COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00029-CV
BRENDA LUND, IN HER APPELLANTS
INDIVIDUAL CAPACITY, AND
KRISTIN ALRICK, IN HER
INDIVIDUAL CAPACITY
V.
ERIC AND RUTH GIAUQUE, APPELLEES
INDIVIDUALLY AND AS NEXT
FRIEND OF H.G., N.G., M.G., C.G.,
AND B.G., MINOR CHILDREN
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Appellants Brenda Lund and Kristin Alrick appeal from the trial court’s
order denying their motion to dismiss, which raised the statutory right to dismissal
conferred by civil practice and remedies code section 101.106(f). Tex. Civ. Prac.
& Rem. Code Ann. § 101.106(f) (West 2011). We reverse the trial court’s order
and render judgment dismissing Appellees’ claims against Lund and Alrick. See
Tex. R. App. P. 43.2(c).
I. BACKGROUND
In 2006, the Texas Department of Family and Protective Services (DFPS)
obtained a court order terminating parental rights as to four siblings (the
children). After the termination, the children were placed with a relative in El
Paso, Texas. It appears that the children were sexually and physically abused
during that placement, which led DFPS to remove the children. This abuse
caused the children to become “sexually reactive.”
Meanwhile, appellees Eric and Ruth Giauque decided to adopt several
children and signed a contract with Building Arizona Families (BAF), a non-profit
adoption agency in Arizona, to accomplish that goal. In November 2008 and
soon after the children were removed from their relative in El Paso, Alrick (a
DFPS adoption caseworker) and Lund (a DFPS adoption supervisor) arranged
with BAF to place the children with the Giauques for possible adoption. The
children “perpetrated sexually reactive behaviors” on three of the Giauques’ five
biological children. In February 2009, the Giauques relinquished the children,
who were returned to DFPS’s custody.
The Giauques filed suit against Alrick and Lund, raising claims for
negligence or gross negligence in the placement of the children with the
2
Giauques. 1 The Giauques specified that their claims were not brought under the
Texas Tort Claims Act (the Act) and that they were bringing their claims against
Alrick and Lund in their individual capacities. 2 Alrick and Lund answered and
asserted the defense of immunity. They also filed a motion to dismiss the
Giauques’ claims on the basis of section 101.106(f), which provides:
If a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment
and if it could have been brought under [the Act] against the
governmental unit, the suit is considered to be against the employee
in the employee’s official capacity only. On the employee’s motion,
the suit against the employee shall be dismissed unless the plaintiff
files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the
date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).
In short, section 101.106(f) extends governmental immunity to acts of
individual governmental employees acting within the scope of their employment. 3
LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 89–90 (Tex. 2011).
1
The Giauques originally raised a claim for federal civil-rights violations but
later amended their complaint to delete their federal claim.
2
The Giauques’ attempt to place their common-law tort claims outside the
reach of the Act is of no moment. It is clear that “any tort claim against the
government is brought ‘under’ the Act for purposes of section 101.106, even if
the Act does not waive immunity.” Franka v. Valasquez, 332 S.W.3d 367, 375
(Tex. 2011) (quoting section 101.106(f)).
3
The Giauques did not plead in the trial court and do not assert on appeal
that Alrick and Lund were not acting within the general scope of their
employment when they placed the children for adoption through BAF. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.001(5) (West Supp. 2013); Ballantyne v.
Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004).
3
Alrick and Lund raised their right to dismissal under section 101.106(f) shortly
after the supreme court held that section 101.106(f)’s phrase “could have been
brought” applies to claims raised under the Act “regardless of whether the Act
waives immunity from suit.” Franka, 332 S.W.3d at 385. Therefore, Franka
mandates dismissal of a governmental employee sued in her individual capacity
under section 101.106(f) even if the governmental employer’s immunity is not
waived by the Act. Id. at 375–81.
Instead of dismissing Alrick and Lund and naming DFPS as the defendant
as contemplated by section 101.106(f), the Giauques instead argued that section
101.106(f) violates the due-process guarantee provided by the open-courts
provision of the Texas Constitution “as to [the Giauques] and as to the People of
Texas as a whole.” See Tex. Const. art. I, § 13 (“All courts shall be open, and
every person for an injury done him, in his lands, goods, person or reputation,
shall have remedy by due course of law.”); Sax v. Votteler, 648 S.W.2d 661, 664
(Tex. 1983) (recognizing article 1, section 13 is due-process guarantee).
On March 11, 2011, the trial court held a hearing on Alrick and Lund’s
motion to dismiss. Although a record of the hearing is not a part of the appellate
record, it appears the trial court requested supplemental briefing on the open-
courts issue. The trial court later requested further briefing regarding whether
Alrick and Lund were acting in loco parentis as to the children in facilitating their
adoption, which the trial court believed would render the application of section
101.106(f) a violation of the open-courts provision because an in-loco-parentis
4
claim of negligence was well established at common law. After the briefing was
completed, the trial court held a non-evidentiary hearing on September 30, 2011,
to determine “whether or not the . . . Act effectively immunizes the defendants,
and more specifically, whether or not the Open Court provision has been
impacted by that immunization.” Because the trial court determined more
evidentiary discovery was needed to determine whether Alrick and Lund acted in
loco parentis, it again delayed ruling on the motion to dismiss.
On October 26, 2012, the trial court held a third hearing on the motion to
dismiss and stated the pertinent issue as “whether or not the Open Courts
Provision is violated by . . . the manner in which the [Texas] Supreme Court[’s]
. . . interpretation of subsection (f) [in Franka] creates a violation of the Open
Courts Doctrine.” The trial court then denied Alrick and Lund’s motion to dismiss
based on the trial court’s belief that application of section 101.106(f) would
violate the open-courts provision. Alrick and Lund now appeal from the trial
court’s interlocutory order denying their motion to dismiss. See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(5) (West Supp. 2013); City of Arlington v. Randall,
301 S.W.3d 896, 902 n.2 (Tex. App.—Fort Worth 2009, pet. denied). In a sole
issue, they argue that the trial court erred by denying their motion to dismiss
based on section 101.106(f).
5
II. DISCUSSION
On appeal, the Giauques do not assert that section 101.106(f) is
inapplicable to their suit. 4 Thus, the propriety of Franka is not at issue. See
Franka, 332 S.W.3d at 367 (noting constitutional challenge to section 101.106(f)
not raised). Instead, the Giauques argue that section 101.106(f)’s mandatory
dismissal of a governmental employee sued in her individual capacity, even in
the absence of a waiver of sovereign immunity, violates the open-courts
provision. In other words, they argue that section 101.106(f)’s statutory
extension of governmental immunity to acts of individual government employees
acting within the scope of their employment unconstitutionally violates their due-
process rights under the open-courts provision of the Texas Constitution.
A. STANDARDS OF REVIEW
1. Constitutional Review
The open-courts provision prohibits arbitrary or unreasonable legislative
action that abrogates well-established, common-law remedies. Lebohm v. City of
Galveston, 275 S.W.2d 951, 955 (Tex. 1955) (op. on reh’g). This provision
ensures that Texas citizens bringing common-law causes of action will not
unreasonably be denied the right to redress in the courts. Hanks v. City of Port
Arthur, 48 S.W.2d 944, 945 (Tex. 1932). “[A] mere difference of opinion, where
4
The Giauques raised this argument in the trial court but abandoned it after
the supreme court denied rehearing in Franka.
6
reasonable minds could differ, is not a sufficient basis for striking down legislation
as arbitrary or unreasonable.” Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968).
Because we are asked to review a trial court’s legal determination—that
section 101.106(f) violates the Texas Constitution—we must look at the issue de
novo. See Stockton v. Offenbach, 336 S.W.3d 610, 614–15 (Tex. 2011); accord
Nat’l Rifle Ass’n of Am. v. McCraw, 719 F.3d 338, 343 (5th Cir. 2013) (applying
de-novo standard of review to issue of constitutionality of Texas state statute). In
such a review, we begin with the presumption that the statute is constitutional.
Tex. Gov’t Code Ann. § 311.021(1) (West 2013); Sax, 648 S.W.2d at 664; see
also Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283,
285 (Tex. 2010); HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex. 1994). As
such, we must attempt to “interpret legislative enactments in a manner to avoid
constitutional infirmities.” Barshop v. Medina Cnty. Underground Water
Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996).
The Giauques bore the burden at trial (and now on appeal) to show that
the statute unconstitutionally violates the open-courts provision. See Rankin,
307 S.W.3d at 285. The Giauques assert that Alrick and Lund bear the burden to
establish the constitutionality of section 101.106(f). However, case law is clear
that the party challenging a statute’s constitutionality has the burden of proving
that the statute fails to meet constitutional requirements. See Walker v.
Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); Zaborac v. Tex. Dep’t of Pub. Safety,
168 S.W.3d 222, 225 (Tex. App.—Fort Worth 2005, no pet.). However, and as
7
stated above, we review the trial court’s constitutional conclusion, and all legal
determinations leading to that conclusion, de novo, which allows us to “take a
completely fresh look at the trial court’s rulings.” W. Wendell Hall et al., Hall’s
Standards of Review in Texas, 42 St. Mary’s L.J. 3, 14 (2010).
2. Type of Constitutional Challenge
To establish an open-courts violation, the Giauques must show that (1) the
statute restricts a well-recognized, common-law cause of action (the well-
recognized prong) and (2) the restriction is unreasonable or arbitrary when
balanced against the Act’s purpose (the balance prong). 5 Thomas v. Oldham,
895 S.W.3d 352, 357 (Tex. 1995); Sax, 648 S.W.2d at 664; Flores v. Law, 8
S.W.3d 785, 787 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).
This two-pronged inquiry applies to open-courts issues whether the
underlying challenge is an as-applied or a facial attack. Boyd v. Kallam, 152
S.W.3d 670, 680 (Tex. App.—Fort Worth 2004), pets. denied, 232 S.W.3d 774
(Tex. 2007). Even so, the well-recognized prong is affected by the type of
challenge raised. With a facial challenge, the party charging that a statute is
unconstitutional must show that “the statute, by its terms, always operates
5
We agree with Alrick and Lund that we must look to the purposes served
by the Act as a whole and not just to the purposes served by section 101.106(f).
Cf. Franka, 332 S.W.3d at 380 (noting error to not consider “the Act as a whole”
in interpreting section 101.106). The Giauques concede that our determination
regarding the legislature’s purpose “is the same regardless of whether the Court
examines the issue in terms of section 101.106(f) specifically . . . or the Tort
Claims Act as a whole.”
8
unconstitutionally.” Barshop, 925 S.W.2d at 627. Under an as-applied
challenge, on the other hand, “a party concedes that a statute is generally
constitutional but contends that the statute is unconstitutional when applied to a
particular person or set of facts.” City of Corpus Christi v. Pub. Util. Comm’n of
Tex., 51 S.W.3d 231, 240 (Tex. 2001). Thus, an as-applied challenge looks to
the particular set of facts before the court in determining whether the cause of
action was well recognized at common law, while a facial challenge does not look
to the specific facts of the case at hand.
The Giauques assert that their challenge raises the unconstitutionality of
section 101.106(f) on its face or “as applied to a broad class of people,” i.e.,
persons whose claims are not included within the Act’s waiver of immunity. We
question whether, indeed, there is a separate and distinct challenge that a statute
is unconstitutional as applied to a broad class of people. In fact, case law
recognizes only two constitutional challenges to a statute: as-applied and facial.
See, e.g., HCA Healthcare Corp. v. Tex. Dep’t of Ins., 303 S.W.3d 345, 349 (Tex.
App.—Austin 2009, no pet.). We do not need to wade into this argument,
however, because even if there were such a constitutional challenge, it would be
subject to the same two-pronged analysis applicable to as-applied and facial
challenges and, thus, the dictates of the balance prong, which is not affected by
the type of constitutional challenge raised. See generally Boyd, 152 S.W.3d 680
(recognizing uniform application of two-pronged, open-courts inquiry to as-
applied and facial challenges to statute). Further, the tenor of the Giauques’ trial
9
and appellate arguments and the fact that the trial court ruled the statute
unconstitutional on an as-applied basis rebuff their attempt to avoid an as-applied
analysis. Cf. A.H.D. Houston, Inc. v. City of Houston, 316 S.W.3d 212, 222 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (looking behind label placed on
constitutional challenge and determining appellants’ attempts to avoid facial-
challenge test unavailing).
B. APPLICATION
1. Franka and Its Precedential Import
As recognized above, the supreme court in Franka was not presented with
a constitutional challenge to section 101.106(f). However, it opined that an open-
courts challenge to the statute would not be tenable:
We recognize that the Open Courts provision of the Texas
Constitution “prohibits the Legislature from unreasonably abrogating
well-established common-law claims,” but restrictions on
government employee liability have always been part of the tradeoff
for the Act’s waiver of immunity, expanding the government’s own
liability for its employees’ conduct, and thus “a reasonable exercise
of the police power in the interest of the general welfare.”
Franka, 332 S.W.3d at 385 (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198,
202 (Tex. 2002) and Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504,
520 (Tex. 1995)). Relying on this language in Franka, one of our sister courts
and two federal trial courts have concluded that section 101.106(f) does not
violate the open-courts provision because its restriction is reasonable when
balanced against its purpose and is, thus, not arbitrary or unreasonable. Zepeda
v. Sizemore, No. SA:11-CV-901-DAE, 2013 WL 4677964, at *7–9 (W.D. Tex.
10
Aug. 30, 2013); Kelley v. Chambers Cnty., No. 3:12-CV-00194, 2013 WL
1003455, at *4 (S.D. Tex. Mar. 13, 2013); Harold v. Carrick, No. 01-12-00175-
CV, 2013 WL 4828744, at *3 (Tex. App.—Houston [1st Dist.] Sept. 10, 2013, no
pet. h.) (mem. op.); Williams v. Nealon, 394 S.W.3d 9, 13–14 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied); cf. Hintz v. Lally, 305 S.W.3d 761, 773
(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding, before Franka was
decided, section 101.106(f) did not violate open-courts provision because statute
was “reasonable when balanced against the statute’s purpose”).
While recognizing the above-quoted language from Franka and its
potential import to the survival of their claims against Alrick and Lund, the
Giauques assert that because the Franka language was dictum, we instead are
bound by several cases decided by the supreme court before Franka: Sax, 648
S.W.2d at 667, Lucas v. United States, 757 S.W.2d 687, 692 (Tex. 1988)
(certified questions), and Weiner v. Wasson, 900 S.W.2d 316, 319–20 (Tex.
1995). The Giauques argue that these cases demonstrate that section
101.106(f) violates the open-courts doctrine under the balance prong because no
substitute remedy was provided. Indeed, the trial court seemed to agree with this
argument.
a. Dictum
First, the language in Franka, while dictum, was not a brusque statement
unworthy of deference; rather, the supreme court’s statement that section
101.106(f) would survive the balance prong of an open-courts challenge was tied
11
to its extensive discussion of the legislative purposes of and the legislature’s
legitimate use of police powers in section 101.106. Franka, 332 S.W.3d at 382–
85. The precedential value of dictum is based on its classification: obiter dictum
or judicial dictum. Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied). Obiter dictum is a statement not necessary to the
determination of the case and that is neither binding nor precedential. Id.
Conversely, judicial dictum is a statement made deliberately after careful
consideration and for future guidance in the conduct of litigation. Palestine
Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964). Such a statement
is “at least persuasive and should be followed unless found to be erroneous.” Id.
Because the supreme court’s conclusion regarding section 101.106(f) and the
open-courts provision was the natural consequence of its reasoned and careful
analysis of the legislature’s use of its police power in the interest of the general
welfare, its open-courts conclusion was judicial dictum and should be viewed at
least as persuasive. Cf. Elledge v. Friberg–Cooper Water Supply Corp., 240
S.W.3d 869, 870 (Tex. 2007) (rejecting court of appeals’s determination that
supreme court’s prior statement was obiter dictum because although prior
statement not “essential to the outcome,” it “should have been followed”);
Reardon v. Reardon, 359 S.W.2d 329, 330 (Tex. 1962) (recognizing dicta in
previous case “deliberately made by this Court after a careful consideration” and
suggesting it was due some degree of deference).
12
b. Cases decided before Franka
Second, the cases primarily relied on by the Giauques to overcome the
balance prong do not support their argument that a substitute remedy is required
to address the balance prong of an open-courts analysis. Almost sixty years
ago, the supreme court explicitly held that while a reasonable substitute remedy
alone might be sufficient to defeat an open-courts challenge, such a remedy is
not required to survive an open-courts attack under the balance prong:
[L]egislative action withdrawing common-law remedies for well
established common-law causes of action for injuries to one’s “lands,
goods, person or reputation” is sustained only when it is reasonable
in substituting other remedies, or when it is a reasonable exercise of
the police power in the interest of the general welfare.
Lebohm, 275 S.W.2d at 955 (quoting the open-courts provision) (emphasis
added). 6 This has been described as a recognition “that an individual quid pro
quo is unnecessary if a societal quid pro quo exists.” Lucas, 757 S.W.2d at 697
(Gonzalez, J., dissenting). The Giauques argue that the supreme court “refined”
6
It has been suggested that the balance prong as set forth in Lebohm is a
two-part inquiry:
If the Legislature has provided or left in place a reasonable
alternative remedy, judicial scrutiny is at an end, and properly so. . . .
If the Legislature has not provided or left in place a reasonable
alternative remedy, however, the Constitution requires a second,
separate inquiry. The courts must independently determine if the
legislative action constitutes a reasonable exercise of the police
power.
Lucas, 757 S.W.2d at 718 (Phillips, C.J., dissenting). This is a clear and helpful
statement of the Lebohm holding and the balance prong.
13
the Lebohm test in Sax, Weiner, and Lucas. They contend that these cases
mandate that the legislature’s means to achieve a valid purpose may never be
held reasonable in the absence of a substitute remedy.
In Sax, the supreme court concluded that a statute of limitations, which
limited a minor’s opportunity to file a healthcare-liability claim, violated the open-
courts provision because the means (i.e., the limitation statute as it applied to
minors) used by the legislature to achieve its purpose (i.e., controlling the rates
insurers charged by reducing the length of time insureds are exposed to potential
liability) were not “reasonable when . . . weighed against the effective abrogation
of a child’s right to redress.” 648 S.W.2d at 667. The supreme court then held
that both prongs of the open-courts test were met to establish an open-courts
violation because the “statute effectively abolishes a minor’s right to bring a well-
established common law cause of action without providing a reasonable
alternative.” Id. However, this holding does not mandate that a substitute
remedy must be provided to satisfy the balance prong. It was merely a
conclusion, expressly limited to the facts of that case, that the lack of a substitute
remedy combined with the means used by the legislature and the abrogation of a
right of redress equated to an open-courts violation. Id. at 665–67. Nothing in
Sax vitiated the Lebohm mandate that, alternatively, a reasonable exercise of the
police power in the interest of the general welfare could render the legislature’s
means to achieve a legitimate purpose reasonable and not arbitrary. Indeed, the
Sax court quoted the Lebohm language with approval. Id. at 665.
14
Likewise, Lucas gives the Giauques no succor. In that case, the supreme
court was asked on certified questions to decide whether the damages cap for
healthcare-liability claims violated the open-courts provision of the Texas
Constitution. 757 S.W.2d at 687. In concluding that the cap violated the open-
courts provision, the court stated: “[W]e hold it is unreasonable and arbitrary for
the legislature to conclude that arbitrary damages caps, applicable to all
claimants no matter how seriously injured, will help assure a rational relationship
between actual damages and amounts awarded.” Id. at 691. Although its
holding was based, in part, on the fact that the legislature failed to provide a
substitute remedy (specifically, a patient-compensation fund), the supreme court
did not explicitly hold that the lack of a substitute remedy in all instances would,
ipso facto, compel a conclusion that the legislature’s action was arbitrary or
unreasonable. See id. at 697 (Gonzalez, J., dissenting) (recognizing that lack of
substitute remedy invalidating legislature’s means to achieve purpose was only
majority’s implicit holding); see also id. at 716 (Phillips, C.J., dissenting)
(acknowledging that “Texas restricts arbitrary legislative abolition of well-
recognized common law causes of action under the open courts provision, while
declining to require a quid pro quo whenever common law remedies are
changed”).
Finally, we address the impact of Weiner. In Weiner, the supreme court
looked at the successor statute to the statute considered in Sax. 900 S.W.2d at
318. Because the successor statute was substantially the same as its
15
predecessor, which was found unconstitutional in Sax, the supreme court
similarly concluded that the means used to achieve the legislature’s purpose
were unreasonable when weighed against the abrogation of the minor litigant’s
right of redress. Id. at 318. As with Sax, the Weiner court did not explicitly nullify
the possibility that the abolition of a common-law cause of action could be
justified as a reasonable exercise of police power. Id. at 325 (Owen, J.,
dissenting) (recognizing Sax did not compel an analysis devoid of police-power
exception).
Contrary to the Giauques’ argument that a reasonable substitute remedy is
required to justify the abrogation of a litigant’s right of redress, it is clear that the
Lebohm test to determine whether legislative action is arbitrary or
unreasonable—availability of a substitute remedy or a reasonable exercise of the
legislature’s police power—is alive and well. Recently, the supreme court, in
reviewing a statute of repose for compliance with the open-courts provision,
reaffirmed the relevance of the legislature’s valid exercise of its police power:
But [an] Open Courts analysis is not . . . myopic; focusing solely on
[the litigant’s] lost right to sue ignores the broader societal concerns
that spurred the Legislature to act. . . .
....
In enacting the repose [statute], lawmakers made a
fundamental policy choice: the collective benefits of a definitive cut-
off are more important than a particular plaintiff’s right to sue more
than a decade after the alleged malpractice. . . . The constitutional
inquiry is whether the Legislature acted unreasonably or arbitrarily.
....
16
[The statute of repose] is a reasonable exercise of the
Legislature’s police power . . . .
....
. . . Our constitutional review asks only if the statute represents “a
reasonable exercise of the police power in the interest of the general
welfare,” a review that focuses on whether the legislation is “arbitrary
or unreasonable.”
Rankin, 307 S.W.3d at 287–88, 290, 292 (quoting Lebohm); see also Trinity
River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 261–62 (Tex. 1994)
(citing and applying Lebohm to unsuccessful open-courts challenge to statute of
repose). Likewise, this court and other intermediate courts of appeals explicitly
have recognized, even after Sax, Lucas, and Weiner, that the legislature’s
reasonable exercise of its police power can justify its action in abrogating a
litigant’s well-established, common-law claims, thereby saving the abrogation
from being held as violative of the open-courts provision as an arbitrary or
unreasonable legislative act. See, e.g., Williams, 394 S.W.3d at 12; Rivera v.
Compton, 392 S.W.3d 326, 332–33 (Tex. App.—El Paso 2012, pet. filed); Garza
v. Zachry Constr. Corp., 373 S.W.3d 715, 723–24 (Tex. App.—San Antonio
2012, pet. denied); In re Hinterlong, 109 S.W.3d 611, 631 (Tex. App.—Fort
Worth 2003, orig. proceeding) (op. on reh’g).
Further, we find it instructive that in Lucas and Weiner, the dissenting
justices specifically took issue with the majority opinions because they seemed to
gloss over the fact that legislative action could be justified as a valid exercise of
17
its police power and to rely exclusively on the lack of a substitute remedy in
striking down the statutes at issue under the open-courts provision. Weiner, 900
S.W.2d at 324–26 (Owen, J., dissenting); Lucas, 757 S.W.2d at 696–98
(Gonzalez, J., dissenting) & 716–19 (Phillips, C.J., dissenting). In deciding
Franka, the supreme court certainly was aware of the implicit dilution or
obscuring of the balance prong as set out in Lebohm and pointed out by the
dissenting justices in Weiner and Lucas, and it firmly restated the Lebohm
balance prong. 332 S.W.3d at 385; see Lucas, 757 S.W.2d at 716 (Phillips, C.J.,
dissenting) (noting majority “obscures” the correct balance prong). Indeed, the
dissenting justices in Franka did not take issue with the majority opinion’s
statement of the appropriate test for an open-courts challenge, which included
both the substitute-remedy language and the police-power language under the
balance prong. 332 S.W.3d at 394 (Medina, J., dissenting). Thus, we follow
Lebohm and Franka and conclude that the balance prong considers whether the
legislature’s action was arbitrary or unreasonable by deciding (1) whether a
substitute remedy was provided or (2) whether the legislative action was a
reasonable exercise of the legislature’s police power in the interest of the general
welfare.
2. The Balance Prong
We start with an analysis of the balance prong. See Zepeda, 2013 WL
4677964, at *9 (not discussing well-recognized prong and deciding open-courts
challenge solely on basis of balance prong); Harold, 2013 WL 4828744, at *3
18
(same); Williams, 394 S.W.3d at 14 (same). No party suggests that the
Giauques have been provided with a reasonable, substitute remedy to counteract
the effect of section 101.106(f) on their claims. Thus, we must now
independently determine whether the legislature reasonably exercised its police
power in the interest of the general welfare in enacting section 101.106(f). See
Lucas, 757 S.W.2d at 718 (Phillips, C.J., dissenting).
Before the Act was passed, if suit against a governmental entity was
barred by immunity, a plaintiff could sue and recover against a government
employee in her individual capacity even though she could be shielded by official
immunity if she were sued in her official capacity. Franka, 332 S.W.3d at 383.
Further, the State could waive the government’s immunity. See Prairie View
A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012); Hosner v. DeYoung, 1
Tex. 764, 769 (1847). Indeed, in 1969, the legislature passed the Act, which
included limited waivers with respect to specific types of claims against
governmental entities. Act of May 14, 1969, 61st Leg., R.S., ch. 292, 1969 Tex.
Gen. Laws 874, 874–79 (current version at Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.001–.109 (West 2011 & Supp. 2013)). Admittedly, this avenue, which
provides for common-law recovery against the governmental entity, is narrow.
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).
But its purpose was to mandate that plaintiffs pursue lawsuits against
governmental entities rather than the entities’ employees when the claims are
based on the employee’s conduct within the scope of employment. Tex. Adjutant
19
Gen.’s Office v. Ngakoue, 56 Tex. Sup. Ct. J. 1131, 2013 WL 4608867, at *1
(Aug. 30, 2013). In short, the legislature “sought to discourage or prevent
recovery against an employee.” Franka, 332 S.W.3d at 384.
To avoid the Act’s restrictions on cognizable claims against the
governmental entity, claimants began to sue the individual employees of
governmental entities and not the entities. Ngakoue, 2013 WL 4608867, at *7
(citing Garcia, 253 S.W.3d at 656). As a result, the 1985 legislature added a
provision to the Act that barred any action against governmental employees after
claims against the governmental entity were reduced to a judgment or settled.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242,
3305 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 101.106).
Claimants, however, continued to sue both the governmental entity and its
employee. Garcia, 253 S.W.3d at 656. The result was an increase in litigation
costs for the government. Id. The legislature responded by amending section
101.106 in 2003 to force claimants
to decide at the outset whether an employee acted independently
and is thus solely liable, or acted within the general scope of his or
her employment such that the governmental unit is vicariously liable,
thereby reducing the resources that the government and its
employees must use in defending redundant litigation and
alternative theories of recovery. By requiring a plaintiff to make an
irrevocable election at the time suit is filed between suing the
governmental unit under the . . . Act or proceeding against the
employee alone, section 101.106 narrows the issues for trial and
reduces delay and duplicative litigation costs.
20
Id. at 657. In other words, the legislature sought to limit a common-law
claimant’s tort remedy against a governmental employee to those remedies
provided under the Act against the governmental entity. Franka, 332 S.W.3d at
385; Michael S. Hull et al., House Bill 4 & Proposition 12: An Analysis with
Legislative History, Part Three, 36 Tex. Tech L. Rev. 169, 292 (2005). The
amendment was an attempt to “address the open courts objections in Sax.” Hull,
House Bill 4, supra, at 190. “As a result, the need for determining if official
immunity applies is eliminated.” Id. at 293.
We conclude that the legislature’s action in enacting section 101.106(f)
was a reasonable exercise of its police power to achieve the societal goal of
limiting claims against individual governmental employees. See id. at 292
(“Official immunity benefits the public by removing the threat of personal liability
for officials who should be vigorously administering the policies of government.”)
Indeed, “restrictions on government employee liability have always been part of
the tradeoff for the Act’s waiver of immunity, expanding the government’s own
liability for its employees’ conduct.” Franka, 332 S.W.3d at 385. The fact that
the governmental entity’s liability in this case was not expanded under the Act
does not affect the underlying reasonableness of the purpose the legislature
sought to codify through section 101.106(f). See Ngakoue, 2013 WL 4608867, at
*7 n.12 (noting language of subsection (f) chosen “in furtherance of the purposes
of the statute”). Therefore, the legislature did not act arbitrarily or unreasonably,
which is fatal to the Giauques’ open-courts claim. See Barshop, 925 S.W.2d at
21
629 (cautioning statutes should be interpreted “in a manner to avoid
constitutional infirmities”); Lucas, 757 S.W.2d at 721 (Phillips, C.J., dissenting)
(cautioning that a “carefully crafted legislative response to a major social
problem” cannot be found unconstitutional merely because the solution is
“distasteful”). Because we conclude that the Giauques have failed to show that
section 101.106(f) violates the open-courts provision under the balance prong,
we need not address whether the Giauques’ claims were well recognized at
common law. Cf. Young v. Jones Lumber Co., 784 S.W.2d 949, 950 (Tex.
App.—Houston [14th Dist.] 1990, writ denied) (declining to address balance
prong of open-courts analysis after concluding well-recognized prong not
satisfied).
III. CONCLUSION
We sustain Alrick and Lund’s issue, reverse the trial court’s order, and
render judgment dismissing the Giauques’ claims against Alrick and Lund under
section 101.106(f).
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, MCCOY, and GABRIEL, JJ.
DELIVERED: October 31, 2013
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