Opinion issued September 1, 2016




                                    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


                                OPINION

     Appellee, Tomas G. Rios, M.D., filed suit against appellants, The University

of Texas Health Science Center at Houston (“UT Health”), Bella Patel, M.D.,
F.C.C.P., Richard W. Smalling, M.D. PhD, Rachshunda Majid, M.D., and Francisco

Fuentes, M.D. Appellant claimed injury from allegedly defamatory statements,

which he asserted resulted in, among other things, the withdrawal of an offer to work

a second year of residency with UT Health. The individual doctors brought a motion

to dismiss. The trial court denied their motion to dismiss. They now bring this

interlocutory appeal. In one issue, the individual doctors argue that the trial court

was compelled to dismiss them from the suit.

      We affirm.

                                   Background

      On April 24, 2015, Rios brought suit against UT Health and the individual

doctors. Rios alleged in his original petition that he had accepted a one-year

appointment with UT Health in 2013. During that year, he wrote a complaint to the

UT Health “compliance office reporting issues relating to patient endangerment,

quality improvement, and other issues that were present during his overnight calls.”

He alleged that, following this complaint, UT Health and the individual doctors took

steps to discredit him, to publish false statements about him, and to interfere with

his current and future employment. He asserted a claim of breach of contract against

UT Health. He asserted claims of tortious interference with existing contract,

tortious interference with future relations, and defamation against UT Health and the

individual doctors.



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      After answering, UT Health filed a plea to the jurisdiction, and the individual

doctors filed motions to dismiss. In their motion to dismiss, the individual doctors

asserted that Rios had received a one-year appointment “to the Cardiovascular

Disease Training Program.” “[The] appointment was made to The University of

Texas System Medical Foundation . . . which was [Rios]’s employer.” The doctors

asserted that, “[p]ursuant to its regular practice, the Program issued a reappointment

letter to [Rios] for the following appointment year.” The reappointment was

rescinded, however, due to a “lack of minimum competencies essential for

continuation in the program.”

      In its plea to the jurisdiction, UT Health asserted that it was part of the

University of Texas System, which is a governmental entity. Based on this, UT

Health asserted that it had governmental immunity and that, accordingly, Rios’s

claims against it were barred. In their motion to dismiss, the individual doctors

asserted that, because Rios had asserted tort claims against UT Health and them, the

trial court was statutorily required by the Texas Tort Claims Act to dismiss the

individual doctors from the lawsuit and proceed against UT Health only. UT Health

and the individual doctors attached evidence of Rios’s employment arrangement but

did not attach any evidence of the individual doctors’ employment arrangements.

      Rios filed an amended petition. In the amended petition, he asserted his

claims of tortious interference with existing contract, tortious interference with



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future relations, and defamation against the individual doctors only. His only claim

against UT Health in the amended petition was for breach of contract. Rios also

added a Section 1983 claim against the individual doctors in his amended petition.

      UT Health and the individual doctors amended their plea to the jurisdiction

and motions to dismiss. Their arguments in the motions remained the same, but their

motions referred to Rios’s amended petition instead of his original petition.

      Rios filed a response to the plea to the jurisdiction and motions to dismiss. In

it, Rios pointed out that there was no proof that the individual doctors were

employees of UT Health. Accordingly, Rios argued, the individual doctors failed to

establish that they were entitled to be dismissed from the suit. Rios raised this same

argument at the hearing on the motions. The trial court dismissed Rios’s breach of

contract claim against UT Health but denied the remainder of the motions.

                              Texas Tort Claims Act

      In their sole issue, the individual doctors argue the trial court was compelled

to dismiss them from the suit.

A.    Standard of Review

      A trial court’s order on a motion to dismiss is commonly reviewed under an

abuse of discretion standard. Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.—

Houston [1st Dist.] 2015, no pet.) (citing Am. Transitional Care Ctrs. of Tex., Inc. v.

Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). “However, the proper standard of



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review is not necessarily determined by the caption of the motion to which the order

relates, rather it is determined by the substance of the issue to be reviewed.” Id.

(citing Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.]

2008, pet. denied)).

      Here, the motions to dismiss raised the issue of immunity. See Franka v.

Valasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating that Section 101.106 of

Texas Tort Claims Act confers immunity in some instances to employees of

governmental units); Fink, 477 S.W.3d at 465 (same). If immunity applies, the trial

court lacks subject-matter jurisdiction over the case. See Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Univ. of Tex. Health Sci. Ctr.

at San Antonio v. Webber–Eells, 327 S.W.3d 233, 240 (Tex. App.—San Antonio

2010, no pet.). Subject-matter jurisdiction is a question of law, which we review de

novo. Miranda, 133 S.W.3d at 226. Likewise, matters of statutory construction are

reviewed under a de novo standard. City of San Antonio v. City of Boerne, 111

S.W.3d 22, 25 (Tex. 2003).

B.    Analysis

      Section 101.106 of the Texas Tort Claims act provides, in pertinent part, “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(e)



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(Vernon 2011). The Supreme Court of Texas has held that, in a plea to the

jurisdiction for a party claiming governmental immunity, the party filing the plea

bears the initial burden of establishing that it is a governmental entity. Lubbock Cty.

Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 305

(Tex. 2014). We have held that employees of a governmental entity seeking the

application of immunity under the Texas Tort Claims Act bear the initial burden of

proving they are employees of a governmental unit. See Fink, 477 S.W.3d at 465–

66 (applying subsection 101.106(f)); see also Olivares v. Brown & Gay Eng’g, Inc.,

401 S.W.3d 363, 376–77 (Tex. App.—Houston [14th Dist.] 2013), aff’d, 461 S.W.3d

117 (Tex. 2015) (holding party claiming to be employee bears burden of proving “it

is in the paid service of a governmental unit and that it is not an independent

contractor, agent or employee of an independent contractor, or someone who

performs tasks the details of which the governmental unit does not have a legal right

to control”).

      Subsection 101.106(e) applies when suit is filed “against both a governmental

unit and any of its employees.” CIV. PRAC. & REM. § 101.106(e). Because the

individual doctors were seeking to be dismissed based on their status as employees

of UT Health, it was necessary for the individual doctors to establish that UT Health

was a governmental entity and that the individual doctors were employees of UT




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Health. See Lubbock Cty., 442 S.W.3d at 305; Fink, 477 S.W.3d at 465–66. The

Act defines “employee” as

      a person, including an officer or agent, who is in the paid service of a
      governmental unit by competent authority, but does not include an
      independent contractor, an agent or employee of an independent
      contractor, or a person who performs tasks the details of which the
      governmental unit does not have the legal right to control.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (Vernon Supp. 2015).

      The individual doctors presented no proof in their motions to dismiss that they

were employees of UT Health as defined by the Act. Accordingly, they did not carry

their burden of establishing a right to dismissal. See Fink, 477 S.W.3d at 465–66.

      The individual doctors never addressed Rios’s argument that they failed to

establish they were employees of a governmental entity until their reply brief on

appeal. In it, the individual doctors suggest that UT Health’s filing the motion to

dismiss was itself proof that they were governmental employees. The individual

doctors reason that “the government would not take on the additional risk for the

benefit of a non-employee.” Their only support for this assertion is Texas Adjutant

General’s Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013). Their reliance on

Ngakoue is misplaced.

      In Ngakoue, the Texas Supreme Court distinguished between subsection (f)

of section 101.106—which requires proof that the employee’s actions were within

the general scope of his employment—and subsection (e) of the same statute—



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which does not have this requirement. Id. at 357–58. The court reasoned, “By filing

such a motion [based on subsection (e)], the governmental unit effectively confirms

the employee was acting within the scope of employment and that the government,

not the employee, is the proper party.” Id. at 358. The court was explaining, then,

the reason the “general scope of employment” language was absent from subsection

(e). See id. Regardless of what other language is absent, subsection (e) explicitly

makes dismissal contingent on a defendant being an employee of a governmental

unit. CIV. PRAC. & REM. § 101.106(e). The individual doctors bore the burden of

proof on this to obtain dismissal, which they did not do. See Fink, 477 S.W.3d at

465–66.

      The dissent strives to establish that the record firmly shows that the individual

doctors were employees (as defined by the Texas Tort Claims Act) of UT Health.

The dissent relies on two things as proof that the individual doctors are employees

of UT Health: the allegations in the motion to dismiss and one exhibit attached to

the motion.

      The exhibit upon which the dissent relies is a letter designated as a “notice of

non-reappointment and rescission of appointment.”         The letter was signed by

Fuentes, one of the individual doctors. The letterhead contains UT Health’s logo.

Under the signature, Fuentes identifies himself as “Program Director.” This does

nothing to establish that Fuentes was an employee of UT Health as defined by the



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Texas Tort Claims Act, to say nothing of the remaining individual doctors. See CIV.

PRAC. & REM. § 101.001(2) (defining employee as person “in the paid service” of

the governmental entity that is not independent contractor, agent or employee of

independent contractor, or person who performs tasks which governmental entity

does not have right to control); Olivares, 401 S.W.3d at 376–77 (same).

      The remainder of the dissent’s proof rests on UT Health’s assertion in its

motion to dismiss that all of the individual doctors were employees of UT Health. It

is a well-established principal of law, however, that pleadings are not proof. See,

e.g., Marshall v. Telecomms. Specialists, Inc., 806 S.W.2d 904, 908 (Tex. App.—

Houston [1st Dist.] 1991, no writ) (“Pleadings are not proof.”).

      Even the plea-to-the-jurisdiction law upon which the dissent relies establishes

that the dissent has flipped the proper application of the law. In a plea to the

jurisdiction, the jurisdictional facts alleged in the plaintiff’s pleadings are presumed

to be true. See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502–03 (Tex. 2010)

(“It has long been the rule that a plaintiff’s good faith allegations are used to

determine the trial court’s jurisdiction.”). A defendant who challenges the pleadings

must come forth with proof that the jurisdictional allegations are wrong. See Tex.

Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (holding

only after defendant “asserts and supports with evidence” jurisdictional facts does

burden shift to plaintiff to present proof of jurisdiction). There is no law to support



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the dissent’s assertion that UT Health’s allegations in its motion somehow

constitutes proof to affirmatively negate jurisdiction. See Green Tree Servicing,

LLC v. Woods, 388 S.W.3d 785, 793 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

(rejecting raising jurisdictional challenges in motion for no-evidence summary

judgment because doing so would, among other things, deny plaintiff right “to stand

on the pleadings in the absence of evidence negating jurisdiction”).

      Appellants’ sole issue is overruled.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

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

Chief Justice Radack, concurring in the judgment.

Justice Keyes, dissenting.




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