

Opinion issued June 7, 2012.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-05-00553-CV
———————————
Harry Williams, Appellant
V.
William H.
Nealon, M.D. and Eric M. Walser, M.D., Appellee

 

 
On Appeal from the 56th District Court 
Galveston County, Texas

Trial Court Case No. 04CV0694
 

 
OPINION ON REMAND FROM THE TEXAS
SUPREME COURT
In this case on remand from the
Texas Supreme Court, we consider whether Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2011) violates the Open Courts
Provision of the Texas Constitution.[1]  We affirm.
BACKGROUND
Appellant, Harry Williams, sued appellees, Drs. William H.
Nealon and Eric M. Walser, faculty members at the University of Texas Medical
Branch at Galveston, on health care liability claims after his pancreas was
injured during a diagnostic procedure of his bile ducts. Nealon and Walser
moved to dismiss the suit under section 101.106(f) of the Texas Tort Claims
Act,[2]
claiming that the suit was based on conduct within the general scope of their
employment and that the cause of action could have been brought against UTMB.
Williams responded, arguing that the statute violated the Open Courts provision
of the Texas Constitution.  See Tex.
Const. art. I, § 13.  
The trial court dismissed the action and Williams appealed,
arguing that (1)  the statute violated
the Open Courts provision of the Texas Constitution, and (2) the trial court
erred in dismissing his claims because his claim was not brought “under this
chapter,” i.e. under the Texas Tort Claims Act [“the Act”].
This Court reversed the trial court, holding that the trial
court’s dismissal was erroneous because the doctors did not show that
Williams’s claim could have been brought against UTMB under the Act, a
requirement of section 101.106(f). 199 S.W.3d 462, 466 (Tex. App.—Houston [1st
Dist.] 2006).   This Court did not
address Williams’s claim that the statute violated the Open Courts provision.  The doctors then filed a petition for
discretionary review with the Texas Supreme Court.
While the case was pending in the supreme court, that court
decided Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), holding that,
for purposes of section 101.106(f), any tort action is brought “under” the
Texas Tort Claims Act, even if the government has not waived its immunity for
such actions. 332 S.W.3d at 379–80. In light of Franka, the supreme
court granted the doctors’ petition for review, reversed this Court’s judgment,
and remanded the case for further proceedings. Nealon v. Williams, 332 S.W.3d 364, 364 (Tex. 2011). 
OPEN COURTS
          In his brief on remand, Williams claims
that section 101.106(f) violates the Open Courts provision.  Specifically, he argues that the section
requires him to give up an actionable malpractice claim against the doctors
individually “for a potentially dismissable [sic] and non-viable claim under
[the Act].”  Essentially, Williams
contends that the statute abrogates his right to bring a malpractice action
against the doctors by legislatively overruling Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994), in which the
supreme court decided that government-employed personnel do not have official
immunity regarding their alleged negligence in exercising medical discretion in
the treatment of their patients.
          We agree that section 101.106
statutorily extends immunity to acts of government employees acting within
their official capacity.  LTTS Charter Sch., Inc. v. C2 Constr., Inc.,
342 S.W.3d 73, 89–90 (Tex. 2011) (citing
Franka, 332 S.W.3d at 371 n.9).  The
issue we must decide is whether it does so constitutionally.
          The Open Courts provision states that “[a]ll 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.” Tex. Const. art. I, § 13. “This provision, among other things,
prohibits the Legislature from unreasonably restricting common law causes of
action.” Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995) (citing Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993)).
Statutes are presumed to be constitutional.
Tex. Gov’t Code Ann. § 311.021(1)
(Vernon 2011); Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003). When
challenging a statute as unconstitutional on the basis that it restricts a
common law cause of action, the litigant must demonstrate that (1) the statute
restricts a well-recognized common law cause of action; and (2) the restriction
is unreasonable when balanced against the statute’s purpose. Flores v. Law,
8 S.W.3d 785, 787 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (citing Thomas,
895 S.W.2d at 357).
While the Franka court
was not presented with an Open Courts challenge to section 101.106(f), it did
opine on the outcome of such a challenge as follows:
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.”
 
332
S.W.3d at 385 (internal citations omitted). 
Thus, the supreme court has indicated that an open courts challenge to
section 101.106(f) would fail because the restriction is reasonable when
balanced against the statute’s purpose.
          In Hintz
v. Lally, 305 S.W.3d 761, 772–73 (Tex. App.—Houston [14th Dist.] 2009, no
pet.), a pre-Franka case, our sister
court of appeals considered and rejected an Open Courts challenge to
101.106(f).  In so holding, the court
stated, 
The Texas Supreme Court has addressed
an open courts challenge to the pre–2003 version of section 101.106. [See Thomas v. Oldham, 895 S.W.2d
352, 357–58 (Tex. 1995)]. The prior version of section 101.106 stated
that “[a] judgment in an action or a settlement of a claim under this chapter
bars any action involving the same subject matter by the claimant against the
employee of the governmental unit whose act or omission gave rise to the claim.”
See id. at 355. The supreme court concluded that, under this provision,
“a judgment in an action against a governmental unit under the Tort Claims Act
bars the simultaneous rendition of a judgment against the employee whose
actions gave rise to the claim.” Id. at 357.
 
The plaintiff in Thomas
argued that section 101.106’s bar on simultaneous judgments against the
governmental employee and the governmental employer violated the open courts
provision. Id. The supreme court rejected this challenge because “[t]he
Tort Claims Act broadened, rather than restricted, an injured party’s
remedies.” Id. The statute did so by creating a limited waiver as to
governmental units that were immune from liability at common law. Id.
“Although a plaintiff who pursues the statutory remedy against the government
may lose his or her common law remedy against the employee, the plaintiff is
not required to follow this course.” Id. at 357–58. “He or she may still
opt to pursue the full common law remedy against the responsible employee,
foregoing or postponing any attempt to recover from the government.” Id.
at 358 (footnote omitted); see also Flores, 8 S.W.3d at 788 (“Law could
have pursued a common-law remedy against Flores, foregoing or postponing any
attempt to recover from UTHSC. As such, section 101.106 does not restrict a
well-recognized cause of action.”).
 
Thomas’s rationale does not readily translate to the post–2003
version of section 101.106 because newly added subsection (f) “does not give
the plaintiff the option of continuing with a lawsuit against the governmental employee.” Bailey
v. Sanders, 261 S.W.3d 153, 159 (Tex. App.—San Antonio 2008, pet. granted).
However, Thomas’s bottom-line holding rejecting an open courts challenge
nonetheless applies here because section 101.106(f)’s restriction is reasonable
when balanced against the statute’s purpose.
 

          The Hintz court reasoned that section 101.106(f) “served to narrow the
issues, reduce delay, and avoid duplicative litigation spawned by the
simultaneous pursuit of alternative claims against both the governmental
employer and its governmental employee.” Id.
at 773. In so holding, the court noted that “[s]ubsection (f) is one tool to
make litigants decide whether to predicate suit on allegations that ‘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. (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657
(Tex. 2008)).
          The Hintz court went on to state that “the harsh result of which Hintz
complains can be avoided by holding the governmental employee who seeks
dismissal under section 101.106(f) to the burden of demonstrating that suit
‘could have been brought under [the Tort Claims Act] against the governmental
unit.’” Id. (quoting Phillips v. Dafonte, 187 S.W.3d 669,
675–76 (Tex. App.—Houston [14th Dist.] 2006, no pet.)).  We note that this portion of the Hintz court’s reasoning no longer
applies because Franka held that a
defendant seeking dismissal under section 101.106(f) does not bear the burden
of showing that the suit could have been brought under the Tort Claims Act
against the government.  Franka, 332 S.W.3d at 380–81.
          However, we believe that Hintz’s holding—that “section
101.106(f)’s restriction . . . is reasonable when balanced against the
statute’s purpose”—remains sound and in line with the supreme court’s
pronouncement in Franka. Hintz, 305 S.W.3d at 773.  In exchange for the Tort Claims Act’s waiver
of sovereign immunity in certain situations, the statute limits a litigant’s
cause of action against employees of the state acting in the course and scope
of their employment.  The restriction
serves to “narrow the issues, reduce delay, and avoid duplicative litigation.”  Hintz,
305 S.W.3d at 773. Thus, we hold that such a restriction is “a reasonable
exercise of the police power in the interest of the general welfare.”  Franka,
332 S.W.3d at 385 (quoting Tex. Workers’
Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995)); see also Kamel v. Univ. of Tex. Health Sci.
Ctr. at Houston, 333 S.W.3d 676, 688 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (holding current version of section 101.106(f) does not violate
open courts provision).
          We overrule Williams’s sole issue.
 
 
 
CONCLUSION
          We affirm the trial court’s judgment. 
 
 
 
                                                                   Sherry
Radack
                                                                   Chief
Justice 
 
Panel
consists of Chief Justice Radack and Justices Higley and Brown.
 




[1]           See Tex. Const.
art. I, § 13. 




[2]           That section 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 this chapter 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) (Vernon 2011).
 
 


