Opinion filed March 30, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00225-CV

                                                    __________

          STEVE ALAN GARRETT AND TROYLAN GARRETT, Appellants

                                                             V.

                        ECTOR COUNTY HOSPITAL DISTRICT D/B/A

                             MEDICAL CENTER HOSPITAL, Appellee

                                         On Appeal from the 244th District Court

                                                           Ector County, Texas

                                              Trial Court Cause No. C-116,072-A

                                              M E M O R A N D U M  O P I N I O N

Steve Alan Garrett and Troylan Garrett appeal a final summary judgment in favor of Ector County Hospital District d/b/a Medical Center Hospital (Medical Center Hospital) on a claim for personal injury.  We affirm.

On December 12, 2001, Steve Alan Garrett was admitted to the Medical Center Hospital in Ector County for surgery on his right arm.  The purpose of the surgery was to remove the dysfunctional orthopedic hardware already in Steve=s arm and to work on a fractured bone in his arm.  Dr. Orlando T. Garza, the orthopedic surgeon who performed the surgery on Steve, was on the medical staff of Medical Center Hospital but was not an employee of the hospital.

Dr. Garza used a device called the Bovie during the surgery.  The Bovie, in very basic terms, is a metal wand attached to and heated by a power box used to cut and to cauterize.  During the surgery, Dr. Garza laid the Bovie on top of Steve.  Dr. Garza asked the operating personnel to not remove the Bovie because he was still in the process of using it.  The Bovie had an Aon and off@ switch, which was activated when other surgical equipment was set on top of Steve.  As a result, Steve suffered a burn to his penis.

The Garretts brought a personal injury action against Medical Center Hospital asserting, among other things, that Steve was injured when Medical Center Hospital employees failed to provide or utilize a safety holster for the Bovie.  Medical Center Hospital filed a traditional motion for summary judgment asserting that it has no liability because the Garretts= claims do not fit within the waiver of sovereign immunity under the Texas Tort Claims Act.  Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005).   The trial court granted summary judgment in favor of Medical Center Hospital.

In their sole issue on appeal, the Garretts contend there was a question of material fact as to whether Medical Center Hospital is liable for its employees= use of tangible personal property under the Texas Tort Claims act sufficient to defeat summary judgment.

In order to determine if the trial court erred in granting the motion for summary judgment, we must consider the summary judgment evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979).

The county hospital, a governmental unit, is immune from liability for Steve=s injuries unless that immunity is waived by the Texas Tort Claims Act.  Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998); City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995).  Waiver of immunity under the Texas Tort Claims Act is limited.  Section 101.021.  As it pertains to this case, the Texas Tort Claims Act provides that the county hospital is liable for personal injury so caused by a condition or use of tangible personal property if the county hospital would, were it a private person, be liable to the claimant according to Texas law.  Section 101.021(2); Bossley, 968 S.W.2d at 343; Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996).  The Texas Supreme Court defines Ause@ as Ato put or bring [the property] into action or service; to employ for or apply to a given purpose.@  San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex. 2004).  The Texas Supreme Court has interpreted Section 101.021(2) to require that the governmental employee Ause@ the tangible personal property.  Id.

The Garretts argue that the failure of the hospital employees to holster the Bovie which caused the injury amounts to use of tangible personal property under the Texas Tort Claims Act and, thus, a waiver of governmental immunity by Medical Center Hospital.  It is clear from the record that only Dr. Garza used the Bovie and that he further instructed the operating room personnel to leave the device where he placed it C on top of Steve.  The hospital employees did not Ause@ property within the meaning of Section 101.021(2) by not requiring Dr. Garza to use the Bovie holster.  Accordingly, we hold that the Garretts did not demonstrate a waiver of immunity by Medical Center Hospital.  The summary judgment in favor of Medical Center Hospital was proper.

           The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 30, 2006

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.