NO. 07-10-00052-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JUNE 4, 2010

TOM UPCHURCH, JR., WAYNE B. BARFIELD AND WAYNE B. BARFIELD, P.C., APPELLANTS

v.

COLLIN J. FOWLER AND BARBARA SUE FOWLER, INDIVIDUALLY AND AS NEXT FRIENDS OF WILLIAM JAMES FOWLER, DECEASED, JOE ROMO AND FLOYD TUTSON, APPELLEES

 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 79,998-A; HONORABLE EDWARD LEE SELF, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellants, Tom Upchurch, Jr., Wayne B. Barfield, and Wayne B. Barfield, P.C., have filed a motion for voluntary dismissal of their notice of appeal.  See Tex. R. App. P. 42.1(a)(1).  No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. Id.  All costs related to this appeal are assessed against appellants. See Tex. R. App. P. 42.1(d).  If dismissal will prevent appellees from seeking relief to which they would otherwise be entitled, the Court directs appellees to file a timely motion for rehearing.  No motion for rehearing from appellants will be entertained.

                                                                                                Mackey K. Hancock

                                                                                                            Justice

ought upon the basis of §101.106(f) of the Civil Practice and Remedies Code which provides for such dismissal if the movant is an employee of a governmental unit, the conduct involved occurred within the general scope of that employee’s employment, and the suit could have been brought against the governmental unit or entity.  Tex. Civ. Prac. & Rem. Code Ann. §101.106(f) (Vernon 2011).  The parties challenged only whether the third condition had been met.  We originally affirmed the trial court’s order of dismissal finding that the suit could not have been brought against the nurses’ employer due to sovereign immunity.  Clark v. Sell, 228 S.W.3d 873, 875 (Tex. App.– Amarillo 2007).

            Our decision was reversed by the Texas Supreme Court and remanded to us[1] in light of that Court’s decision in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011). In Franka, the Court held that for purposes of §101.106(f), suit “could have been brought” against a governmental unit entitled to sovereign immunity regardless of whether sovereign immunity had been waived.  Id. at 385.  In light of that decision, we reverse the order of the trial court and render judgment dismissing the claims against Clark, Rodriguez, and Ortiz.  Tex. R. App. P. 43.3.

                                                                                    Brian Quinn

                                                                                    Chief Justice

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[1]Clark v. Sell, 332 S.W.3d 366, 367 (Tex. 2011).