the University of Texas Health Science Center at Houston, Bella Patel, M.D., F.C.C.P. Richard W. Smalling, M.D. PhD, Rachshunda Majid, M.D. and Francisco Fuentes, M.D. v. Tomas G. Rios, M.D.

Opinion issued September 1, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-01071-CV
———————————
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT
HOUSTON, BELLA PATEL, M.D., F.C.C.P., RICHARD W. SMALLING,
M.D. PH.D., RACHSHUNDA MAJID, M.D., AND FRANCISCO FUENTES,
M.D., Appellants
V.
TOMAS G. RIOS, M.D., Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2015-23764
DISSENTING OPINION
I respectfully dissent. I disagree with the majority’s refusal to dismiss
appellee Tomas G. Rios’s suit against appellants Bella Patel, M.D., F.C.C.P.,
Richard W. Smalling, M.D., Ph.D., Rachshunda Majid, M.D., and Francisco
Fuentes, M.D. (the “Physician Defendants”), employees of appellant the University
of Texas Health Science Center at Houston (“UTHSC”), on sovereign immunity
grounds. I would dismiss this suit under the election of remedies provision of the
Texas Tort Claims Act (“TTCA”), Texas Civil Practice and Remedies Code section
101.106(e), which provides, “If a suit is filed under [the Tort Claims Act] against
both a governmental unit and any of its employees, the employees shall immediately
be dismissed on the filing of a motion by the governmental unit.” TEX. CIV. PRAC.
& REM. CODE ANN. § 101.106(e) (Vernon 2011).
The majority holds that UTHSC failed to produce evidence of the
jurisdictional fact that the Physician Defendants were employees of UTHSC, an
undisputed governmental entity, and affirms the trial court’s denial of UTHSC’s
motion to dismiss the Physician Defendants. It does not address the central issue on
appeal—whether the trial court erred in permitting Rios to amend his Original
Petition and thereby avoid dismissal of his claims against the Physician Defendants
under section 101.106(e). I disagree with the decision of the majority to decide this
case on an evidentiary issue not raised in the trial court—and refuted by the
jurisdictional pleadings and evidence—and to ignore the critical central issue in the
case.
2
In his Original Petition, Rios sued UTHSC and the Physician Defendants for
torts he alleged UTHSC committed through the Physician Defendants. He also
asserted a contract claim against UTHSC. While UTHSC’s motion to dismiss the
Physician Defendants under the election of remedies provisions in section 101.106
was pending, Rios amended his pleadings. He retained his contract claim against
UTHSC in his Amended Petition, but he dropped his tort claims against UTHSC
while retaining the same tort claims he had alleged against the Physician Defendants
in his Original Petition. He also added a claim under Title 42, section 1983 of the
United States Code against the Physician Defendants based on the exact same
allegedly tortious acts of those defendants.
In my view, the majority improperly diverts this case away from the critical
legal issue pled by UTHSC on appeal and follows a red herring by holding that
UTHSC had the burden of proving that the Physician Defendants were its employees
and affirming the case on this ground. It thus ignores the central issue in this case—
whether Rios had the right to amend his pleadings as he did and thereby to avoid
dismissal of his suit against the Physician Defendants. I would first respond to the
majority’s holdings on its merits. I would hold that the majority’s conclusion that
UTHSC had the burden of proving that the Physician Defendants were its employees
in order to obtain dismissal of the Physician Defendants under section 101.106(e) of
the Tort Claims Act is incorrect under the facts of this case, where the pleadings of
3
both parties characterized the Physician Defendants as employees of UTHSC, the
status of these defendants as employees of UTHSC was uncontested by either party
in the trial court, and UTHSC nevertheless produced evidence showing that the
Physician Defendants were its faculty members in the same Program that employed
Rios.
I would then address UTHSC’s central issue on appeal, and I would hold that
the trial court erred by allowing Rios to maintain his claims against the Physician
Defendants in his Amended Petition. I would hold that Rios was barred by the plain
language of section 101.106(a) from amending his pleadings as he did and that his
suit against the Physician Defendants must be dismissed under the election of
remedies provision in section 101.106(e). I would, therefore, reverse the judgment
of the trial court denying UTHSC’s motion to dismiss Rios’s suit against the
Physician Defendants under section 101.106(e) for lack of subject-matter
jurisdiction. And I would dismiss Rios’s suit against the Physician Defendants with
prejudice.
Texas Tort Claims Act
In their sole issue, UTHSC and the Physician Defendants argue that the trial
court was compelled to dismiss the Physician Defendants from the suit under section
101.106(e) of the Tort Claims Act.
4
A. Dismissal for Lack of Subject Matter Jurisdiction Under Section
101.106(e)
Section 101.106 provides, in relevant part,
(a) The filing of a suit under this chapter against a governmental
unit constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff
against any individual employee of the governmental unit
regarding the same subject matter.
....
(e) If a suit is filed under this chapter against both a governmental
unit and any of its employees, the employees shall immediately
be dismissed on the filing of a motion by the governmental unit.
(f) 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 this chapter
against the governmental unit, the suit is considered to be against
the employee in the employee’s official capacity only . . . .
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (e), (f) (emphasis added).
A motion to dismiss under section 101.106 raises the issue of sovereign
immunity. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating
that Section 101.106 confers immunity in some instances on employees of
governmental units); Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.—Houston
[1st Dist.] 2015, no pet.) (same). “Sovereign immunity from suit defeats a trial
court’s subject-matter jurisdiction and thus is properly asserted in a plea to the
jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26
(Tex. 2004); Fink, 477 S.W.3d at 465 (noting that although we generally review
5
order on motion to dismiss for abuse of discretion, proper standard of review is
determined by substance of issue to be reviewed, not caption of motion). Whether
the court has subject-matter jurisdiction is a question of law that we review de novo.
Miranda, 133 S.W.3d at 226; Fink, 477 S.W.3d at 465.
We may not presume subject-matter jurisdiction; rather, “the burden is on the
plaintiff[] to allege facts affirmatively demonstrating the trial court’s subject-matter
jurisdiction over the case.” Fink, 477 S.W.3d at 465 (emphasis added). “When a
plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the
cause. . . . If the pleadings affirmatively negate the existence of jurisdiction, then a
plea to the jurisdiction may be granted without allowing the plaintiff[] an opportunity
to amend.” Miranda, 133 S.W.3d at 226–27; Tex. Ass’n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 446 (Tex. 1993). “However, if a plea to the jurisdiction
challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised.”
Miranda, 133 S.W.3d at 227.
1. Rios’s Claim that UTHSC Had the Burden to Prove the Physician
Defendants Were Its Employees to Obtain Their Dismissal Under
Section 101.106(e) of the Tort Claims Act
UTHSC and the Physician Defendants argue that the trial court erred in
refusing to grant UTHSC’s motion seeking dismissal of its employees, the Physician
6
Defendants, under section 101.106 of the Tort Claims Act. In response, Rios claims
that there are “genuine issues of material fact concerning whether the Doctor
Defendants are ‘employees’ under section 101.001(5) and covered under section
101.106(e),” and therefore there is a genuine fact issue as to whether the Tort Claims
Act applies to his claims against them. If the Act applies, Rios asks whether the trial
court properly denied UTHSC’s Amended Plea to the Jurisdiction. He states,
“Appellants have proffered no evidence to both the appellate and trial court to prove
that the Doctor Defendants were actually employed by UT Health at the time that
Appellee’s claims arose, and not independent contractors.” He contends, “If the
Doctor Defendants were not employees of a government unit, Texas Civil Practice
and Remedies Code § 101.106 is not applicable.” This entire argument is a red
herring.
At no point in the trial court did Rios allege in his pleadings that the Physician
Defendants were not employees of UTHSC or plead that they were independent
contractors. In his Original Petition, Rios alleged that UTHSC breached its
employment contract with him. He further pled that UTHSC “separately, and
through Dr. Smalling, Dr. Majid, and Dr. Patel willfully and intentionally interfered
with [his] contract by making false statements about Dr. Rios”; that UTHSC
“separately, and through Dr. Smalling, Dr. Majid, Dr. Patel, and Dr. Fuentes
individually, intentionally interfered with [his] relationship by submitting false
7
information to the Texas Medical Board”; and “Defendants published a statement of
fact to the Texas Medical Board on or about June 23, 2014.” (Emphasis added.)
UTHSC immediately filed a Plea to the Jurisdiction and Motion to Dismiss
the Physician Defendants under section 101.106(e). But, before the trial court ruled
on UTHSC’s motion, Rios filed a First Amended Petition. In that Amended Petition,
Rios dropped his claim that UTHSC had committed torts against him through the
Physician Defendants. Instead, he pled that “UT Health Science Center is a local
government entity under section 276.112 of the Texas Local Government Code,”
and he reasserted his contract claim against UTHSC. He made the exact same
factual allegations supporting the exact same tort claims against the Physician
Defendants that he had alleged in his Original Petition, claiming that the Physician
Defendants had committed torts against him by publishing a defamatory statement
of fact about him to the Texas Medical Board and by making false statements that
led to his employment contract’s termination. And he added federal section 1983
claims against the Physician Defendants on the exact same basis.
UTHSC responded to Rios’s Original Petition with an Amended Plea to the
Jurisdiction and Motion to Dismiss filed on behalf of itself and the Physician
Defendants. In it, UTHSC identified the Physician Defendants as members of its
faculty and its Program Director for the Cardiovascular Disease Training program
to which Rios had been appointed for a one-year term that was not renewed,
8
prompting his suit against his employer—UTHSC. UTHSC identified the
University of Texas System Medical Foundation, the administrator of the UTHealth
Training Programs for all University of Texas health systems, as both Rios’s and the
Physician Defendants’ direct employer. In addition, it produced as an exhibit Rios’s
employment termination notice from UTHSC dated April 29, 2014. This exhibit is
a letter on UTHSC Medical School Department of Internal Medicine Division of
Cardiology and Hyperbaric Medicine letterhead addressed to Rios signed by
Physician Defendant Francisco Fuentes, M.D., Program Director; and it expressly
refers to Rios’s deficiencies in participating in the Cardiovascular Diseases
Fellowship Training Program. These statements included expressions of concern
regarding Rios’s progress in the program received from Physician Defendants Drs.
Smalling and Patel.
Rios did not challenge in the trial court any of the jurisdictional allegations
and exhibits showing that the Physician Defendants were all members of the UTHSC
faculty and that they all made the representations evaluating Rios’s performance
about which he complains in their capacity as faculty members and as Director of
the Program that employed him and failed to renew his contract at UTHSC. Only in
his response to UTHSC’s Amended Motion to Dismiss, filed in response to Rios’s
Amended Petition, did Rios raise the question of whether the Physician Defendants
were really UTHSC employees, without challenging either UTHSC’s pleadings or
9
its evidence. He merely stated, “Assuming arguendo that the Doctor Defendants are
employees of UT Health (since discovery may reveal a contractor status), the inquiry
then moves toward whether the Doctor Defendants were acting within the scope of
their employment.” At no point did Rios allege as a jurisdictional fact that the
Physician Defendants were not employees of UTHSC. And, indeed, not only would
any such allegation contradict the legal basis of his own pleadings, it would also
contradict UTHSC’s allegations (and evidence) that UTHSC is a governmental
entity and that the torts of which Rios complains were alleged torts of the Physician
Defendants acting as Program Director and faculty members of the UTHSC program
by which he too was employed.
Only in his appellate brief did Rios specifically assert that UTHSC had the
burden of proving in the trial court that the Physician Defendants were its
employees. He ignored the fact that the plaintiff—not the defendant—has the burden
of alleging facts in the trial court sufficient to procure jurisdiction and that the only
facts either he or UTHSC alleged in the trial court asserted jurisdiction over the
Physician Defendants under the Tort Claims Act, which applies only to
governmental entities and their employees. See Miranda, 133 S.W.3d at 224; Fink,
477 S.W.3d at 465 (burden is on plaintiff to allege facts affirmatively demonstrating
trial court’s subject-matter jurisdiction over case). In his Amended Petition, Rios
did add a claim against the Physician Defendants under 42 U.S.C. section 1983.
10
However, section 1983 applies only to governmental actors acting under color of
state law. See 42 U.S.C.A. § 1983; Lugar v. Edmondson Oil Co., 457 U.S. 922, 929,
102 S. Ct. 2744, 2749 (1982) (“[I]n a § 1983 action brought against a state official,
the statutory requirement of action ‘under color of state law’ and the ‘state action’
requirement of the Fourteenth Amendment are identical.”). And Rios himself had
pled that UTHSC was a governmental entity. Rios could not both bring his section
1983 claims against the Physician Defendants as state actors and simultaneously
allege that they were not employees of the governmental entity he had sued.
Moreover, Rios made no factual allegation until his appellate brief that the
Physician Defendants were independent contractors and that UTHSC was required
to produce evidence in the trial court to show that they were its employees. Nor, of
course, did he provide any evidentiary support for his claim—which contradicted
UTHSC’s evidence in the trial court as well as both parties’ pleadings in that court.
Rios’s factually incorrect claim that UTHSC failed to produce evidence that the
Physician Defendants were its employees could not properly be alleged for the first
time at the appellate level, as it would require UTHSC to have produced evidence
on a non-issue in the trial court—whether the Physician Defendants were or were
not employees of a governmental entity, UTHSC. See Miranda, 133 S.W.3d at 227
(“[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we
11
consider relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised . . . .”) (emphasis added).
The majority, however, disregards both the pleadings and the evidence that
the Physician Defendants were employees of UTHSC, as Rios himself was. It holds,
nevertheless, that a section 101.106(e) defendant must produce evidentiary proof of
the unchallenged jurisdictional facts alleged by both sides in the trial court
demonstrating that the Physician Defendants were employees of UTHSC to be
entitled to dismissal of those employees from Rios’s suit under section 101.106(e).
It observes that “[t]he Texas Supreme Court has held that, in a plea to the jurisdiction
for a party claiming governmental immunity, the party filing the plea bears the initial
burden of establishing that it is a governmental entity.” Slip Op. at 6 (citing Lubbock
Cty. Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297,
305 (Tex. 2014), and Fink, 447 S.W.3d at 465–66 (applying subsection 101.106(f)).
That is true, but irrelevant, as it is undisputed that UTHSC is a governmental entity,
and Rios expressly pled that it was.
What Miranda actually says is that “[w]hen a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133
S.W.3d at 226. “However, if a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties when
12
necessary to resolve the jurisdictional issues raised.” Id. at 227 (emphasis added).
Here, UTHSC did not have to challenge the jurisdictional facts set out by Rios, as
Rios plainly filed his tort suit against a governmental unit and its employees—the
jurisdictional facts necessary to bring the case within the subject-matter jurisdiction
of the district court under the Tort Claims Act.
The cases cited by the majority do not hold to the contrary. Lubbock County
Water Control, relied upon by the majority, deals with an entirely different set of
circumstances, namely those in which a plaintiff sues a governmental entity in
contract and seeks waiver of immunity for a suit in contract. This issue is irrelevant
to whether the Tort Claims Act waived immunity to Rios’s tort claims alleged
against the Physician Defendants. Lubbock County Water Control was not a tort
case, like the instant case, for which waiver of governmental immunity must be
found in the Tort Claims Act. It was a suit brought against the Lubbock County
Water Control and Improvement District, an undisputed governmental entity, under
Local Government Code section 271.151, which provides a limited waiver of
immunity of its own for local governmental entities that enter into certain contracts.
Lubbock Cty. Water Control, 442 S.W.3d at 300, 305. And, in Lubbock County
Water Control the jurisdictional facts necessary to provide waiver of immunity,
hence to bring the suit within the jurisdiction of the district court, were in dispute.
13
As the Texas Supreme Court stated in Lubbock County Water Control, the
principal issue on appeal was “whether the parties’ contract includes an ‘agreement
for providing goods or services to the [Water District].’” Id. at 301. The
determination whether the contract was of a type that would entitle the Water District
to governmental immunity under Local Government Code section 271.151(2)(A),
and thus make it immune from suit, required evidence; whether the Water District
was a governmental entity, being an undisputed jurisdictional fact, did not. See id.
at 301–02. There is no relationship between the facts and law in Lubbock County
Water Control and the facts and law involved in this case.
The majority also cites Fink, a case from this Court, as support for its claim
that an individual who seeks dismissal on sovereign immunity grounds from a suit
filed against a governmental entity as well as himself is required to produce
evidentiary proof that he is an employee of that governmental entity. Fink, in fact,
supports exactly the opposite conclusion. In Fink, unlike this case, suit was not
brought against Fink’s undisputed governmental employer, the University of Texas,
but against Fink alone, a situation covered by section 101.106(f) of the TTCA, which
is not at issue in this case. See Fink, 447 S.W.3d at 462. The issue on appeal from
denial of dismissal under section 101.106(f) was whether representations made by
Professor Manfred Fink, an undisputed employee of the University of Texas,
regarding a technology he had developed whose patent was held by the university,
14
were within the course and scope of Fink’s employment and thus should have been
brought under the Tort Claims Act against the university and not against Fink
personally. See id. at 462–63. As it was “undisputed that the University of Texas is
a governmental unit and that it was [the defendant] Fink’s employer at the relevant
time,” this Court took those undisputed facts to be established as a matter of law and
“turn[ed] to whether Fink ha[d] established the two remaining statutory requirements
for dismissal under Section 101.106(f),” namely, whether his remarks were within
the scope of his employment and whether suit could have brought against the
university under the Tort Claims Act. Id. at 466 (emphasis added). Those
requirements are inapplicable to suits for dismissal under section 101.106(e).
It is simply error for the majority to cite either Lubbock County Water Control
or Fink as authority for the proposition that, to obtain dismissal under section
101.106(e), a governmental entity seeking dismissal of its employees has the
evidentiary burden of proving the unchallenged jurisdictional fact that they are
indeed its employees. I would hold, contrary to the majority, that the trial court
plainly erred to the extent that it requires UTHSC to provide evidentiary proof that
the Physician Defendants were its employees to be entitled to dismissal under section
101.106(e). Thus, the majority errs by entertaining Rios’s argument and affirming
the case.
15
2. Rios’s Right to Replead His Claims in an Amended Petition After
UTHSC’s Filing of a Section 101.106 Motion to Dismiss
Because it holds that UTHSC and the Physician Defendants did not meet their
evidentiary burden to prove the employee status of the Physician Defendants, the
majority does not address the critical issue raised by UTHSC’s appeal, which is
whether Rios could properly amend his petition to replead his claims after UTHSC
filed a motion to dismiss under section 101.106(e). I would address this issue, and
I would decide it adversely to Rios.
Immediately after Rios filed his Original Petition alleging breach of contract
against UTHSC and tort claims against UTHSC “separately and through” the
Physician Defendants, UTHSC filed its motion to dismiss the Physician Defendants
under section 101.106(e). But before the trial court ruled on UTHSC’s section
101.106(e) motion to dismiss, Rios filed his First Amended Petition. In his
Amended Petition, Rios maintained his contract claim but dropped his tort claims
against UTHSC. He reasserted his common-law tort claims solely against the
Physician Defendants in the exact same language he had used in his Original
Petition, and he added a federal section 1983 claim against the Physician Defendants
based on the exact same conduct. In response, UTHSC filed its Amended Motion
to Dismiss under section 101.106(e).
Under section 101.106(a) of the Tort Claims Act, “[t]he filing of a suit under
this chapter against a governmental unit constitutes an irrevocable election by the
16
plaintiff and immediately and forever bars any suit or recovery by the plaintiff
against any individual employee of the governmental unit regarding the same subject
matter.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a) (emphasis added). The
suit filed by Rios was unambiguously a suit against a governmental unit that barred
any recovery against any of its employees. Once that suit was filed, naming both
UTHSC and its employees, the Physician Defendants, UTHSC was entitled to
immediate dismissal of its employees under the plain language of section
101.106(e). Id. § 101.106(e) (“If a suit is filed under this chapter against both a
governmental unit and any of its employees, the employees shall immediately be
dismissed on the filing of a motion by the governmental unit.”).
The purpose of section 101.106(e) is clear. The TTCA “provides a limited
waiver of immunity for certain suits against governmental entities and caps
recoverable damages,” and the Act includes an election of remedies provision—
section 101.106—to prevent plaintiffs’ attempts “to avoid the Act’s damages cap or
other strictures by suing governmental employees.” Mission Consol. Indep. Sch.
Dist. v. Garcia, 253 S.W.3d 653, 655–56 (Tex. 2008). Section 101.106’s purpose is
thus “to force a plaintiff 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 . . . .” Id. at
657. This provision therefore “favors the expedient dismissal of governmental
17
employees when suit should have been brought against the government.” Tex.
Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013); Garcia,
253 S.W.3d at 657 (“[The TTCA’s] election scheme is intended to protect
governmental employees by favoring their early dismissal when a claim regarding
the same subject matter is also made against the governmental employer.”).
Because the TTCA “is the only, albeit limited, avenue for common-law
recovery against the government, all tort theories alleged against a governmental
unit, whether it is sued alone or together with its employees, are assumed to be
‘under [the Tort Claims Act]’ for purposes of section 101.106.” Garcia, 253 S.W.3d
at 659 (quoting Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997))
(emphasis added). That is the case here. By contrast, claims against the government
that are brought pursuant to waivers of sovereign immunity existing apart from the
TTCA, are not brought “under [the Tort Claims Act],” and thus the election of
remedies provision does not apply. Id. That was the case, for example, in Lubbock
County Water Control. But it is not the case here.
As the Texas Supreme Court has stated, section 101.106 of the Tort Claims
Act expressly provides for the dismissal of the employees of a governmental unit on
proper motion so that “the suit must proceed against the government or not at all.”
Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 412 (Tex.
2015); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (e). It thus provides
18
certain defendants—“government employees who are sued in tort for conduct within
the scope of their employment”—protection against the limited waiver of
governmental immunity by the TTCA. Cannon, 468 S.W.3d at 412. Under section
101.106, “by asserting common-law tort claims against both the [government] and
the [e]mployees, [the plaintiff] ma[kes] an irrevocable election under subsection (e)
to pursue those claims against the government only.” Id. at 417; see TEX. CIV. PRAC.
& REM. CODE ANN. § 101.106(a), (e).
I would hold that, under the plain language of section 101.106 and under
Cannon, Rios was barred by the exclusive election provision in section 101.106(e)
from amending his petition to drop his tort claims against UTHSC while reasserting
his contract action against it. And he was barred from reasserting his claims against
the Physician Defendants as both common-law tort claims and a section 1983 claim
based on the exact same acts and seeking the exact same damages he had sought in
his tort claims in his Original Petition. To allow such pleading is to contravene the
express purpose of section 101.106 and is therefore improper. See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.106(a), (e); TEX. GOV’T CODE ANN. § 311.021 (2)–(3)
(Vernon 2013) (providing that, in enacting statute, it is presumed that entire statute
is intended to be effective and that “a just and reasonable result is intended”); In re
M.N., 262 S.W.3d 799, 802 (Tex. 2008) (holding same).
19
Rios, however, relies upon Cannon as authority for filing his Amended
Petition and treating his Original Petition as a nullity. Therefore, it is necessary to
examine that case in some detail. In Cannon, the Texas Supreme Court considered
the issue presented by this case: whether a trial court could accept an amended
petition filed by a plaintiff who had initially asserted only tort claims subject to the
TTCA against both a governmental employer and its employees after the defendant
governmental entity and its employees had filed a motion to dismiss under section
101.106(e) and before the trial court ruled on the motion to dismiss. In Cannon, the
plaintiff sued both the Texas Department of Aging and Disability Services (“the
Department”) and three of its employees, raising claims of negligent hiring, training,
and supervision against the Department and negligent use of excessive force against
the individual employees, all torts. Cannon, 468 S.W.3d at 413. The Department
and the employees filed both a plea to the jurisdiction and a motion to dismiss under
section 101.106(a) and (e). Id. As here, before the trial court ruled on the motion to
dismiss, Cannon amended her petition to add federal claims under section 1983 of
the United States Code against both the Department and the employees. She then
agreed to dismiss all of her common-law tort claims, leaving only her federal section
1983 claims remaining. Id. The trial court denied the Department’s plea to the
jurisdiction and denied its motion to dismiss the employees. Id.
20
Relying on the language in subsection 101.106(e) requiring “immediate”
dismissal of the employees upon the filing of a motion by the governmental entity,
the Department argued on appeal that the trial court should not have considered
Cannon’s amended petition, which was filed while its section 101.106(e) motion to
dismiss was pending. Id. at 416. Cannon, on the other hand, argued that “because
court action is required to effectuate dismissal of government employees, nothing in
subsection (e) precludes a plaintiff from amending her petition before that dismissal
in accordance with applicable procedural rules.” Id.
The Texas Supreme Court agreed with Cannon’s interpretation of section
101.106(e) under the circumstances of that case. Id. The supreme court first noted
that section 1983 “provides a statutory remedy to individuals whose constitutional
rights are violated by state officials,” and, as such, Cannon’s section 1983 claims in
her amended petition were federal statutory and constitutional claims not “brought
under the Tort Claims Act.” Id. (emphasis added). The court also held that, despite
the language of section 101.106(e) stating that “the employees shall immediately be
dismissed on the filing of a motion by the governmental unit,” that language “does
not translate to an absolute right to dismissal upon the motion’s filing” because “a
court order, along with certain findings, is required to effectuate dismissal.” Id. at
418. The court thus concluded that section 101.106(e) does not “conflict with our
liberal procedural rules governing pleading amendments,” and it held that “when a
21
governmental unit files a motion to dismiss under subsection 101.106(e), the
plaintiff is not foreclosed from amending her petition in accordance with applicable
procedural rules to assert claims that are not brought under the Tort Claims Act.”
Id. at 418, 419.
In reaching this holding, however, the Texas Supreme Court specifically
noted that Cannon’s amended petition “did not omit claims against the government
in an attempt to preserve tort claims against employees that would otherwise be
subject to dismissal.” Id. at 417. Indeed, Cannon did “not dispute that, by asserting
common-law tort claims against both the Department and the Employees, she made
an irrevocable election under subsection (e) to pursue those claims against the
government only, even though the court of appeals ultimately determined that the
government was immune from suit.” Id. The court concluded, however, that
Cannon’s irrevocable election did not extend to her section 1983 claims against the
employees, as those claims “were not brought under the Tort Claims Act and thus
were not otherwise subject to dismissal.” Id. (emphasis in original).
The posture of the pleadings in Cannon is exactly the opposite of this case. In
amending his petition before the trial court could dismiss his claim pursuant to
section 101.106(e), Rios did not elect to continue to pursue his tort claim solely
against the governmental entity, UTHSC. He did the opposite. He elected to drop
his tort claim against UTHSC and to continue to pursue it solely against UTHSC’s
22
employees—in direct violation of the plain language and intent of section
101.106(e). See Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013) (stating that section
101.106 “favors the expedient dismissal of governmental employees when suit
should have been brought against the government”); Garcia, 253 S.W.3d at 657
(“[The TTCA’s] election scheme is intended to protect governmental employees by
favoring their early dismissal when a claim regarding the same subject matter is also
made against the governmental employer.”). And Rios did “omit claims against the
government in an attempt to preserve tort claims against employees that would
otherwise be subject to dismissal,” again putting himself exactly at odds with
Cannon. See 453 S.W.3d at 417.
Disregarding Cannon’s warnings, Rios points out that the Texas Rules of
Civil Procedure permit amendments of pleadings that do not “operate as a surprise
to the opposite party” until seven days before trial without court permission, and
they provide that amended pleadings substitute for the original pleadings. See TEX.
R. CIV. P. 63, 65. He then specifically relies upon Cannon’s statement that the
plaintiff’s section 1983 claims in Cannon, filed in an amended petition after the
defendants had moved to dismiss pursuant to section 101.106(e), were not brought
under the TTCA and “[s]ubsection 101.106(e) of the Tort Claims Act does not
contemplate dismissal of claims asserted independently of that Act.” 453 S.W.3d at
412, 416.
23
Rios, however, overlooks the statement in Cannon pointing out that the
amended petition in that case did not “omit claims against the government in an
attempt to preserve tort claims against employees that would otherwise be subject to
dismissal.” Id. at 417. And indeed, Rios did exactly the opposite from Cannon.
After UTHSC and the Physician Defendants moved to dismiss under section
101.106, Rios amended his petition to drop his common-law tort claims against
UTHSC and to assert these claims solely against the Physician Defendants, and he
added a section 1983 claim against the Physician Defendants based on the exact
same alleged conduct and ultimate issues of fact that had formed the basis for his
tort claims in his Original Petition.
Rios’s tort claims in his Amended Petition, as well as his federal section 1983
claims, are indistinguishable in subject matter from the common-law tort claims
asserted against the Physician Defendants as employees of UTHSC in his Original
Petition. Even the language of the Amended Petition is identical to that of the
Original Petition except for the addition of language recasting as violations of
section 1983 the exact same acts Rios pled in both petitions against the Physician
Defendants as the common-law torts of tortious interference with his employment
contract, tortious interference with future relations, and defamation—namely
“making false statements that eventually led to his contract being terminated.” This
case is, thus, the exact contrary of Cannon, in which the plaintiff expressly dismissed
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all of her common-law tort claims and disclaimed reasserting her tort claims as her
section 1983 claims. See Cannon, 453 S.W.3d at 413 (noting that after Cannon filed
her amended petition asserting 1983 claims, she dismissed all of her common-law
tort claims).
I would conclude that Rios amended his petition for the precise purpose of
“omit[ting] claims against the government in an attempt to preserve tort claims
against employees that would otherwise be subject to dismissal.” Id. at 417. I would
hold, therefore, that Rios’s amendment of his pleadings was impermissible and
improper under Cannon. I would also hold that Rios could not recast his common-
law tort claims as section 1983 claims against the Physician Defendants in his
Amended Petition while still pleading his common-law tort claims based on the
exact same facts regarding the exact same subject matter as in his Original Petition,
as that action was plainly designed to circumvent the election of remedies provision
in section 101.106(a). Nor could he cast his section 1983 claims as claims against
state actors—the only persons to whom such claims apply—while contradictorily
maintaining that the Physician Defendants were not state actors because they had
not been shown to be state employees.
I conclude that Rios’s filing of his Original Petition in tort against UTHSC
and its employees constituted an irrevocable election to bring his claims against
UTHSC only. Therefore, the filing of his Amended Petition, which dropped his tort
25
claims against UTHSC and reasserted the exact same claims against UTHSC’s
employees only, constituted a direct violation of the plain language of section
101.106, and that cause of action was barred by the statute. See TEX. CIV. PRAC. &
REM. CODE ANN. § 101.106(a) (“The filing of a suit under this chapter against a
governmental unit constitutes an irrevocable election by the plaintiff and
immediately and forever bars any suit or recovery by the plaintiff against any
individual employee of the governmental unit regarding the same subject matter”)
(emphasis added).
I would hold, therefore, that, under the circumstances of this case, UTHSC
was entitled to immediate dismissal of Rios’s claims against the Physician
Defendants upon the filing of his Original Petition. See id. § 101.106(e) (“If a suit
is filed under [the Tort Claims Act] against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a motion
by the governmental unit.”); see also Cannon, 453 S.W.3d at 417 (“Cannon does not
dispute that, by asserting common-law tort claims against both the Department and
the Employees, she made an irrevocable election under subsection (e) to pursue
those claims against the government only, even though the court of appeals
ultimately determined that the government was immune from suit.”).
As the pleadings in Rios’s Original Petition affirmatively negated the
existence of jurisdiction over the Physician Defendants, UTHSC’s plea to the
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jurisdiction should be granted, and Rios should not be allowed to replead. See
Miranda, 133 S.W.3d at 226–27.
3. The Concurrence
My opinion is not changed by the concurrence. The concurring opinion takes
the position that Rios timely amended and replaced his Original Petition and that
UTHSC’s Amended Motion to Dismiss, filed in response to Rios’s Amended
Petition, “canceled and replaced [its] first Motion to Dismiss.” See Slip Op. at 6.
Thus, only the Amended Petition and the Amended Motion to Dismiss remained to
be adjudicated. See id. at 8. I cannot agree with the concurrence that a plaintiff in a
suit subject to the Tort Claims Act has an automatic right to amend his original
petition after a motion to dismiss the original suit under section 101.106 has been
filed and thereby to initiate a new suit that voids the original.
Section 101.106(a) expressly states that “[t]he filing of a suit under [the Tort
Claims Act] against a governmental unit constitutes an irrevocable election by the
plaintiff and immediately and forever bars any suit or recovery by the plaintiff
against any individual employee of the governmental unit regarding the same subject
matter.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a) (emphasis added). By
allowing the plaintiff to amend and automatically nullify the original petition while
a motion to dismiss under section 101.106 is pending before the trial court can rule
on the pending motion to dismiss, a court necessarily declares that the original
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election was not irrevocable and that no determination is needed as to whether the
second suit was barred; it automatically is not barred. This judicial action contradicts
the express language of section 101.106(a). And it also nullifies the intent of section
101.106(e), which provides that “[i]f a suit is filed under [the Tort Claims Act]
against both a governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the governmental unit.” Id.
§ 101.106(e).
It cannot have been the intent of the Legislature to enact a null statute. See
TEX. GOV’T CODE ANN. § 311.021 (“In enacting a statute, it is presumed
that . . . (2) the entire statute is intended to be effective; [and] (3) a just and
reasonable result is intended . . . .”); see also In re M.N., 262 S.W.3d at 802 (in
construing statute, “our objective is to determine and give effect to the Legislature’s
intent”; court presumes that “the Legislature intended a fair and reasonable result”
and that “the Legislature included each word in the statute for a purpose”).
Therefore, I cannot agree with the position taken by the concurrence that Rios’s
filing of an amended petition during the pendency of a section 101.106 motion to
dismiss automatically nullified Rios’s original petition. Nor can I agree that
UTHSC’s filing of an amended motion to dismiss responding to the pleading in the
amended petition nullified the motion to dismiss pending with respect to the original
petition.
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The trial court should have considered the allegations in both Rios’s Original
Petition and his Amended Petition in order to determine whether he amended his
petition solely in an effort to avoid the requirements of section 101.106 and to nullify
the intended effect of the statute. Otherwise, every plaintiff with a claim potentially
subject to dismissal under section 101.106 can negate his original pleading—and
negate the purpose of section 101.106—simply by filing an amended petition on the
exact same grounds against the exact same governmental entity and governmental
employees with the exact same ultimate issues of fact, but under a different name
for the claims, as soon as the defendant files a motion to dismiss under section
101.106 and before the trial court has the opportunity to rule on the pending motion
to dismiss the original petition. He can then claim that the amended petition
constitutes the filing of a new suit that nullifies the original petition and any pending
motion to dismiss and that any amended motion to dismiss filed in response to the
amended petition is not meritorious under section 101.106 because the original suit
disappeared. That is exactly what Rios did here. And it is exactly what the
concurrence would permit him to do, without providing any means for determining
whether the second suit was barred because it merely restated the first suit with
respect to the same parties and the same subject matter under an additional theory
that merely redesigned his tort claims as federal section 1983 claims based on the
same ultimate issues of fact.
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I would review Rios’s Amended Petition and his Original Petition in light of
section 101.106 to determine whether Rios’s “filing of [his original] suit” under the
Tort Claims Act constituted an “irrevocable election” that “bar[red] any suit”—
namely the suit brought by Rios’s substituted amended petition—regarding the same
subject matter and therefore whether the second suit was barred. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.106(a). Under the circumstances of this suit, I
would hold that the suit pled in Rios’s Amended Petition was barred by section
101.106.
Conclusion
I would reverse the judgment of the trial court denying UTHSC’s motion to
dismiss the Physician Defendants. I would grant the motion and dismiss with
prejudice Rios’s suit against the Physician Defendants.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Chief Justice Radack, concurring.
Justice Keyes, dissenting.
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