Affirmed, in Part, Reversed and Rendered, in Part, and Opinion filed July 19, 2012.




                                        In The

                     Fourteenth Court of Appeals

                                 NO. 14-11-00751-CV


  TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES A/K/A
BRENHAM STATE SCHOOL, ANTHONY V. WATSON, DWANE B. HUBBARD,
              AND ARETHA L. TURNER, Appellants

                                           V.

   MARY CANNON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
       ESTATE OF PATRICK TATE DYESS, DECEASED, Appellee


                       On Appeal from the 21st District Court
                            Washington County, Texas
                           Trial Court Cause No. 34370


                                   OPINION

       In this interlocutory appeal, appellants, Texas Department of Aging and Disability
Services a/k/a Brenham State School (“the Department”) and Anthony V. Watson,
Dwane B. Hubbard, and Aretha L. Turner (collectively “the employees”), appeal the
following orders in the underlying suit filed by appellee, Mary Cannon, Individually and
as Representative of the Estate of Patrick Tate Dyess: (1) an order denying the
Department’s plea to the jurisdiction; (2) an order denying the Department’s motion to
dismiss claims against the employees; and (3) an order denying the employees’ own
motion to dismiss those claims. We reverse the order denying the Department’s plea to
the jurisdiction and render judgment dismissing all claims against the Department. We
affirm both orders denying the motions to dismiss all remaining claims against the
employees.

                                          I. BACKGROUND

        At pertinent times, Cannon’s son, Patrick Tate Dyess, was a resident of Brenham
State School, which is operated by the Department.                    The record indicates that on
September 12, 2003, the employees physically restrained Dyess because of his behavior.
According to Cannon, Dyess was asphyxiated during this incident, resulting in his death.

        In March 2005, Cannon filed a wrongful-death and survival suit, individually and
on behalf of Dyess’s estate, against the Department and the employees. In her original
petition, Cannon advanced only tort claims, alleging the employees, while in the course
and scope of employment, were negligent by using excessive force to discipline Dyess
and the Department was negligent in its hiring, training, and supervision of employees.

        In an amended answer filed in April 2009, the Department first requested
dismissal of the employees pursuant to Texas Civil Practice and Remedies Code section
101.106(e), contained in the Election-of-Remedies provision of the Texas Tort Claims
Act (“TTCA”).1 See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West 2011). In
October 2009, the Department filed a separate motion to dismiss the employees pursuant
to Texas Civil Practice and Remedies Code sections 101.106(a) and (e), and the
employees filed their own motion on the same ground.                       The Department and the
employees eventually set these motions to dismiss for hearing in January 2011.




        1
           The four-year gap between the original petition and the amended answer was apparently due, in
part, to the fact that the defendants were awaiting a ruling on their motion to transfer venue by the trial
court in which the case was originally filed. That court did not grant the motion until July 2009.
Thereafter, all other pleadings relevant to the issues on appeal were filed in the current trial court.

                                                    2
       Meanwhile, in its original answer, amended answer, and first supplemental plea to
the jurisdiction, the Department pleaded sovereign immunity with respect to the claims
against the Department and also set this plea for the same January 2011 hearing.

       On the day of the scheduled hearing, Cannon amended her petition to add an
intentional-tort claim and an action under section 1983 of Title 42 of the United States
Code, contending that, acting under color of state law, all defendants deprived Dyess of
certain rights under the United States Constitution. See 42 U.S.C. § 1983. The record
reflects that no hearing was conducted that day.

       Subsequently, the Department filed second and third supplemental pleas to the
jurisdiction, adding that the section 1983 claim against the Department is also barred by
sovereign immunity. The Department and the employees also filed a first supplemental
motion to dismiss the section 1983 claims against the employees, again citing sections
101.106(a) and (e).

       On June 9, 2011, the trial court heard the Department’s plea to the jurisdiction and
all motions to dismiss. At the hearing, Cannon agreed to dismiss all common law tort
claims but not the section 1983 claims. After hearing arguments, the trial court orally
cited Cannon’s agreement to dismiss all tort claims but granted the plea to the jurisdiction
and the motions to dismiss relative to those claims “if there’s any question on that.” The
trial court announced that it denied the plea to the jurisdiction and the motions to dismiss
relative to the section 1983 claims.

       On July 17, 2011, the trial court signed an order granting Cannon’s motion to
dismiss the tort claims with prejudice. On August 18, 2011, the trial court signed three
additional orders: (1) an order denying the Department’s plea to the jurisdiction; (2) an
order denying the Department’s motion to dismiss the employees; and (3) an order
denying the employees’ motion to dismiss. The Department and the employees filed this
interlocutory appeal challenging these latter three orders.




                                              3
                                       II. ANALYSIS

       Although the trial court did not specify the claims addressed in the orders at issue,
the only remaining causes of action were Cannon’s section 1983 claims, in light of her
previous dismissal of all tort claims. In their joint appellate brief, the Department and the
employees present two issues relative to the section 1983 claims: (1) the trial court erred
by denying the Department’s plea to the jurisdiction; and (2) the trial court erred by
denying the motion to dismiss the claims against the employees.

A.     The Department’s Plea to the Jurisdiction

       We have jurisdiction to address an interlocutory appeal of an order denying a
governmental unit’s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8) (West Supp. 2011). The Department argues that it was entitled to dismissal
of Cannon’s section 1983 claim because (1) a state entity is not a “person” whom may be
sued under section 1983 and (2) the Department enjoys immunity from a section 1983
claim. We need not decide whether the Department’s first contention is a challenge to
the trial court’s jurisdiction which may be raised via interlocutory appeal, rather than a
substantive challenge to the section 1983 claim, because we agree with the Department’s
second contention.

       Governmental immunity from suit deprives a trial court of subject matter
jurisdiction and 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). Whether a trial court has
subject matter jurisdiction is a question of law which we review de novo. Id. at 226, 228.
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. Id.
at 226. We construe the pleadings liberally in favor of the pleader and look to her intent.
Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,
the issue is one of pleading sufficiency and the plaintiffs should be afforded the
opportunity to amend. Id. at 226–27. If the pleadings affirmatively negate the existence

                                             4
of jurisdiction, a plea to the jurisdiction may be granted without allowing the plaintiff an
opportunity to amend. Id. at 227.

        Under the Eleventh Amendment to the United States Constitution, state agencies
are entitled to sovereign immunity in their own courts unless Congress validly abrogates,
or the state waives, this immunity. See Univ. of Tex. at El Paso v. Herrera, 322 S.W.3d
192, 195 (Tex. 2010); Tex. Dep’t of Transp. v. Esters, 343 S.W.3d 226, 232 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). In enacting section 1983, Congress did not abrogate
the states’ immunity, and the Texas Legislature has not waived sovereign immunity for
section 1983 suits. See Quern v. Jordan, 440 U.S. 332, 337–45 (1979); Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007); Esters, 343 S.W.3d at 232.
Therefore, Cannon’s petition affirmatively negates the trial court’s jurisdiction because
the Department is immune from Cannon’s section 1983 claim. See Esters, 343 S.W.3d at
232–33 (holding state agency was immune from suit under section 1983).

       Nevertheless, Cannon suggests that dismissal of her suit against the Department is
improper because she advances claims under Texas Penal Code section 22.04 and Texas
Education Code section 22.0511, which purportedly waive sovereign immunity.2 Penal
Code section 22.04 makes injury to a child, an elderly individual, or a disabled individual
a criminal offense. Tex. Penal Code Ann. § 22.04 (West Supp. 2011). Education Code
section 22.0511 limits liability of a “professional employee of a school district” for
certain acts within the scope of his employment subject to exceptions including use of
excessive force in disciplining students or negligence resulting in bodily injury to
students. Tex. Educ. Code Ann. § 22.0511 (West Supp. 2011).

       Notwithstanding that neither statute creates a civil cause of action and the
Department is not a school-district employee, Cannon did not plead any claims under
these statutes. In her petition, Cannon mentioned these statutes only when alleging that

       2
         Cannon actually concedes she “cannot maintain” a section 1983 suit against the Department,
although Cannon bases this concession on the fact the Department is not a “person” under section 1983—
the contention we have not addressed. Cannon does not expressly acknowledge that the Department is
immune from suit under section 1983, although we have concluded it enjoys such immunity.

                                                  5
they supported jurisdiction relative to the claims she did plead. Regardless, even if
Cannon’s petition may be construed as alleging claims under these statutes, the
Department’s general assertion of sovereign immunity in its plea to the jurisdiction was
sufficient to encompass such claims.         Nothing in these statutes waives sovereign
immunity for a civil suit against a state agency. See Tex. Penal Code Ann. § 22.04; Tex.
Educ. Code Ann. § 22.0511.

       In summary, the trial court erred by denying the Department’s plea to the
jurisdiction. We sustain the Department’s first issue.

B.     Motion to Dismiss the Employees

       In appellants’ “First Supplemental Motion to Dismiss Pursuant To Tex. Civ. Prac.
& Rem. Code § 101.106(a) & § 101.106(e),” they requested dismissal of the section 1983
claims against the employees.3 These sections in the Election-of-Remedies provision of
the TTCA 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.
       ...
       (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 Ann. § 101.106(a), (e).

       Section 51.014(a)(5) of the Civil Practice and Remedies Code allows an appeal
from an interlocutory order that “denies a motion for summary judgment that is based on
an assertion of immunity by an individual who is an officer or employee of the state or a
political subdivision of the state.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5).
The Supreme Court of Texas has held that section 51.014(a)(5) authorizes interlocutory

       3
          Because both the Department and the employees filed this motion, we will refer to them
hereinafter collectively as “appellants.”

                                               6
appeal of an order denying a motion to dismiss pursuant to section 101.106(e) because
section 51.014(a)(5) encompasses any order denying assertion of an employee’s
immunity regardless of the procedural vehicle through which such assertion is raised.
Austin State Hosp. v. Graham, 347 S.W.3d 298, 299–301 (Tex. 2011).

        On appeal, appellants contend they were entitled to dismissal of the section 1983
claims against the employees for the following reasons: (1) the claims were not “before
the court” when added in Cannon’s first amended petition; (2) Cannon could not defeat
appellants’ right to dismissal of the employees by filing an amended petition; and (3) the
section 1983 claims against the employees are based on the same subject matter as the
claims against the Department.

        1.      Contention that section 1983 claims were not “before the court”

        First, in the trial court and on appeal, appellants have contended they are entitled
to dismissal of the section 1983 claims against the employees because those claims were
not “before the court” by virtue of Cannon’s adding them in her amended petition.

        As mentioned above, appellants requested dismissal of the tort claims against the
employees in April 2009, but the trial court did not sign an order of dismissal until July
2011; in the interim, Cannon added the section 1983 claims in her amended petition.
Appellants equate a motion to dismiss under section 101.106(e) to a non-suit with respect
to the principle that a non-suit is effective when filed. See Univ. of Tex. Med. Branch at
Galveston v. Estate of Blackmon ex rel. Schultz, 195 S.W.3d 98, 100 (Tex. 2006) (per
curiam). Therefore, according to appellants, the tort claims against the employees were
dismissed “the moment” that the Department requested dismissal of those claims
pursuant to section 101.106(e); thus, there was no existing suit against the employees to
which Cannon could add the section 1983 claims by amending her petition.4

        4
          Although the Department requested dismissal of the tort claims against the employees in their
April 2009 amended answer, they subsequently filed motions requesting such dismissal. We need not
decide whether including a request in an answer constitutes a “motion” under section 101.106(e) because
even the motions were filed before Cannon amended her petition; therefore, appellants’ contention is the
same irrespective of whether the answer or motions constitute the first request under section 101.106(e).

                                                   7
        Relative to this contention, appellants do not argue that Cannon made an election
of remedies barring the section 1983 claims against the employees when she sued the
Department (either under section 1983 or in tort). Specifically, appellants do not suggest
that Cannon may never assert section 1983 claims against the employees because she also
sued the Department. In fact, at the hearing on the motion, appellants argued,

               Now, there’s a body of cases that say 101.106 does not bar 1983
        claims, and I realize that case law is out there. We are not saying that it
        bars 1983 claims. What we’re saying is, that they couldn’t add them in this
        lawsuit because, at the moment we filed that (e) motion to dismiss the
        employees, they were dismissed; there was no lawsuit for them to add to a
        couple years later.


               We’re not saying that if they don’t want to, they can’t go file another
        lawsuit for 1983 claims against them, but the validity of that I’m not – I
        wouldn’t say one way or another,
                ...

               So it’s our position at the moment that the motion was filed they
        were entitled to a dismissal, and the plaintiffs couldn’t add 1983 claims or
        any other claims to the lawsuit. Again, whether or not they could file a
        separate 1983 action and whether 101.106(e) would bar that, that’s not the
        issue here.
        Consequently, appellants essentially present the following issue: whether the tort
claims against the employees were considered dismissed immediately upon the April
2009 request, thereby necessitating a new suit to assert section 1983 claims against the
employees; or, instead, whether the tort claims were considered dismissed only when the
trial court signed an order of dismissal, thereby allowing the section 1983 claims to
continue as already asserted via amended petition in the existing suit.5


        5
          Appellants suggest Cannon was required to file a separate suit to assert section 1983 claims
against the employees. However, considering the present suit was undisputedly still pending against the
Department when Cannon amended her petition, it is not clear whether appellants acquiesce Cannon
could have asserted section 1983 claims against the employees by amended petition in the present suit as
long as she served them again, which would arguably place appellants in the same position as the filing of
a separate suit. Nonetheless, the crux of appellants’ argument is Cannon was required to again institute
suit against the employees to assert section 1983 claims because no suit was pending against them.

                                                    8
       We conclude the tort claims were not effectively dismissed until the trial court
signed an order. Contrary to appellants’ suggestion, section 101.106(e) does not state
that the employees “are immediately dismissed” or “are considered immediately
dismissed” on the filing of the requisite motion. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(e). Rather, the provision states that the employees “shall immediately be
dismissed on the filing of a motion . . . .” Id. The term “shall immediately be dismissed”
(emphasis added) connotes an instruction that certain action must be taken by the trial
court to effect the dismissal. See Fireman’s Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d
767, 768–69 (Tex. 2000) (stating that, in construing statute, court should first consider
plain meaning of words used therein). Moreover, the requirement that a motion be filed
to obtain dismissal indicates that action by the trial court is necessary to effect the
requested relief. See BLACK’S LAW DICTIONARY 1106 (9th ed. 2009) (defining “motion”
as “[a] written or oral application requesting a court to make a specified ruling or order”).

       Appellants seem to focus on the term “immediately” to urge that dismissal is
effective upon the filing of the motion. However, construed in context, we conclude that
“immediately” means dismissal by the trial court is mandatory, not discretionary, and
there are no further matters the court may entertain relative to the employees before it
signs an order of dismissal. Further, we disagree that a motion under section 101.106(e)
is identical to a non-suit with respect to when the dismissal is effective because a non-suit
is taken merely by the filing of “notice”—not a motion. See Tex. R. Civ. P. 162.

       To support their argument that dismissal is effective when the governmental unit
files its motion, appellants cite Graham and Villasan v. O’Rourke, 166 S.W.3d 752, 758
(Tex. App.—Beaumont 2005, pet. denied).

       In Graham, the plaintiff filed health-care-liability claims against a state hospital
and two of its doctor employees. 347 S.W.3d at 299. Pursuant to section 101.106(e), the
hospital filed a motion to dismiss the claims against the doctors, and pursuant to sections
101.106(a) and (e), the doctors filed their own motion. Id. The plaintiff then non-suited
the hospital and argued that this action precluded a ruling on the hospital’s motion to

                                              9
dismiss. Id. at 299, 301. The supreme court disagreed, recognizing that a non-suit does
not prejudice the right of an adverse party to be heard on a claim for pending relief, plus
the doctors had filed their own motion to dismiss. Id. at 301 (citing Tex. R. Civ. P. 162).
Appellants emphasize the following statement by the court: “The Doctors were therefore
entitled to ‘immediate’ dismissal once the Hospital filed its motion.” Id. Contrary to
appellants’ suggestion, the court did not state that the dismissal was considered effective
when the hospital filed its motion, without further action by the trial court. Id. Rather,
the court merely indicated that the right to immediate dismissal of the employees was
perfected when the hospital filed its motion and no subsequent non-suit of the hospital
mooted that right. Id. In fact, the court implicitly acknowledged that action by the trial
court was required to effect the right to dismissal because the court referred to the
hospital’s “pending” motion to dismiss at the time of the non-suit as though the doctors
had not yet been dismissed when the hospital was non-suited. See id.

       Similarly, in Villasan, the plaintiffs filed a medical-malpractice suit against a state
hospital and its doctor employee. 166 S.W.3d at 756. Pursuant to section 101.106(e), the
hospital filed a motion to dismiss the claims against the doctor. Id. The plaintiffs
responded by filing an amended petition omitting the hospital and leaving the doctor as
the sole defendant. Id. at 757. When the doctor filed his own motion to dismiss invoking
section 101.106(e), the plaintiffs contended their voluntary dismissal of the hospital
mooted the doctor’s motion and section 101.106(e) did not apply because they were no
longer suing both the hospital and the doctor. Id. at 757–58. The court of appeals
rejected this contention, recognizing that under section 101.106, when a TTCA claimant
elects to include the governmental unit as a party to a suit, whether alone or in
conjunction with a governmental employee, the claimant has made an irrevocable
election of remedies that she “will look solely to the governmental unit for compensation
for injury.” Id. at 759 (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a)). The
court also stated that this statute making the election of remedies irrevocable controls
over conflicting Texas Rule of Civil Procedure 65, which provides, “‘the instrument for


                                             10
which it [the amended pleading] is substituted shall no longer be regarded as a part of the
pleading in the record of the cause.’” Id. at 762 (quoting Tex. R. Civ. P. 65). Therefore,
the court held that a governmental unit perfects the statutory right to dismissal of its
employee under section 101.106 upon the filing of a motion to dismiss, and
“[s]ubsequent amended pleadings by the plaintiff filed after the government’s filing of its
motion to dismiss the employee do not moot [this] right.” Id. at 758; see also Singleton v.
Casteel, 267 S.W.3d 547, 552 n.6 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)
(noting Villasan for proposition that amending petition does not avoid mandatory
language of section 101.106(e) when dismissal of governmental employee is appropriate
based on original petition).

       Appellants cite the following language in Villasan for the proposition that
“dismissal is immediate the moment the government unit files the § 101.106(e) motion”:

       The statutes governing TTCA suits make the trial judge’s responsibility to
       dismiss the government’s employee mandatory when the government files
       a motion requesting that the claims against its employee be dismissed. The
       trial judge’s duty under these circumstances is not optional.
166 S.W.3d at 762–63. Contrary to appellants’ contention, the Villasan court did not
decide any issue regarding the point at which the dismissal is effective for purposes of
determining when there is no longer an active suit against the employees. See id. at 757–
67.   Instead, the court opined regarding the point at which a plaintiff makes an
irrevocable election to sue the governmental unit and the point at which the unit perfects
its right to dismissal of the employees, for purposes of deciding whether the plaintiff may
moot that right by amending the petition to delete the unit. See id. at 757–63. In fact, in
the above-quoted passage, the court implicitly acknowledged that, although the right to
dismissal of the employee is perfected when the governmental unit files its motion, action
by the trial court is required to effect the dismissal. See id. at 762–63.

       In summary, because Cannon amended her suit to add section 1983 claims against
the employees before the trial court dismissed the tort claims against them, the section
1983 claims were asserted in an existing suit against the employees. Accordingly, the

                                              11
trial court did not err by refusing to dismiss the section 1983 claims on the ground that
they were not “before the court.”

       2.      Contention that Cannon could not defeat appellants’ right to dismissal
               by amending her petition
       Next, again relying on Villasan and subsequent cases citing Villasan, appellants
have suggested in the trial court and on appeal that Cannon “could not defeat the
employees’ right to dismissal by subsequently filing her [amended petition].” However,
Villasan is inapplicable in the present case. Unlike the Villasan plaintiff, Cannon did not
amend her petition to delete the tort claims against the Department in an attempt to moot
her earlier election and defeat appellants’ right to dismissal of the tort claims against the
employees. See id. at 756–58. Indeed, in her amended petition, Cannon still attempted to
advance tort claims against both the Department and the employees, although she later
dismissed those claims.     Rather, Cannon amended her petition to add section 1983
claims. Nonetheless, any issue regarding appellants’ right to dismissal of the tort claims
against the employees was rendered moot when Cannon subsequently dismissed those
claims.     Relative to their motion to dismiss the section 1983 claims against the
employees, appellants presented only the contention that Cannon was required to initiate
a new suit to advance those claims—the contention we have rejected, as discussed above.

       3.      Contention that dismissal was required because section 1983 claims are
               based on same subject matter as claims against the Department
       Finally, on appeal, appellants now suggest that Cannon’s section 1983 claims
against the employees are directly barred under section 101.106(a) because they are
based on the same subject matter as Cannon’s suit against the Department. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(a). However, we will not consider this contention
because the trial court did not deny the section 101.106 motion on this ground. As
discussed above, appellants did not move to dismiss the section 1983 claims against the
employees on this ground they now present on appeal. In their motion, appellants
presented only the two contentions addressed above. In particular, appellants did not
argue that Cannon made an election of remedies which “forever bars” the section 1983

                                             12
claims against the employees because she also sued the Department (either under section
1983 or in tort). See id. Rather, appellants represented at the hearing that they were not
presently arguing the section 1983 claims against the employees are forever barred under
section 101.106. Instead, appellants recognized that, if the section 1983 claims against
the employees were dismissed from the present suit because they were not “before the
court,” Cannon might assert them in a separate suit, at which point appellants might raise
an issue on whether the claims are forever barred.

      In summary, we have rejected appellants’ first two arguments challenging the trial
court’s denial of the motion to dismiss the section 1983 claims against the employees,
and appellants failed to present the last argument in the trial court. Accordingly, we
overrule appellants’ second issue.

                                          III. CONCLUSION

      We reverse the trial court’s order denying the Department’s plea to the jurisdiction
and render judgment dismissing all remaining claims against the Department. We affirm
the orders denying the “First Supplemental Motion to Dismiss” filed by the Department
and the employees with respect to the remaining claims against the employees.




                                                         /s/     Charles W. Seymore
                                                                 Justice


Panel consists of Justices Seymore, Boyce, and Yates.6




      6
          Senior Justice Leslie Brock Yates sitting by assignment.

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