§ 109.007.Exceptions

Four exceptions, and together they remove much of the state’s claim exposure from the chapter.

An appropriation to pay or indemnify a person for a negligent act or omission in the diagnosis, care, or treatment of a health care or mental health care patient — without regard to whether the claim is based on tort or contract principles.

The tort-or-contract clause forecloses the obvious workaround, so a health care claim pleaded as breach of contract is exempt on the same terms.

An appropriation to pay a claim based on the conduct of a state medical school or of a hospital affiliated with an institution of higher education.

An appropriation to pay a claim based on the conduct of an institution of higher education.

An appropriation to pay a claim based on the conduct of a state law enforcement agency, including the Department of Public Safety, or of a state corrections agency, including the Department of Criminal Justice and the Board of Pardons and Paroles.

The four categories share a feature: they generate the state’s largest and most frequent claims. Medical treatment, university operations, policing and incarceration.

So the chapter’s discipline applies least where liability is greatest, which is the honest way to describe its scope.

The reasoning is defensible in each case. Requiring a teaching hospital or a corrections department to pay claims from its operating appropriation would take money from patient care, teaching or prison operations — services the state provides because nobody else will.

The result is that the agencies most exposed to liability bear the least budgetary consequence from it, which is a trade the Legislature made deliberately rather than an oversight.