Appellant=s Motion for Rehearing En Banc Denied; Affirmed, Majority and Concurring Opinions of December 23, 2008 Withdrawn, and Majority and Concurring Opinions filed February 26, 2009

Appellant=s Motion for Rehearing En Banc Denied; Affirmed, Majority and Concurring Opinions of December 23, 2008 Withdrawn, and Majority and Concurring Opinions filed February 26, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00736-CV

____________

GEORGE SAADE, M.D., MICHAEL BELFORT, M.D., RAKESH MANGAL, M.D., AND CHARLES MONIAK, M.D., Appellants

V.

MERCEDES VILLARREAL, AS NEXT FRIEND OF JUAN PABLO ELIZONDO, A MINOR, Appellee

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NO. 14-07-00926-CV

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GEORGE SAADE, M.D., MICHAEL BELFORT, M.D., RAKESH MANGAL, M.D., Appellants

V.

MERCEDES VILLARREAL, AS NEXT FRIEND OF JUAN PABLO ELIZONDO, A MINOR, Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2007-20855

C O N C U R R I N G    O P I N I O N

I join in the majority=s analysis and disposition of the appeal of cause number 14-07-00926-CV, and respectfully concur in the result reached in cause number 14-07-00736-CV.

To construe a statute, we must ascertain the Legislature=s intent, and we begin with the plain and ordinary meanings of the words the Legislature selected.  FKM P=ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008); City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006).  Here, the relevant statute consists of a single compound sentence in which two independent clauses are joined by the conjunction Aand@:

A medical and dental unit, supported medical or dental school, or coordinating entity is a state agency,

and

a director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional or employee of a medical and dental unit, supported medical or dental school, or coordinating entity is an employee of a state agency for purposes of Chapter 104, Civil Practice and Remedies Code, and for purposes of determining the liability, if any, of the person for the person=s acts or omissions while engaged in the coordinated or cooperative activities of the unit, school, or entity.

Tex. Health & Safety Code Ann. ' 312.007(a) (Vernon 2001).  In parsing this sentence, we are governed by the Code Construction Act.  Id. ' 1.002 (AChapter 311, Government Code (Code Construction Act), applies to the construction of each provision in this code except as otherwise expressly provided by this code.@). 

The Code Construction Act contains both mandatory and discretionary provisions.  Compare Tex. Gov=t Code Ann. '' 311.016(1) (Vernon 2005) (A>May= creates discretionary authority or grants permission or a power.@) and 311.023 (listing statutory construction aids that a court Amay@ consider) with id. '' 311.016(2) (A>Shall= imposes a duty.@) and 311.026(a) (AIf a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.@) (emphasis added).  In one such mandatory provision, the Legislature instructs us that A[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.@  Id. ' 311.011(a). 

One such grammatical rule is the doctrine of the last antecedent, under which a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows.  Barnhart v. Thomas, 540 U.S. 20, 26 (2003).  See also 2A N. Singer, Sutherland on Statutory Construction ' 47.33 (6th ed. 2000) (AReferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent@).^[1] Such modifying Awords, phrases, and clauses are not to be construed as extending to or modifying others which are more remote . . . .@  82 C.J.S. Statutes ' 333 (1999).

This canon of statutory construction is Aneither controlling nor inflexible.@  City of Corsicana v. Willmann, 147 Tex. 377, 379, 216 S.W.2d 175, 176 (1949).  Moreover, it is inapplicable Awhen a further extension is clearly required by the intent and meaning of the context.@  Id.  See also Stracener v. United Servs. Auto. Ass=n, 777 S.W.2d 378, 383 (Tex. 1989) (ASuch doctrines must give way when there are indications that they are inapplicable.@).  Here, however, the context of the language at issue neither indicates nor requires a different construction.  The limiting phrases at issue describe two purposes for which certain persons are deemed to be employees of a state agency.  Both of those purposes are concerned solely with the liability arising from the acts or omissions of individuals, such as those described in the second independent clause,  rather than the conduct of organizations listed in the first independent clause.  Thus, the language used in the statute does not indicate that the limiting phrases were intended to apply to supported medical schools.

The title of the statute also offers no guidance.  The majority correctly points out that section 312.007 is labeled AIndividual Liability,@ but the Code Construction Act informs us that A[t]he heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.@  Tex. Gov=t Code Ann. ' 311.024.  Finally, the general legislative pronouncement that supported medical schools are state agencies does not require such organizations to be treated as state agencies for all purposes.  See id. ' 311.026 (explaining that special or local provisions prevail over general provisions).

In sum, courts generally must construe an unambiguous statute by Aadopt[ing] the interpretation supported by the statute=s plain language unless that interpretation would lead to absurd results.@  Tex. Dep=t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004).  A[P]rior law and legislative history cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code when considered in its entirety, unless there is an error such as a typographical one.@  Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999).  See also Entergy Gulf States, Inc. v. Summers, 50 Tex. Sup. Ct. J. 1140, 2007 WL 2458027, at *3 (2007) (AThe general statement that a recodification is not intended to effect substantive changes does not, however, override the plain wording of the statutory provisions directly in issue in this case.@) (reh=g granted).  For this reason, I respectfully disagree with the majority=s conclusion that a supported medical school is a state agency only for purposes of Chapter 104 and for the purpose of determining the liability of an employee.

I nevertheless concur in the majority=s disposition of this issue for the independent reason that appellants failed to establish that the plaintiffs could have filed suit against Baylor College of Medicine under the Texas Tort Claims Act.  Even assuming that the school is a Agovernmental unit@ as that term is used in section 101.106(f) of the Texas Civil Practice and Remedies Code, the plaintiffs= allegations do not describe a situation in which the use or misuse of tangible personal property actually caused the harm at issue. Cf. Tex. Dep=t of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001) (AUsing that property must have actually caused the injury. . . . [Patient=s condition that] became progressively worse due to the passage of time and an alleged error in medical judgment . . . [does not demonstrate the] >use= of tangible personal property that >caused= injury.@).

/s/      Eva M. Guzman

Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown (Hedges, C.J., majority).

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^[1]  Cf. Ludwig v. State, 931 S.W.2d 239, 241 (Tex. Crim. App. 1996) (en banc) (AGenerally, the presence of a comma separating a modifying clause in a statute from the clause immediately preceding is an indication that the modifying clause was intended to modify all the preceding clauses and not only the last antecedent one.@ (quoting 82 C.J.S. Statutes ' 334 (1953))) (now see 82 C.J.S. Statutes ' 333 (1999)).