A patient checks into a rehabilitation hospital. Her lab work flags a serious bacterial infection. Her doctors never treat it. She is discharged, admitted elsewhere the next day now septic, and dies a month later. The family wants to know who is responsible and whether the law will even let them ask that question in court.
That scenario is common in Texas medical malpractice cases. But when the treating physicians work for a state university hospital, the road to a jury runs through a threshold question that has nothing to do with the standard of care. Before anyone hears the facts, the family has to show that sovereign immunity was waived. Under the Texas Tort Claims Act (“TTCA”), that waiver turns on a narrow statutory hook: whether the injury came from the use of tangible personal property.
So what happens when the family’s theory is that the doctors’ own hands, unwashed and carrying bacteria, were the instrument of harm? Does a human hand count as “tangible personal property” under the TTCA? Texas courts had never squarely answered that question.
The First District Court of Appeals in Houston answered it in University of Texas Health Science Center at Houston v. Bustos, No. 01-24-00381-CV (Tex. App.—Houston [1st Dist.] Mar. 12, 2026). The court’s analysis is a useful look at the outer edge of the TTCA’s waiver, the role of jurisdictional evidence in immunity fights, and the strategic misstep that can sink a plaintiff’s case before it starts.
Facts & Procedural History
Gloria Ann Reese was admitted to TIRR Memorial Hermann Hospital for inpatient rehabilitation and physical therapy. Her attending physician was Dr. Nikola Dragojlovic, an employee of the University of Texas Health Science Center at Houston (“UTHSC-H”). On admission, a urinalysis showed large amounts of Klebsiella, a bacterium that causes lung and urinary-tract infections. Over an almost three-week stay, Reese was never treated for a bacterial infection. A second UTHSC-H physician, Dr. Maryam Ibrahim Sultan, discharged her without treating it.
The day after discharge, Reese was admitted to Methodist Hospital in Baytown. She was septic, with a serious bacterial infection in both her lungs and urine. She got antibiotics, but she died about a month later. Her cause of death was listed as acute respiratory failure with hypoxia.
Reese’s heirs sued UTHSC-H in Harris County district court. They alleged the two physicians were negligent in a number of ways: failing to pay attention to lab results, failing to recognize the signs of sepsis, failing to treat the infection, failing to coordinate care, and discharging Reese in a medically critical condition. But the heirs told the trial court what their case really came down to. The gravamen of their claims was that Drs. Dragojlovic and Sultan used unsanitary hands when they treated Reese and passed the Klebsiella to her.
UTHSC-H filed a Plea to the Jurisdiction. It argued that none of the allegations fell within the TTCA’s limited waiver of immunity. It backed the plea with affidavits from both doctors describing their hand-sanitizing routines, their use of gloves and covered stethoscopes, and their own healthy status while treating Reese. The heirs filed a response but offered no jurisdictional evidence of their own and never asked for jurisdictional discovery. They argued instead, as a matter of law, that a physician’s hands are “tangible personal property” under the TTCA.
The trial court agreed and denied the plea. UTHSC-H took an interlocutory appeal. The First District reversed and rendered judgment dismissing the claims for lack of subject-matter jurisdiction. To see how the court got there, we first have to understand what sovereign immunity is and what it takes to get around it.
Sovereign Immunity and the TTCA’s Tangible-Property Waiver
Sovereign immunity shields the State and its agencies from lawsuits and money damages unless the Legislature has expressly waived it. UTHSC-H is a state agency, so it sits squarely inside that protection. Without a waiver, no court has subject-matter jurisdiction over the suit, no matter how compelling the underlying facts are.
Texas courts read waivers of immunity narrowly. The Legislature’s intent to waive has to be clear and unambiguous, a rule that comes from both the case law and Section 311.034 of the Texas Government Code. The practical effect is that ambiguity gets resolved in favor of immunity, not the claimant.
The TTCA is the main statutory vehicle for suing governmental units in Texas, and it waives immunity in three narrow buckets: the negligent operation of motor vehicles, premises defects, and the condition or use of tangible personal property. The third bucket is what Bustos is about, and it is the one most often litigated in state-hospital and medical-negligence cases.
Section 101.021(2) of the Texas Civil Practice and Remedies Code waives immunity for personal injury or death “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.” That sounds simple. In practice it generates a lot of litigation at the edges.
The statute never defines “tangible personal property.” Courts treat it as physical, movable objects, things you can possess, transfer, and put to use. Equipment, instruments, medications, and vehicles have all been run through the waiver. What no published opinion had squarely decided until Bustos was whether a physician’s hands fit that category. And the waiver has a second limit: the property has to actually cause the injury, not just be present or incidentally involved. That distinction matters in medical cases, where a human actor usually stands between any object and the harm.
Are a Doctor’s Hands “Property”? How the Court Analyzed It
The heirs argued that a doctor uses his hands for the specific purpose of diagnosing and treating patients, so unclean hands used in patient care are “tangible personal property” under the TTCA. The court rejected that argument. It acknowledged the question of a doctor’s hands was one of first impression, but it was not writing on a blank slate.
The Fort Worth Court of Appeals had faced a close cousin of the argument in a food-poisoning case. In University of North Texas v. Harvey, 124 S.W.3d 216 (Tex. App.—Fort Worth 2003, pet. denied), campers at a summer drill-team camp were severely sickened by E. coli after employees failed to wash their hands before handling food. The court held that negligently failing to adequately wash one’s hands does not allege a use or condition of tangible personal or real property. Harvey was not a doctor-patient case, but its reasoning about hand-washing mapped straight onto the theory in Bustos.
The Tyler Court of Appeals went a step further in McClain v. University of Texas Health Center, 119 S.W.3d 4 (Tex. App.—Tyler 2002, pet. denied). There, a surgical nurse who worked on a heart-surgery patient later tested positive for the same bacterium that infected him. Even assuming the nurse was infected during the surgery, the court held she was not herself tangible personal or real property under the TTCA. The heirs in Bustos had raised McClain in the trial court but conceded that a “dirty instruments” theory would not carry their case. They chose to rest entirely on unclean hands, which the First District then squarely rejected.
The court then reached past the medical context to a broader line of Texas authority holding that a human body is not “property” under the TTCA. In University of North Texas Health Center v. Gonzalez, the Fort Worth court held that harvesting organs from the wrong body and returning it for burial was a misuse of information, not tangible property. Implicit in that holding is that a human body is not property at all. In Doe v. City of Fort Worth, 646 S.W.3d 889 (Tex. App.—Fort Worth 2022, no pet.), a case involving the sexual assault of a teenager at a city-run animal shelter, the court put it bluntly: “[a] human is not an item of tangible personal property that can be ‘used’ within the meaning of the TTCA.”
The Texas Supreme Court has said the same thing in the insurance context. In Evanston Insurance Co. v. Legacy of Life, Inc., 370 S.W.3d 377 (Tex. 2012), the court considered whether tissues harvested and sold from a deceased woman’s body were “tangible property” under an insurance policy. It held that such tissues are quasi-property of the next of kin but are not property in the traditional sense, grounding that in the English common-law rule that a dead body is not the subject of property.
From there the court drew a straight line. If a dead body is not property, then a living human being cannot be property either, a point the Thirteenth Amendment settles by prohibiting the ownership of human beings. As one Houston opinion put it, “[a] wife is not a chattel.” The law has consistently refused to treat people as objects that can be owned or used as property.
The court also spelled out the practical fallout of ruling the other way. If a doctor’s hands were tangible personal property, then every physical exam, every touch, every hands-on procedure would potentially waive immunity. Sovereign immunity would fall not because of any instrument or device, but simply because a state-employed doctor put hands on a patient. That cannot be squared with the Legislature’s plain intent to create a limited, not complete, waiver. So the court held what no Texas court had held before: a state-employed doctor’s hands alone are not “tangible personal property” for purposes of the TTCA, and the trial court erred in denying the plea.
The Second Ground: Unrebutted Affidavits and the Heirs’ Strategic Misstep
The court did not stop at the tangible-property ruling. It gave a second, independent reason to dismiss, one that turned on the evidence in the record. Even if a doctor’s hands were tangible personal property, the court said, the undisputed jurisdictional evidence showed the doctors were not infected when they treated Reese and that they followed customary hand-sanitizing protocols.
UTHSC-H’s plea rested on detailed affidavits from both doctors. Each described sanitizing their hands before and after seeing a patient, gloving up before any physical exam, and using covered stethoscopes. Each attested to following those same steps with Reese. Each swore they were not ill or infected during the relevant time. And each noted that, at the height of the COVID-19 pandemic, Memorial Hermann required daily symptom attestations from clinical staff before they could treat patients.
That evidence shifted the burden. When a plea challenges the existence of jurisdictional facts, the court applies a standard that mirrors summary judgment: it takes the nonmovant’s evidence as true and indulges every reasonable inference in its favor, but undisputed evidence gets its effect. That framework comes from Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004), which held that when a plea challenges jurisdictional facts rather than just the pleadings, the court may and should consider the evidence. Once the government provides evidentiary support for its plea, the plaintiff has to come forward with evidence showing a genuine fact dispute on the jurisdictional issue. If the evidence is undisputed, the trial court must grant the plea as a matter of law.
The heirs did not meet that burden. They objected that the affidavits went to the merits rather than jurisdiction, but they never got a ruling on the objection, which waived it. That point matters for practitioners: if you object to jurisdictional evidence, you have to secure an actual ruling to preserve it for appeal. More important, the heirs offered no evidence of their own. They produced nothing showing either doctor was infected, that sanitation protocols were skipped, or that any instrument transmitted the bacteria.
The heirs also argued that Chapter 74 of the Civil Practice and Remedies Code, which limits discovery before expert reports are filed in health-care liability claims, kept them from getting the evidence to fight the affidavits. The court disagreed. Chapter 74’s limits apply to expert-report discovery, not jurisdictional discovery. Texas courts routinely let parties conduct jurisdictional discovery, and should allow a reasonable opportunity for it, when the government challenges jurisdictional facts. But the heirs never asked for that discovery in the trial court. With the affidavits standing unrebutted, the First District held the plea had to be granted as a matter of law, independent of the tangible-property ruling.
The Takeaway
Bustos settles a previously open question in Texas law: a state-employed physician’s hands are not tangible personal property under the TTCA, and a claim resting only on unclean hands in patient care does not waive sovereign immunity. That closes off what might feel like an intuitive theory for families whose loved ones caught infections in the care of state-hospital doctors. The case also shows what happens when a plaintiff bets everything on a legal argument and leaves the factual record blank. When a government defendant files evidentiary affidavits, requesting and getting jurisdictional discovery is not optional; it is how you preserve the fact dispute that keeps the case alive. Families and their counsel pursuing negligence claims against state medical institutions should take the lesson to heart: you need both a statutory hook for the waiver and a record that actually supports it. For heirs pursuing survival or wrongful-death claims on behalf of an estate, that groundwork often makes the difference between a case that survives a plea and one that is dismissed before the facts are ever heard.
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