which a

suspect who was under guard by Harris

County was taken by Life Flight to

Hermann

Hospital and treated. When

the County refused to pay for the care rendered, Hermann Hospital sued. Id. at

548. The trial court denied Harris County’s motion for summary judgment and granted that

of Hermann

Hospital. Id. The question

of immunity to suit was not urged, but the court of appeals, in addressing

Harris County’s claim that article 104.002 did not authorize a third-party

lawsuit against the County held that “[a] lthough the

statute does not explicitly authorize a suit against a county for the payment of

prisoners’ medical expenses, it is clear that the statute imposes liability for

these expenses on counties.” Id. at

550. The court then stated that the hospital’s only recourse after the

County refused to pay was to bring suit. Id. The court relied on former Texas

Local Government Code section 81.041 [4] (now section 89.004) which provided that

“a person may not sue on a claim against a county unless the person has

presented the claim to the commissioners court and the commissioners court has

neglected or refused to pay all or part of the claim.” The court also cited

Farmers State Bank of New Boston v. Bowie County , 95 S.W.2d 1304, 1306

(Tex. 1936), and Jensen Construction Co. v. Dallas County , 920 S.W.2d

761, 770 (Tex. App.—Dallas 1996, writ denied), which interpreted similar

statutory language to determine whether suit against a county was authorized. We

are not persuaded that the referenced authorities are a firm footing for THA.

First, those cases did not rely only on a statute that provided a governmental

entity was liable. Additionally, after those cases were decided, this Court

rejected the argument that Texas Local Government Code Section 89.004 waived

immunity from suit. Travis

County v. Pelzel & Assocs., Inc. , 77 S.W.3d 246, 249

(Tex.

2002).

Furthermore, as

we have noted, “[T]he > heavy presumption in

favor of immunity’ derives not just from principles related to separation of

powers but from practical concerns: > In a world with

increasingly complex webs of governmental units, the Legislature is better

suited to make the distinctions, exceptions, and limitations that different

situations require.’” Nueces County v. San Patricio County , 246 S.W.3d

651, 653 (Tex. 2008) ( quoting City of

Galveston v. State , 217 S.W.3d 466, 469

(Tex. 2007)).

Given the interaction between federal, state, and local entities to provide for

indigent health care, it is the Legislature that is in the better position to

weigh the competing interests, financial burdens, benefits, and allocation of

costs and resources among the participants in the process of providing that

care. If the Legislature intends to waive hospital districts’ immunity from

suit, we have confidence it will do so clearly and unambiguously, not by

implication as THA in effect urges has been done. If we were to hold that waiver

of governmental immunity to suit can occur in the manner contended for by THA—by

repeatedly using language in statutes to the effect that the district “assumes

liability” and “is liable” for expenses—our holding would be at odds with the

Legislature’s plainly expressed intent that statutes not be construed as waiving

immunity unless there is clear and unambiguous waiver language in the statute.

See Tex. Gov’t

Code § 311.034 (“[A] statute shall not be

construed as a waiver of sovereign immunity unless the waiver is effected by

clear and unambiguous language.”); id. § 311.016

(providing that use of the word “shall” in a statute imposes a duty absent another meaning from the context or

specific statutory provision). The language THA references

is not a clear and unambiguous waiver of hospital districts’ immunity

from suit for the type claim it makes. Cf. Tex. Dep’t of

Transp . , 146 S.W.3d at 643-44 (holding that a

statute’s requirement that compensation “shall be made” does not alone waive

immunity). Nor does the whole of the referenced framework of

constitutional and statutory law, when analyzed according to the factors we set

out in Taylor , lead us to the interpretation

THA urges. [5]

IV. Response to the Dissent

The dissent

argues that the case should be remanded based on City of Beaumont v. Bouillion , 896 S.W.2d 143 (Tex. 1995), and City of Elsa v. M.A.L. , 226 S.W.3d

390, 392 (Tex.

2007), which provide that suits for injunctive relief may be maintained against

governmental entities. The dissent claims that by not doing so, we preclude THA

from seeking injunctive relief. But this has always been and remains a suit for

money damages. In the trial court, THA sought judgment for “liquidated actual

damages” for the itemized care it had already provided to specific patients as

well as interest, costs, and attorney’s fees. HCHD filed pleas to the

jurisdiction asserting immunity, and although THA amended its petition twice, it

never requested relief other than monetary damages. Nor did THA ask that we

remand the case so that it may replead and request

such relief. See State v. Brown , 262 S.W.3d 365, 370 (Tex. 2008) (declining to

remand a case when the petitioner did not seek such relief). [6]

V. Conclusion

HCHD’s immunity from suit for damages has not been waived

and the trial court did not have jurisdiction over TRH = s suit. The judgment of the

court of appeals is reversed and the cause is dismissed.

________________________________________

Phil

Johnson

Justice

OPINION DELIVERED: May 1,

2009

[1] Further

references to provisions of the Health and Safety Code will generally be by

section numbers.

[2] Even if we

were to go behind the plain language of the Constitution, the available

legislative history and records of public discussions about the proposed

amendment do not show that any consideration was given to the subject of

immunity from suit.

[3] This argument

is similar to an argument that the statutes at issue would have no purpose

absent waiver of HCHD’s immunity from suit. See

Tex. Dep’t of

Transp . , 146 S.W.3d at

643 . THA does not claim that the statutes have no purpose in the absence

of waiver. To the contrary, at oral argument THA candidly professed that the

statutory construct is well designed in regard to allocation of responsibility

for indigent care.

[4] See Act of May 15, 1987, 70th Leg., R.S., ch . 149, § 1, 1987 Tex. Gen. Laws 707 ,

793.

[5] THA also

references several Attorney General opinions responding

to questions about county hospital districts’ liability for costs of indigent

care. The opinions address liability of the districts, but not immunity

from suit. The referenced Attorney General opinions do not persuade us that

districts’ immunity from suit has been waived for the reasons we have expressed

as to statutory provisions addressing districts’ liability for indigent health

care costs.

[6] In City of

El Paso v. Heinrich , ___ S.W.3d ___ (Tex. 2009), also issued today, the

Court holds that a claim for prospective declaratory and injunctive relief

against government actors in their official capacities but acting ultra

vires is not barred by immunity even if the requested relief compels the

governmental entity to make monetary payments. However, the Court reaffirms the

principle that immunity bars suits against governmental entities for

retrospective monetary relief. Id. at

___.