                                   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. PHD, 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


                        CONCURRING OPINION

     Because Rios properly and timely amended his petition to nonsuit his tort

claims against the University of Texas Health Science Center at Houston [“UT
Health”], I believe that the trial court properly denied the Defendants’ Amended

Motion to Dismiss. Accordingly, I concur in the judgment.

      On April 24, 2015, Rios sued UTHealth and four doctors [“the Physician

Defendants”] in connection with the non-renewal of his fellowship appointment,

alleging both breach of contract and tort claims. On July 15, 2015, UTHealth filed

a Plea to the Jurisdiction and a Motion to Dismiss the Physician Defendants,

asserting that, under TEX. CIV. PRAC. & REM. CODE § 101.106(e) (West 2011),

when a plaintiff sues both a governmental unit and any of its employees under the

Texas Tort Claims Act, the employees “shall immediately be dismissed on the

filing of a motion by the governmental unit.”

      On July 24, 2015, before the trial court had ruled on UTHealth’s Motion to

Dismiss, Rios amended his petition.            In his First Amended Petition, Rios

nonsuited1 his tort claims against UTHealth, proceeding against the governmental

entity based only on a breach of contract claim. Rios asserted his tort claims

against the Physician Defendants only, and included for the first time claims for

violations of 42 U.S.C. § 1983.




1
      See FKM P’Ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619
      632—33 (Tex. 2008) (holding that filing an amended petition that omits a
      previously asserted cause of action “effectively nonsuits or voluntarily dismisses
      the omitted claims,” which “are effectively dismissed at the time the amended
      pleading is filed.”).

                                           2
      UTHealth did not stand on and obtain a ruling on its previously filed Motion

to Dismiss. Instead, it canceled the July 27, 2015 submission date, and, on August

11, 2015, filed Defendants’ Amended Plea to the Jurisdiction and Motion to

Dismiss, which addressed the allegations in Rios’s First Amended Petition,

specifically “breach of contract against UTHealth, and tortious interference with an

existing contract, tortious interference with future relationships, defamation and

violation of his first amendment rights pursuant to 42 U.S.C. 1983 against the

[Physician] Defendants.” Again, UT Health and the Physician Defendants sought

dismissal of the tort claims against the Physician Doctors pursuant to § 101.106(e).

      The trial court granted the Defendants’ Amended Plea to the Jurisdiction as

to the breach of contract claim against UTHealth, but denied the Amended Motion

to Dismiss the tort claims and the § 1983 claims against the Physician Defendants.

      On appeal, the UT Health and Physician Defendants contend that the trial

court erred in denying their Amended Motion to Dismiss, arguing that “Section

101.106(e) Prevents a Plaintiff from Amending His Petition to Preclude Dismissal

of Tort Claims against [the Physician Defendants].” Specifically, the Defendants

argue that “the Plain Text of Section 101.106(e) Makes Dismissal of Tort Claims

Mandatory Upon the Filing of the Government’s Motion.”

      The first issue is whether Section 101.106(e) ever permits a plaintiff to

amend his or her petition. Texas Department of Aging and Disability Services v.



                                         3
Cannon, 453 S.W.3d 411, 418 (Tex. 2015) answers this question in the affirmative

and makes clear that the governmental entity’s employees do not have “an absolute

right to dismissal upon the [101.106(e)] motion’s filing.” As the supreme court

notes “a court order, along with certain filings, is required to effectuate dismissal.”

Id. The supreme court agreed that nothing in subsection (e) precludes a plaintiff

from amending her petition before that dismissal in accordance with applicable

procedural rules. Id. at 417. Indeed, the supreme court disavowed several prior

appeals court decisions that had held that amended pleadings filed after the

government’s subsection (e) motion could not moot the right created by the filing

of the motion. Id. at n.12. In so holding, the supreme court stated, “we disapprove

of those decisions to the extent they hold that an amended petition filed while a

subsection (e) motion is pending is never properly considered.” Id.

      The more complicated question is whether the “applicable procedural rules,”

id. at 416, permit Rios’s amendment under the specific facts and circumstances of

this case. More specifically, was Rios’s initial petition against both UTHealth and

the Physician Defendants an “irrevocable election,” id. at 417, to pursue the tort

claims against UTHealth only, even though Rios amended his petition to omit tort

claims against UTHealth before UTHealth filed its Amended Motion to Dismiss? I

believe that Cannon, when considered with Austin State Hosp. v. Graham, 347

S.W.3d 298 (Tex. 2011), compels the conclusion that a plaintiff’s amendment, if



                                          4
filed before the governmental entity files a motion to dismiss its employees, is

timely and not prohibited.

      In Graham, the plaintiff brought tort claims against a state hospital and two

of its employee doctors. Id. at 299. The hospital filed a subsection (e) motion to

dismiss the doctors, but before the trial court signed an order dismissing the

doctors, the plaintiff nonsuited his claims against the hospital. Id. On appeal to

the supreme court, the plaintiff argued that his nonsuit precluded the trial court

from ruling on the Hospital’s motion to dismiss. Id. at 301. Citing Rule 162 of the

Texas Rules of Civil Procedure,2 the supreme court disagreed, holding that the

plaintiff’s nonsuit could not prejudice the Hospital’s right to be heard on its

“pending claim for affirmative relief,” i.e., its motion to dismiss the employee

doctors. Graham, 347 S.W.3d at 301.

      In this case, had UTHealth and the Physician Defendants chosen to stand on

their first Motion to Dismiss, Graham would have controlled and Rios’s Amended

Petition would have been filed too late to prejudice UTHealth’s and the Physician

Doctors’ rights to seek a ruling on their previously filed section 101.106(e) Motion

to Dismiss. That, however, is not what happened.




      Rule 162 provides in part that “[a]ny dismissal pursuant to this rule shall not
      prejudice the right of an adverse party to be heard on a pending claim for
      affirmative relief . . . .” TEX. R. CIV. P. 162 (West 2003).

                                         5
       Instead, after Rios amended his petition to nonsuit all tort claims against

UTHealth, UTHealth and the Physician Defendants did not seek a ruling on their

then-pending Motion to Dismiss. Instead, they filed Defendants’ Amended Motion

to Dismiss. As such, the Defendants’ Amended Motion to Dismiss canceled and

replaced its first Motion to Dismiss. See TEX. R. CIV. P. 65 (stating that “[u]nless

the substituted instrument shall be set aside on exceptions, the instrument for

which it is substituted shall no longer be regarded as a part of the pleading in the

record of the cause . . . .”).

       Because the Defendants’ first Motion to Dismiss ceased to exist once they

amended it, there was no “pending claim for relief” when Rios amended his

petition to nonsuit the tort claims against UTHealth. Thus, under the reasoning of

Graham, Rios’s Amended Petition, which was filed before the Defendants’

Amended Motion to Dismiss—the motion from which this appeal arises—was

timely. To hold otherwise under these facts would cause “subsection (e) to conflict

with our liberal procedural rules governing pleading amendments.” See Cannon,

453 S.W.3d at 418 (holding that absolute right to dismissal upon filing of

101.106(e) motion would conflict with liberal rules governing pleading

amendments).

       And, nothing in the language of subsection (e) compels the conclusion that a

suit against the government and its employees is an “irrevocable election” to sue



                                         6
the government, if and when the plaintiff amends to sue only the employees before

a subsection (e) motion is filed.

      The relevant portions of the statute provide:

   (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.

   (b) The filing of a suit against any employee of a governmental unit
       constitutes an irrevocable election by the plaintiff and immediately
       and forever bars any suit or recovery by the plaintiff against the
       governmental unity regarding the same subject matter unless the
       governmental unit consents.

   ....

    (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.

TEX. CIV. PRAC. & REM. CODE § 101.106(a), (b), (e).

      Subsections (a) and (b) use the language “irrevocable election”; subsection

(e) does not.    Indeed, subsection (e) makes the dismissal of the employees

mandatory upon on the filing of a motion by the governmental unit, not upon the

filing of a suit against a governmental unit and its employees. We construe a

statute’s words according to their plain and common meaning unless they are

statutorily defined otherwise, a different meaning is apparent from the context, or

unless such a construction leads to absurd or nonsensical results. See Tex. Lottery



                                          7
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).

Determining legislative intent requires that we consider the statute as a whole,

reading all its language in context, and not reading individual provisions in

isolation. See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014).

Because the Legislature used the words “irrevocable election” in subsections (a)

and (b), and not subsection (e), and because subsection (e) hinges upon the filing

of a motion by the government to obtain the dismissal of the employee defendants,

I would interpret subsection (e) to allow a plaintiff to amend his petition to nonsuit

claims against the government until the government files a motion to dismiss the

claims against the employees.

      I believe that, by filing an Amended Motion to Dismiss, UTHealth and the

Physician Defendants have waived any right to complain about the trial court’s

refusal to grant their first Motion to Dismiss. And, because their Amended Motion

to Dismiss was filed after Rios amended his petition, there was no “pending claim

for relief” at the time the amended petition was filed. As such, Rios’s amendment

was timely under the reasoning of Graham.




                                          8
      For this reason, I would affirm the trial court’s order denying the Amended

Motion to Dismiss the Defendant Physicians.




                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Keyes.

Radack, C.J., concurring.

Keyes, J., dissenting.




                                        9
