                         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


                                     ------------

        FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                                    OPINION

                                      ----------

      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

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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.




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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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