      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00198-CV



                                   Patricia Burdett, Appellant

                                                 v.

                                       John Doe, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
        NO. GN403339, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is an interlocutory appeal from an order denying Burdett’s motion for

summary judgment on immunity grounds. The plaintiff below, John Doe, filed suit against the City

of Austin and Burdett, both individually and in her official capacity as an employee of the City, for

the wrongful disclosure of his HIV-positive status.1 After his statutory claims against the City were

dismissed on the basis that they were barred by governmental immunity, Doe reached a settlement

with the City and his remaining claims against the City were dismissed with prejudice. Burdett then

asserted that the election-of-remedies and settlement provisions of the Texas Tort Claims Act

(the “Act”) barred Doe’s claims against her arising out of the same subject matter as Doe’s

suit against her government employer. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (c)




       1
          Doe also filed suit against another employee of the Clinic, Michelle Avery, who is not a
party to this appeal.
(West 2005). Because the Tort Claims Act bars Doe’s suit against Burdett, we reverse the order of

the district court and render summary judgment in favor of Burdett.


                                           BACKGROUND

                  Since March of 1997, Doe was a regular patient at the City-run David Powell Clinic,

where he received treatment for HIV. He alleges that Burdett, while employed as a receptionist at

the Clinic, routinely harassed and discriminated against him, and on one occasion, intentionally

disclosed his HIV-positive status by loudly yelling his true, full name across the waiting room lobby.

He also asserts that Burdett and Michelle Avery, another Clinic employee, publicly disclosed his full

name and HIV-positive status in a crowded restaurant and were overheard by several people. After

filing a formal complaint with the Clinic, Doe brought suit against the City, Burdett, and Avery,

alleging the following causes of action: (1) as against all defendants, violations of the Texas Health

and Safety Code for the willful release or disclosure of confidential test results; (2) as against all

defendants, violations of Doe’s privacy rights under the Texas Constitution; and (3) as against

Burdett and Avery, the intentional infliction of emotional distress. Doe sought damages under

section 81.104 of the health and safety code, as well as compensatory and punitive damages

for emotional distress and health deterioration, declaratory and injunctive relief, and attorney’s

fees and costs.

                  In response, the City asserted that it was immune from Doe’s statutory claims because

the HIV-confidentiality provisions of the health and safety code did not waive its governmental

immunity. After the district court granted the City’s motion to dismiss the statutory claims, Doe

and the City settled, and Doe’s remaining claims against the City were dismissed by agreement

                                                    2
pursuant to the settlement. Thereafter, Burdett moved for summary judgment arguing that because

Doe elected to file suit against her government employer, the Act barred him from asserting claims

against her as an employee regarding the same subject matter. See id. § 101.106(a) (barring recovery

against individual employee when plaintiff files suit against government employer “under this

chapter”). She also maintained that, as a result of Doe’s settlement with the City, the Act precluded

him from recovering against her as an employee. See id. § 101.106(c) (barring recovery against

individual employee when settlement is reached with government employer concerning claims

brought “under this chapter”). Doe responded that because he had not filed suit against the City

under the Act and because none of his claims arose under the Act, these provisions had no effect

on his suit against Burdett. After a hearing, the district court denied Burdett’s motion for summary

judgment, and she now appeals. See id. § 54.014(5) (West 2008) (authorizing interlocutory appeal

from order denying motion for summary judgment based on government employee or official’s

assertion of immunity); see also Newman v. Obersteller, 960 S.W.2d 621, 621 (Tex. 1997) (holding

that section 101.106 is immunity statute for purposes of section 54.015(5)).


                                          DISCUSSION

               In her sole issue on appeal, Burdett contends that the trial court erred in denying

her motion for summary judgment because Doe’s claims are barred by section 101.106 of the

Texas Civil Practice and Remedies Code.

               We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). Burdett’s motion raises an issue of official immunity under

the Tort Claims Act that, if applicable, would deprive the court of subject-matter jurisdiction. See

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Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Subject-matter

jurisdiction is a question of law, which we review de novo. Id. at 226. Likewise, deciding whether

Doe’s claims fall under the Tort Claims Act is a matter of statutory construction, which we also

review de novo. In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004).

               Section 101.106(c) provides, “The settlement of a claim arising under this chapter

shall immediately and forever bar the claimant from any suit against or recovery from any employee

of the same governmental unit regarding the same subject matter.” Tex. Civ. Prac. & Rem. Code

Ann. § 101.106(c). There is no dispute in this case that Doe settled his claims against the City

regarding the same subject matter as his claims against Burdett. The issue is whether the settled

claims arose “under this chapter,” i.e., the Tort Claims Act, therefore entitling Burdett to immunity.

Doe argues that his claims against the City—violations of the confidentiality provisions of the

health and safety code and his right to privacy under the Texas Constitution—do not fall under the

Tort Claims Act. Burdett asserts that while Doe did not bring suit pursuant to a specific waiver of

immunity under the Tort Claims Act, his pleading of the tort of invasion of privacy against the

City impliedly invoked the Act, such that the settlement of Doe’s claims against the City arose

“under this chapter.”2


       2
          Although the parties disagree as to whether Doe asserted a claim against the City for
violations of his “common law right to privacy,” it is undisputed that Doe pleaded a cause of
action “against all Defendants” for violations of his right to privacy under the Texas Constitution
Bill of Rights.

          After the City was dismissed from the suit, and after the hearing on and denial of Burdett’s
motion for summary judgment, Doe amended his petition to assert the violation of privacy claims
against only Burdett and Avery. Thus, as Doe concedes, the only live pleading properly before us
is Doe’s original petition. Moreover, like the other courts faced with this issue, we conclude that we

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               We agree with Burdett. Under Mission Consolidated Independent School District

v. Garcia, 253 S.W.3d 653 (Tex. 2008), it is clear that “all tort theories alleged against a government

unit” are brought “under the [Tort Claims Act]” for purposes of section 101.106. See 253 S.W.3d

at 659 (citing Newman, 960 S.W.2d at 622-23). As the Texas Supreme Court explained, “Because

the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the

government, all tort theories alleged against a government unit, whether it is sued alone or together

with its employees, are assumed to be ‘under the [Act].’” Id. This is the case even when the plaintiff

asserts intentional torts or other claims against the governmental unit for which the Act has not

waived immunity. Id. at 658-59 (citing Harris County v. Sykes, 136 S.W.3d 635, 640 (Tex. 2004)

(applying section 101.106 to bar plaintiff’s claim against governmental employee even though

immunity was not waived under Tort Claims Act); Dallas County Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998) (dismissing suit against employee when

both employee and governmental unit were sued based on negligence theories that were not within

Act’s limited waiver); Liu v. City of San Antonio, 88 S.W.3d 737, 744 (Tex. App.—San Antonio

2002, pet. denied) (dismissing intentional tort claims against employee when the governmental unit

had also been sued); Flores v. Law, 8 S.W.3d 785, 786-87 (Tex. App.—Houston [1st Dist.] 1999,




must look to the plaintiff’s original petition, rather than his amended petition, in deciding whether
a tort claim was brought against the City for purposes of the section 101.106 analysis. See, e.g.,
Brown v. Ke Ping Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
(concluding that plaintiff’s original petition, not amended petition, is proper pleading to scrutinize
in determining whether dismissal under section 101.106(e) is appropriate); Villasan v. O’Rourke,
166 S.W.3d 752, 762 (Tex. App.—Beaumont 2005, pet. denied) (holding that amending petition
does not avoid mandatory language of section 101.106(e) where dismissal of government employee
is appropriate based on original petition).

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pet. denied) (dismissing medical malpractice suit against employee when governmental unit had

also been sued); White v. Annis, 864 S.W.2d 127, 132 (Tex. App.— Dallas 1993, writ denied)

(dismissing negligent-training suit against employee when governmental unit was also sued)).

                It is clear after Garcia that because Doe sought recovery from the City for violations

of his right to privacy under the bill of rights of the Texas Constitution, his claims were brought

“under the Act” for purposes of section 101.106. While framed as a constitutional violation, Doe’s

suit sought damages from the City. As such, his claim for damages for constitutional violations is

a suit against the State that invokes the doctrine of sovereign immunity. Doe has asserted a claim for

invasion of privacy, an intentional tort, see Billings v. Atkinson, 489 S.W.2d 858, 860-61

(Tex. 1973), for which the Tort Claims Act has not waived immunity, Tex. Civ. Prac. & Rem. Code

Ann. § 101.057 (West 2005) (sovereign immunity exists for intentional torts). The fact that the

Texas Supreme Court has recognized that our constitution protects personal privacy from

unreasonable governmental intrusions, see Texas State Employees Union v. Texas Dep’t of Mental

Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987), does not amount to a waiver of

immunity for the purposes of the Tort Claims Act.3 Therefore, because Doe’s invasion of privacy




        3
           Doe has cited no authority, nor have we found any, holding that the bill of rights of the
Texas Constitution waives a governmental unit’s immunity or creates an implied right of action for
invasion of privacy claims. His assertion that “a constitutional claim in itself waives sovereign
immunity” and citation to this Court’s decision in Texas State Employees Union v. Texas Workforce
Commission, 16 S.W.3d 61 (Tex. App.—Austin 2000, pet. ), is inapposite. In that case, we held
that sovereign immunity did not bar a suit for injunctive relief to prevent a state agency from
acting outside of its constitutional and statutory authority. Id. at 69. Suits for equitable remedies
for violation of constitutional rights are not prohibited because such relief is fundamentally “different
from seeking compensation for damages, or compensation in money for a loss or injury.” City of
Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995).

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claim against the City was a claim “arising under” the Tort Claims Act that was settled, we hold that

section 101.106(c) bars Doe’s claims against Burdett.


                                         CONCLUSION

               Because Doe’s suit was brought under the Texas Tort Claims Act for purposes of

section 101.106 of the civil practice and remedies code, therefore barring recovery against Burdett

as a result of Doe’s settlement with the City, we reverse the district court’s order and render

summary judgment in favor of Burdett.




                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Reversed and Rendered

Filed: December 17, 2008




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