James Thomas Green v. Harris County Institute of Forensic Sciences Luis A. Sanchez, M.D. Harris County District Attorneys Office Kim Ogg and Others

Opinion issued May 6, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00357-CV
———————————
JAMES THOMAS GREEN, Appellant
V.
HARRIS COUNTY INSTITUTE OF FORENSIC SCIENCES; LUIS A.
SANCHEZ, M.D.; HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE;
KIM OGG; AND OTHERS, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2018-09456
MEMORANDUM OPINION
James Thomas Green appeals the trial court’s order granting a plea to the
jurisdiction. Having determined that the trial court lacked jurisdiction, we affirm.
Background
In August 1995, James Thomas Green was driving his car with his wife,
Sharon, as the front seat passenger. As they drove through an intersection, Green
forced Sharon from the moving vehicle, causing her to fall on the street. Green
stopped the car, returned to where Sharon fell, lifted her head up, and smashed it into
the street. A jury convicted Green of murder and sentenced him to 35 years in prison.
In January 2019, Green sought to reopen an inquest into Sharon’s death. Green
sued Harris County Institute of Forensic Sciences (HCIFS), Harris County Medical
Examiner Luis A. Sanchez, M.D., and Harris County District Attorney Kim Ogg.
He alleged that Dr. Sanchez had falsified Sharon’s autopsy report and that her death
resulted from something other than homicide.
Green later amended his petition, perfected service on HCIFS and Dr.
Sanchez, claimed “defamation per se,” “fraud on the court,” and “violations of
constitutional and statutory rights.” He asked the trial court to declare that (1) the
defendants had abused their discretion by refusing to direct HCIFS to reopen the
inquest and (2) Dr. Sanchez had falsified Sharon’s autopsy report. He sought
injunctive relief to compel the defendants to remove the autopsy report from “public
information.” He also sought compensatory and punitive damages.
2
HCIFS and Dr. Sanchez filed a plea to the jurisdiction based on sovereign and
governmental immunity and sought dismissal of the case.1 They asserted that Green
could not sue HCIFS, as a non sui juris2 division of Harris County, because it did
not have the legal capacity to be sued. Because Green did not distinguish whether
he sued Dr. Sanchez in his official or individual capacity, the plea addressed why
dismissal was appropriate either way. They argued that Green could not sue Dr.
Sanchez in his official capacity because he was an agent of Harris County, and the
County had not waived immunity. They also argued that Green could not sue Dr.
Sanchez in his individual capacity because the evidence did not establish that Dr.
Sanchez had abused his discretion by refusing to reopen an inquest on Green’s wife.
HCIFS and Dr. Sanchez attached Sharon’s autopsy report and affidavits from
medical examiners providing that reopening the inquest was unsupported by
credible facts. Dr. V. Parungao, the medical examiner who performed the autopsy
and drafted the autopsy report, concluded that Sharon “came to her death as a result
of left subdural hemorrhage [sic] dropped to the ground, homicide.” Similarly, Dr.
D. Wolf and Dr. Sanchez both found that their review of the autopsy report and other
1
The other named defendants did not participate in the trial court proceedings
because Green did not serve them with process.
2
This Latin term means a legal entity that lacks the legal capacity to be sued. See Non
Sui Juris, BLACK’S LAW DICTIONARY (11th ed. 2019).
3
evidence supported homicide as the manner of death and concluded that no evidence
supported a different cause or manner of death.
Green responded to the plea and argued HCIFS and Dr. Sanchez had waived
their right to file a plea to the jurisdiction because they refused or failed to respond
to his prior requests for admissions, and thus the deemed admissions supported his
claims.3 He also argued that Dr. Parungao’s testimony proved that an inquest was
supported by credible evidence because Dr. Parungao testified that, “This is not a .
. . homicide, it’s something different.”4 Green did not attach any responsive
evidence.
HCIFS and Dr. Sanchez replied and attached their previous responses to
Green’s request for admissions.
The trial court granted the plea to the jurisdiction, dismissed HCIFS as a non
sui juris entity, and dismissed the suit with prejudice against Dr. Sanchez.
Green appealed.
3
If a party fails to timely respond to a request for admissions within 30 days after
service of the request, the request is considered admitted. TEX. R. CIV. P. 198.2(a),
(c).
4
Although this quote contains an ellipsis, we did not omit any information. This is
how the quote appears in Green’s responsive pleading.
4
Plea to the Jurisdiction
In three issues, Green contends the trial court erred by (1) granting the plea to
the jurisdiction, (2) dismissing HCFIS without first allowing him to amend his
petition to name the correct defendant, and (3) dismissing claims against Dr. Sanchez
with prejudice. In response, HCFIS and Dr. Sanchez argue that Green’s claims were
barred by sovereign immunity, and thus the trial court did not err by granting the
plea, refusing amendment, or dismissing the claims against Dr. Sanchez with
prejudice.
A. Standard of review
We review the trial court’s ruling on a plea to the jurisdiction de novo.
Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex.
2019). We likewise review any questions of statutory construction de novo. Id.B. Applicable law
A suit against a governmental entity requires a plaintiff to establish both the
merits of the claim and the court’s jurisdiction because of the doctrine of sovereign
immunity. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex.
2012). The governmental entity is immune from the suit if “the pleadings
affirmatively negate the existence of jurisdiction.” Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 227 (Tex. 2004). A governmental entity may raise its
immunity through a plea to the jurisdiction, a dilatory plea that seeks dismissal of a
5
case for lack of subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635,
638 (Tex. 2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (per
curiam) (sovereign immunity “defeats a trial court’s subject matter jurisdiction and
thus is properly asserted in a plea to the jurisdiction.”). The plaintiff has the burden
to allege facts that “affirmatively demonstrate” that the trial court has subject matter
jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993). A defendant may file a plea to the jurisdiction to challenge whether the
plaintiff has met its burden of alleging jurisdictional facts. See Miranda, 133 S.W.3d
at 226–27. A defendant may also file a plea to the jurisdiction to attack the existence
of jurisdictional facts. Id.
A court may consider evidence that is relevant to jurisdiction. See Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). “[W]hen a plea to the
jurisdiction challenges the existence of jurisdictional facts with supporting evidence,
the standard of review mirrors that of a traditional summary judgment: all the
evidence is reviewed in the light most favorable to the plaintiff to determine whether
a genuine issue of material fact exists.” Town of Shady Shores v. Swanson, 590
S.W.3d 544, 550 (Tex. 2019); see TEX. R. CIV. P. 166a(c). If the defendant shows
that the trial court lacks jurisdiction, the plaintiff must then show that there is a
material fact question about jurisdiction. Miranda, 133 S.W.3d at 227–28. If the
evidence raises a fact issue on jurisdiction, the plea cannot be granted, and a fact
6
finder must resolve the issue. Id. But if the evidence is undisputed or fails to raise a
fact issue, the trial court must grant the plea to the jurisdiction. Id. at 228.
C. Sovereign immunity
Sovereign immunity protects the State and its political subdivisions from
lawsuits and liability for money damages. Reata Constr. Corp. v. City of Dallas, 197
S.W.3d 371, 374 (Tex. 2006); Collier v. Suhre, 605 S.W.3d 699, 703 (Tex. App.—
Houston [1st Dist.] 2020, no pet.). Generally, sovereign immunity deprives a trial
court of subject-matter jurisdiction for lawsuits against the State, unless the State’s
immunity has been waived. Miranda, 133 S.W.3d at 224; Nehls v. Hartman
Newspapers, LP, 522 S.W.3d 23, 34 n.2 (Tex. App.—Houston [1st Dist.] 2017, pet.
denied). A trial court must dismiss the suit with prejudice if the suit is barred by
sovereign immunity because it lacks subject matter jurisdiction. See Hampton v.
Univ. of Tex.–M.D. Anderson Cancer Ctr., 6 S.W.3d 627, 629 (Tex. App.—Houston
[1st Dist.] 1999, no pet.).
The Texas Tort Claims Act (TTCA) provides a limited waiver of sovereign
immunity in limited circumstances. See TEX. CIV. PRAC. & REM. CODE §§ 101.001–
101.109; see Miranda, 133 S.W.3d at 224. The TTCA waives immunity for claims
seeking to impose liability for
(1) property damage, personal injury, and death proximately caused by
the wrongful act or omission or the negligence of an employee acting
within his scope of employment if:
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(A) the property damage, personal injury, or death arises from
the operation or use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
Id. § 101.021. The TTCA waives a governmental entity’s immunity from suit on all
claims for which it waives immunity from liability. Id. § 101.025; City of League
City v. LeBlanc, 467 S.W.3d 616, 620 (Tex. App.—Houston [1st Dist.] 2015, no
pet.). The TTCA does not waive a governmental entity’s immunity from suit for
intentional torts. TEX. CIV. PRAC. & REM. CODE § 101.057(2).
The evidence reflects that HCIFS and, in his official capacity, Dr. Sanchez,
are governmental units5 within the scope of the TTCA. Green did not allege any
claims against HCIFS or Dr. Sanchez entitling him to waiver of immunity under the
TTCA. Cf. TEX. CIV. PRAC. & REM. CODE § 101.021 (authorizing claims for property
damage, personal injury, and death against governmental units). The TTCA declares
that the State does not waive immunity for claims arising out of intentional torts. See
id. § 101.057(2). Green sued for “defamation per se” and “fraud on the court.”6 See
5
TEX. CIV. PRAC. & REM. CODE § 101.001(3)(B) (defining “governmental unit”
as a “political subdivision of this state”).
6
Green also alleged “violations of constitutional and statutory rights” against
HCIFS and Dr. Sanchez. In reviewing his petition, Green’s pleaded facts
8
id. Thus, Green’s claims do not fall within any of the enumerated exceptions to the
general rule of immunity because they are intentional torts. See, e.g., City of
Friendswood v. Horn, 489 S.W.3d 515, 529 (Tex. App.—Houston [1st Dist.] 2016,
no pet.) (intentional tort claim—misrepresentation—fell outside scope of waiver of
immunity); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex. App.—Houston
[1st Dist.] 1995, no writ) (governmental unit immune from liability for defamation
and other intentional torts); Leatherwood v. Prairie View A & M Univ., No. 01-02-
01334-CV, 2004 WL 253275, at *3 (Tex. App.—Houston [1st Dist.] Feb. 12, 2004,
no pet.) (mem. op.) (appellant’s claim failed because “defamation is an intentional
tort, for which the [TTCA] does not waive immunity”). For these reasons, HCIFS
and Dr. Sanchez have established that sovereign immunity bars Green’s claims,
depriving the trial court of subject matter jurisdiction. See Jones, 8 S.W.3d at 638
(trial court lacks jurisdiction over suit against governmental unit unless the unit has
waived immunity).
As for his request for equitable and injunctive relief under the Uniform
Declaratory Judgments Act (UDJA), Green asked the trial court to declare that
HCIFS and Dr. Sanchez abused their discretion by refusing to (1) reopen the inquest
and compel HCFIS and Dr. Sanchez to do so, (2) remove the autopsy report from
amounting to intentional conduct. We need not provide a separate analysis for
this claim because its resolution is the same as the others.
9
public information, and (3) change the cause of death. See TEX. CIV. PRAC. & REM.
CODE §§ 37.002(b), 37.004(a), 37.008. HCFIS and Dr. Sanchez contend that Green’s
claim for equitable and injunctive relief is barred by sovereign immunity.
The purpose of the UDJA is “to settle and to afford relief from uncertainty
and insecurity with respect to rights, status, and other legal relations.” TEX. CIV.
PRAC. & REM. CODE § 37.002(b). The UDJA waives governmental immunity to
allow suits by plaintiffs who allege (1) claims challenging the validity of an
ordinance or statute, or (2) ultra vires claims against state officials who allegedly act
without legal or statutory authority or who fail to perform a purely ministerial act.
See City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 & n.6 (Tex. 2009); Tex.
Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
Green did not challenge an ordinance or statute. He did, however, allege that
HCIFS and Dr. Sanchez committed an ultra vires act by not reopening the inquest
into his wife’s death. The Code of Criminal Procedure allows for reopening an
inquest upon certain evidence:
A justice of the peace may reopen an inquest if, based on information
provided by a credible person or facts within the knowledge of the
justice of the peace, the justice of the peace determines that reopening
the inquest may reveal a different cause or different circumstances of
death.
TEX. CODE CRIM. PROC. art. 49.041. Green presented no evidence from a “credible
person” to dispute the medical examiners’ findings. Nor did he provide any credible
10
facts. Instead, Green cites Dr. Parungao’s trial testimony, omitting certain words to
make it appear as if Dr. Parungao had testified to a different cause or manner of
death:
(1) Within Green’s original and amended complaint(s) he presents and
correctly cites easily verifiable judicial evidence and credible
information and facts establishing a prima facie case that mistakes were
made during the initial inquest and autopsy.
(2) It is reasonable to ascertain, in view of the credible information in
Green’s complaint(s), that a new inquest might reveal a different cause
or different circumstances respective to Sharon’s death and manner
thereof whereas Dr. Parungao (who performed the autopsy) ultimately
stated: “This is not . . . homicide, it’s something different.”
But Green’s assertion is grossly misleading. The trial transcript provides the
full context of Dr. Parungao’s testimony where he discussed general procedures for
releasing autopsy reports:
Counsel: All right. Now, is it a fact that the Harris County
Medical Examiner’s Office do [sic] not release, as a
matter of public record, the autopsy report until the
police have submitted an offense report so you can
corroborate the two and make sure that your facts
comport to what is in the offense report?
Dr. Parungao: Those cases that we don’t know like this one what
happened, I wait for the police report so I can see
what happened because I’m the one who wants it if
I could not determine—I want to be sure how this
thing happened. So, I wait for the police report and
I don’t know what time it’s going to come.
Sometimes, they’re quick, sometimes it’s weeks,
sometimes months. I have to have time to read and
study the case and that’s what I base it on. But he’s
right, I want to know what the police report says of
11
the incident at the time so I can recall because this
is not a clear cut like stab wound or homicide, it’s
something different.
Dr. Wolf independently reviewed Dr. Parungao’s testimony, provided an
affidavit outlining his medical conclusions, and noted that a language barrier could
have possibly contributed to Green’s misinterpretation of Dr. Parungao’s testimony:
During cross-examination, Dr. Parungao further made a distinction
between more straightforward cases, like gunshot wounds or stab
wounds and blunt trauma causes where in the latter, having the police
[report] is often key to determination of manner of death. “Those cases
that we don’t know like this one what happened, I wait for the police
report so I can see what happened . . . I want to be sure how this thing
happened.” [A quote from Dr. Parungao’s testimony.] It was in this
discussion that he said “. . . I want to know what the police report says
of the incident at that time so I can recall because this is not a clear cut
like stab wound or homicide, it’s something different.” [Another quote
from Dr. Parungao’s testimony.] Although his English was less than
clear, it is clear what he meant by this statement—that the
determination of manner of death in a blunt head trauma case like this
was not as straightforward as determination of manner of death in a
stabbing case; determination of manner in a case like this depended on
gathering investigative information from the police report. What he did
NOT mean was that this case was a homicide.
In addition, Dr. Wolf independently reviewed of the autopsy report and the
medical examiner’s file and concluded that no evidence supported reopening the
inquest. Dr. Wolf concluded that the initial inquest performed on Sharon was
“complete, adequate, meaningful, and performed to today’s standards.”
Dr. Sanchez also reviewed the autopsy report and agreed with Dr. Parungao’s
determinations. In his affidavit, Dr. Sanchez stated, “To my knowledge, no credible
12
person has come forward with any new relevant information that would lead me to
determine that reopening the inquest may reveal a different cause or manner of
death” of Sharon.
Green presented no countervailing evidence from medical experts disputing
the conclusions made by Dr. Parungao, Dr. Wolf, and Dr. Sanchez. Nor did he
provide any other evidence to support his ultra vires claim.
Based on our careful review of the record, we hold that Green did not present
evidence establishing an ultra vires claim against HCFIS or Dr. Sanchez for failing
to reopen the inquest. See Salinas Mestiza v. De Leon, No. 13-00-783-CV, 2002 WL
1290053, at *2 (Tex. App.—Corpus Christi June 13, 2002, no pet.) (mem. op.)
(appellant presented no evidence showing that justice of the peace abused his
discretion in refusing to reopen an inquest into decedent’s death). Green has not pled
enough facts to establish that his claims are not barred by sovereign immunity. See
Tara Partners, Ltd. v. City of S. Hous., 282 S.W.3d 564, 577 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied)
In reviewing the evidence in the light most favorable to Green, we cannot say
that a material fact question about jurisdiction exists because he presented no
credible evidence in support of the trial court’s jurisdiction. See Miranda, 133
S.W.3d at 227–28. We therefore conclude that the trial court did not err by granting
the plea to the jurisdiction because Green’s claims against HCIFS and Dr. Sanchez
13
are barred by sovereign immunity. We also conclude that trial court did not err by
dismissing the suit against Dr. Sanchez with prejudice because claims barred by
sovereign immunity must be dismissed with prejudice. See Hampton, 6 S.W.3d at
629.
We overrule Green’s first and third issues.7
Conclusion
We affirm the trial court’s order granting HCIFS and Dr. Sanchez’s plea to
the jurisdiction and dismissing the case with prejudice. See Crampton v. Farris, 596
S.W.3d 267, 277 (Tex. App.—Houston [1st Dist.] 2019, no pet.); Goss v. City of
Hous., 391 S.W.3d 168, 177 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Sarah Beth Landau
Justice
Panel consists of Justices Kelly, Landau, and Hightower.
7
We need not address Green’s second issue—challenging dismissal of the case
against HCIFS without first granting leave to amend in order to name correct
defendant—because his other two issues are dispositive. See TEX. R. APP. P. 47.1;
Lance v. Robinson, 543 S.W.3d 723, 740 (Tex. 2018) (“Rule 47.1 requires only that
the court of appeals address issues necessary to dispose of the appeal.”).
14