Motion to Consider Denied; Affirmed in part, Reversed in part, Remanded,
and Memorandum Opinion filed December 17, 2019.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-18-00147-CV

                         JUAN ENRIQUEZ, Appellant
                                         v.

                   EDUARDO ORIHUELA, M.D., Appellee

                   On Appeal from the 122nd District Court
                          Galveston County, Texas
                     Trial Court Cause No. 17-CV-1173

                          MEMORANDUM OPINION

      Inmate Juan Enriquez appeals the Travis County district court’s granting of
appellee Eduardo Orihuela, M.D.’s motion to transfer venue and the Galveston
County district court’s granting of Orihuela’s motion to dismiss. Enriquez argues:
(1) venue in Travis County is mandatory under Civil Practice and Remedies Code
section 15.014; and the Galveston County district court improperly dismissed with
prejudice his claims against Orihuela under (2) section 101.106(f) of the Texas Tort
Claims Act (TTCA) and (3) Civil Practice and Remedies Code section 14.005.

      We conclude that the Travis County district court did not err in transferring
venue to Galveston County and the Galveston County district court properly
dismissed with prejudice Enriquez’s tort claims against Orihuela. However, we
conclude that the Galveston County district court erred in dismissing with prejudice
Enriquez’s federal statutory claims based on Eighth Amendment violations pursuant
to section 1983 and Enriquez’s claims for prospective equitable relief to remedy
Texas constitutional violations.

       We therefore affirm in part, reverse in part, and remand.

                                     I.     BACKGROUND

      Enriquez is currently housed in the Terrell Unit operated by the Texas
Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID).1

      According to Enriquez, in 2014, when he was housed in the Michael Unit
operated by the TDCJ-CID,2 a prison nurse “referred [him] to a provider” after
Enriquez presented at sick call with serious medical symptoms. Senior Warden
Eddie Baker did not help Enriquez see a provider, and prison infirmary personnel
refused to attend to him. Later, a prison doctor examined Enriquez and requested an
expedited transfer to John Sealy Hospital, associated with the University of Texas
Medical Branch at Galveston (UTMB), for a scheduled cancer pathology evaluation.
Baker did not transfer Enriquez, and prison personnel refused to transport him to
John Sealy.

      In 2015, a prison nurse practitioner referred Enriquez to John Sealy for acute
kidney failure. A hospital resident admitted Enriquez to John Sealy for kidney and

      1
          The Terrell Unit is located in Brazoria County.
      2
          The Michael Unit is located in Anderson County.

                                                 2
prostate issues. A hospital supervising surgeon informed Enriquez that he was
diagnosed with benign prostatic hyperplasia (BPH) and the surgeon would perform
a procedure to correct the prostate problem. According to Enriquez, a hospital
attending physician, Ahmed A. Morsy, M.D., failed and refused to treat Enriquez’s
kidney failure and to correct his prostate problem and instead approved his
discharge.

      Subsequently, the prison nurse practitioner diagnosed Enriquez with anemia
due to kidney damage. Another hospital resident examined Enriquez at John Sealy
but only treated his prostate problem. Orihuela examined Enriquez, “actively
participated in the decision-making process undertaken” by the resident, was present
for the BPH procedure, and refused “to comply with [Enriquez’s] request for
treatment for his kidneys and for the anemia.” Enriquez’s continuing anemia was not
treated.

      Later in 2015, despite repeated requests to be treated for his kidney and
catheter issues and to get the results from recent blood tests, Enriquez did not see a
provider for over two months. A prison doctor examined Enriquez, ordered lab tests
for a urinary tract infection (UTI), and scheduled a follow-up appointment to select
an antibiotic for the UTI. Prison employees did not produce Enriquez for this
appointment. Another prison doctor then ordered additional lab tests and scheduled
a follow-up appointment. Prison employees also did not produce Enriquez for this
appointment. Enriquez’s “untreated UTI was so severe” that he was ultimately
transported by prison van to Palestine Regional Medical Center and received
antibiotic shots for an epididymis infection.

      In 2016, Enriquez’s epididymis infection returned. Prescribed antibiotics did
not work. The prison nurse practitioner ordered antibiotic shots and oral antibiotics.
The prison nurse scheduled to administer the shots told Enriquez they were no longer

                                          3
available. The oral antibiotics took a month to resolve his infection. According to
Enriquez, Lannelle Linthicum, M.D., the Director of Medical Services for
TDCJ-CID, has a policy and practice of allowing prisoners’ serious medical needs
to go unattended, undiagnosed, and untreated as dictated by prison policies
promulgated and implemented by Dale Wainwright, the chairman of the Texas
Board of Criminal Justice (TBCJ); Brad Livingston, the executive director of the
TDCJ; and Baker.

      In 2017, Enriquez filed suit pro se and claimed indigence in Travis County
district court (trial court cause number D-1-GN-16-005852) against Wainwright,
Morsy, Orihuela, Linthicum, Livingston, and Baker, both individually and in their
official capacities. Enriquez alleged claims of: (1) deliberate indifference to serious
medical need of treatment for prostate cancer against Baker; (2) deliberate
indifference to serious medical need of treatment for acute kidney failure against
Morsy and Orihuela; (3) deliberate indifference to serious medical need to correct
benign prostatic hyperplasia (BPH) against Morsy and Orihuela; (4) deliberate
indifference to serious medical need of treatment for anemia against Orihuela;
(5) deliberate indifference to serious medical need for treatment of UTIs against all
“Defendants”; (6) negligence against all “Defendants”; and (7) exemplary damages
when his injuries resulted from all “Defendants’ gross negligence, malice, or fraud.”
Enriquez prayed for the following relief: (a) a writ of mandamus directing all
“Defendants” to provide him with certain treatment for his BPH not to be performed
by doctors connected with TDCJ or UTMB; (b) a writ of mandamus directing all
“Defendants” to provide him with evaluation of and treatment for his kidneys not to
be performed by doctors connected with TDCJ or UTMB; (c) a writ of mandamus
directing all “Defendants” to provide him with treatment for his anemia not to be
performed by doctors connected with TDCJ or UTMB; (d) prospective equitable


                                          4
relief; (e) actual, exemplary, and nominal damages; (f) pre- and postjudgment
interest; and (g) any other relief in equity or law.

       Enriquez alleged that general venue was proper in Travis County—the
location of Wainwright’s principal office as TBCJ chairman, and of Livington’s
residence and his principal office as TDCJ executive director. Enriquez alleged that
because he sought mandamus relief against the head of a state agency, venue was
mandatory in Travis County under Civil Practice and Remedies Code section
15.014. Enriquez further alleged that venue was “proper in Travis County as the
injunctive relief sought is ancillary to the tort and other claims made in this lawsuit.”

       Orihuela filed a motion to transfer venue to Galveston County.3 Orihuela
argued that the complained-of medical care was rendered while Enriquez was being
treated at UTMB, a state agency, where Orihuela is a faculty member employee.
According to Orihuela, because Enriquez brought his lawsuit against Orihuela in his
official capacity as an employee of UTMB, the suit was inherently against UTMB
and was governed by the TTCA’s mandatory-venue provision. See TTCA, Tex. Civ.
Prac. & Rem. Code Ann. § 101.102(a). Orihuela filed an affidavit wherein he
attested that he was a faculty member for the Department of Urology and salaried
employee of UTMB, he received his paycheck from the State of Texas, and his
involvement in Enriquez’s medical care was pursuant to his employment.4

       Enriquez filed a motion to strike and a response to Orihuela’s motion to
transfer venue. Enriquez argued that Travis County was the proper venue because

       3
         Also contained in our record is Baker’s motion to transfer venue to Anderson County
pursuant to Civil Practice and Remedies Code section 15.019, Enriquez’s motion to strike Baker’s
motion to transfer venue, Enriquez’s reply to Baker’s motion to transfer venue, Baker’s motion to
sever to which Orihuela was unopposed, Enriquez’s response to Baker’s motion to sever, Baker’s
reply to Enriquez’s response to Baker’s motion to sever, and Orihuela’s reply to Enriquez’s
response to severance.
       4
           Orihuela also attached his UTMB faculty memoranda of appointment from 2014 to 2017.

                                               5
he sought mandamus against heads of state agencies (Wainwright as head of TBCJ
and Bryan Collier as head of TDCJ5) and Orihuela did not deny Enriquez’s venue
facts. Enriquez also argued that Orihuela was an employee instead of a governmental
unit and failed to establish mandatory venue in Galveston County. Enriquez
challenged Orihuela’s venue facts that he was a governmental unit and that Enriquez
was suing UTMB. Enriquez filed a “plea to the jurisdiction” containing similar
arguments.

       The Travis County district court held a hearing on Orihuela’s motion to
transfer venue; Enriquez appeared by telephone.6 The Travis County district court
signed an order on July 24, 2017. In pertinent part, the Travis County district court
ordered that Enriquez’s motion to strike was denied, found that Galveston County
was the mandatory venue with respect to Enriquez’s claims against Orihuela, found
the claims against Orihuela involve separate and distinct causes of action that could
be independently asserted against Orihuela in a separate lawsuit and which are not
so interwoven with the remainder of the lawsuit so as to involve the same facts and
issues, ordered that Enriquez’s claims against Orihuela shall be severed and assigned
a new cause number,7 and ordered that after severance Orihuela’s motion to transfer
venue is granted and Enriquez’s case against Orihuela shall be transferred to
Galveston County.

       After the case was transferred to Galveston County district court (trial court
cause number 17-CV-1173), Orihuela filed a motion to dismiss pursuant to TTCA
section 101.106(f) and Civil Practice and Remedies Code chapter 14. Orihuela


       5
           As the case continued, Bryan Collier replaced Livingston as the TDCJ executive director.
       6
         The record does not contain a transcript of this hearing, which also concerned Baker’s
motion to transfer venue and motion to sever.
       7
           The new Travis County district court cause number was D-1-GN-17-003624.

                                                 6
argued that Enriquez’s healthcare liability claim must be dismissed because:
(1) Orihuela met the criteria for dismissal under section 101.106(f) and (2) Enriquez
did not prove that he complied with chapter 14’s administrative exhaustion
requirement in section 14.005.

      Enriquez filed an objection and response to Orihuela’s motion to dismiss.
Orihuela replied. The Galveston County district court on December 8, 2017, signed
its order granting dismissal with prejudice. The Galveston County district court
stated that it “f[ound] . . . Enriquez is a person housed in a secure correctional facility
and therefore subject to the requirements of Civil Practice and Remedies Code
Chapter 14–Inmate Litigation” and that there was “[n]o evidence tendered or
presented by [Enriquez] showing compliance with [section] 14.005.”

      Enriquez filed a motion to vacate judgment and a notice of appeal. Orihuela
filed a response. Enriquez filed a “supplement to motion to vacate judgment and plea
to the jurisdiction.” On March 16, 2018, the Galveston County district court signed
its order denying Enriquez’s motion to vacate.

      This court initially dismissed Enriquez’s appeal. However, we granted
Enriquez’s motion for rehearing, withdrew our prior opinion, vacated our prior
judgment, and reinstated his appeal.

                                    II.    ANALYSIS

      Prior to submission, and after briefing was completed, Enriquez filed a motion
for this court to consider a decision from the Third Court of Appeals—what he
described as a “companion case and related issue.” See Enriquez v. Wainwright, No.
03-18-00189-CV, 2018 WL 6565017, at *1 (Tex. App.—Austin Dec. 13, 2018, no
pet.) (mem. op.) (reversing granting of Wainwright’s and Linthicum’s jurisdictional
plea). We carried this motion with the case. Although we deny Enriquez’s motion,


                                            7
we note that regardless of any filed motion we generally would—and do—consider
all relevant authority as part of our review.

A. Severance of Enriquez’s claims against Orihuela

      In its order, along with granting Orihuela’s requested transfer of venue, the
Travis County district court apparently on its own motion found that Enriquez’s
claims against Orihuela involve separate and distinct causes of action which could
be independently asserted against Orihuela in a separate lawsuit and which are not
so interwoven with the remainder of the lawsuit so as to involve the same facts and
issues, and severed Enriquez’s claims against Orihuela. See Tex. R. Civ. P. 41 (“Any
claim against a party may be severed and proceeded with separately.”); Guar. Fed.
Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (op. on
reh’g) (claim is properly severable under rule 41 if (1) controversy involves more
than one cause of action, (2) severed claim is one that would be proper subject of
independently asserted lawsuit, and (3) severed claim is not so interwoven with
remaining action that they involve same facts and issues).

      Orihuela argues that “Enriquez has waived any argument on appeal that
severance was improper or an abuse of discretion.” See Guar. Fed. Sav. Bank, 793
S.W.2d at 658 (“The trial court’s decision to grant a severance will not be reversed
unless it has abused its discretion.”). We agree. On appeal, Enriquez does not
mention, much less challenge, the Travis County district court’s decision to sever
his claims against Orihuela into a separate lawsuit or advance any argument that the
Travis County district court abused its discretion in severing such claims. See Tex.
R. App. P. 38.1(f). In light of Enriquez’s failure to appeal any severance issue, we
are constrained to consider his issues based only on his severed claims against
Orihuela.



                                           8
B. Enriquez’s venue issue

      1. Venue transfer law and standard of review

      Because venue may be proper in more than one county, the plaintiff is given
the first choice to fix venue in a proper county by filing suit in that county. See In re
Team Rocket, 256 S.W.3d 257, 259 (Tex. 2008). “All venue facts, when properly
pleaded, shall be taken as true unless specifically denied by the adverse party.” Tex.
R. Civ. P. 87(3)(a). If the defendant, however, challenges the plaintiff’s venue
choice, the plaintiff must present prima facie proof that venue is proper. See id.
87(2)(a), 3(a); Wilson v. Tex. Parks and Wildlife Dep’t, 886 S.W.2d 259, 260–61
(Tex. 1994). “Prima facie proof is made when the venue facts are properly pleaded
and an affidavit, and any duly proved attachments to the affidavit, are filed fully and
specifically setting forth the facts supporting each pleading.” Tex. R. Civ. P.
87(3)(a). If the plaintiff does not meet this burden or the defendant brings forth
“conclusive evidence” that destroys the plaintiff’s prima facie proof, then the trial
court “shall transfer the case to another county of proper venue.” Wilson, 886 S.W.2d
at 260. If the plaintiff proves venue facts that support venue, then the trial court must
maintain the lawsuit in the county where suit was filed unless the motion to transfer
is based on an established ground of mandatory venue. Tex. R. Civ. P. 87(3)(c).

      We review the district court’s venue determination de novo. See Wilson, 886
S.W.2d at 261–62. On appeal of a venue determination, we review not only the
pleadings and affidavits, but also the entire record. See Tex. Civ. Prac. & Rem. Code
Ann. § 15.064(b); Wilson, 886 S.W.2d at 261. We look for any probative evidence
to support the plaintiff’s choice of venue, even if the evidence preponderates to the
contrary. See Wilson, 886 S.W.2d at 262. If any probative evidence supports the
plaintiff’s choice, then transferring venue is reversible error. See Tex. Civ. Prac. &
Rem. Code Ann. § 15.064(b); Wilson, 886 S.W.2d at 262.

                                           9
      2. Galveston County as county of proper venue

      In his first issue, Enriquez argues that the district court erred in transferring
venue because he seeks mandamus against the head of a state department and
therefore venue is mandatory in Travis County. Civil Practice and Remedies Code
section 15.014, entitled “Head of State Department,” located within subchapter B,
entitled “Mandatory Venue,” specifically provides: “An action for mandamus
against the head of a department of the state government shall be brought in Travis
County.” Tex. Civ. Prac. & Rem. Code Ann. § 15.014 (emphasis added).

      In his petition, Enriquez did not allege any “venue” facts specific to Orihuela.
In the “parties” section of his petition, Enriquez alleged that Orihuela was a resident
of Texas and could be served at UTMB’s address in Galveston. Enriquez further
alleged that Orihuela was charged with the medical care and treatment of prisoners
admitted to UTMB and at all relevant times “was acting under color of law.” In
addition, within the “facts” section of his petition, Enriquez alleged that Orihuela
examined him, was involved in decision-making for his prostate issue, and refused
to treat him for his kidney and anemia issues while Enriquez was at John Sealy.
Within his “causes of action,” Enriquez alleged that Orihuela knew of his BPH
diagnosis and that he was allergic to the drugs normally used to treat BPH, yet
refused to correct his BPH with an alternative minimally-invasive procedure.
Enriquez alleged that Orihuela knew of his kidney failure symptoms and that his
kidney failure was chronic, and of his anemia diagnosis, yet refused to treat his
kidney and anemia issues.

      Orihuela challenged Enriquez’s venue choice of Travis County. Orihuela
invoked TTCA section 101.102 as a mandatory basis to transfer venue to Galveston
County. In addition, Orihuela argued that Enriquez “asserts that he was examined at
UTMB (‘John Sealy Hospital’) on May 28, 2015, by Dr. Orihuela, who refused to

                                          10
comply with [Enriquez]’s request for treatment for his kidneys and anemia” and
“[a]s alleged by [Enriquez,] all the complained of medical care provided by Dr.
Orihuela occurred in Galveston County, Texas, where UTMB is located.” In his
affidavit, Orihuela attested that he was a faculty member for the Department of
Urology and salaried employee of UTMB, he received his paycheck from the State
of Texas, and his involvement in Enriquez’s medical care was pursuant to his
employment.

      Without the claims against previously-joined state department heads
Wainwright and Livingston (Collier), there is no proper basis for mandatory venue
in Travis County under section 15.014 for Enriquez’s claims against Orihuela. See
Tex. Civ. Prac. & Rem. Code Ann. § 15.014; Telfer v. Adams, No. 05-17-01387-CV,
2019 WL 494023, at *3 (Tex. App.—Dallas Feb. 8, 2019, no pet.) (mem. op.)
(concluding when appellants did not challenge severance of claims that no
mandatory venue existed based on claims against previously-joined party).

      We next consider whether Enriquez presented any prima facie proof that
venue otherwise was proper in Travis County. Under the general-venue rule, a suit
must be brought in one of the following counties:

      (1) in the county in which all or a substantial part of the events or
      omissions giving rise to the claim occurred;
      (2) in the county of defendant’s residence at the time the cause of action
      accrued if defendant is a natural person;
      (3) in the county of the defendant’s principal office in this state, if the
      defendant is not a natural person; or
      (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which
      the plaintiff resided at the time of the accrual of the cause of action.

Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a). Our review of the entire record,
however, does not reveal any allegation or probative evidence tending to support


                                          11
that Travis County was a proper county for venue of Enriquez’s claims against
Orihuela under any subdivision of the general-venue rule. See id.

       Rather, the record demonstrates that general venue properly lies in Galveston
County under subdivision (1) because all or a substantial part of the events or
omissions giving rise to Enriquez’s claims against Orihuela concerning his alleged
refusal to treat Enriquez’s prostate, kidney, and anemia issues occurred at John
Sealy. See id. § 15.002(a)(1). In other words, Galveston County instead of Travis
County is a county of proper venue for Enriquez’s claims against Orihuela.

       Under these circumstances, when the record indicates that Travis County is
not a proper venue and that Galveston County is a proper venue, we conclude the
Travis County district court did not err in transferring venue of the severed claims
against Orihuela to Galveston County.8 See Wilson, 886 S.W.2d at 260.

       We overrule Enriquez’s first issue.

C. Enriquez’s dismissal issue

       Orihuela raised two bases for dismissal of Enriquez’s claims against him:
(1) application of TTCA section 101.106(f) and (2) Enriquez’s failure as an inmate
to exhaust his administrative remedies pursuant to Civil Practice and Remedies Code
section 14.005. The Galveston County district court dismissed Enriquez’s claims
against Orihuela with prejudice, expressly stating that Enriquez was subject to
chapter 14’s requirements and did not present evidence that he complied with section
14.005’s requirement to exhaust his administrative remedies.

       Enriquez attacks both bases for the Galveston County district court’s

       8
         Because we must uphold a trial court’s decision on any legal theory that supports it, see
Guar. Cty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam), we do not
address whether mandatory venue for Enriquez’s claims against Orihuela lies in Galveston County
under TTCA section 101.102(a). See Tex. R. App. P. 47.1.

                                               12
dismissal. We first consider Enriquez’s third issue challenging the Galveston County
district court’s stated reason for dismissal of his claims against Orihuela based on
Enriquez’s lack of compliance with section 14.005.

      1. Chapter 14’s exhaustion requirement

      Chapter 14 of the Civil Practice and Remedies Code governs inmate litigation.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014. Under this chapter, a trial
court has discretion to dismiss an inmate’s suit if it finds that the claim is frivolous
or malicious. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003; Martinez v. Thaler,
931 S.W.2d 45, 46 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (per
curiam). A trial court abuses its discretion if it acts arbitrarily, capriciously, or
without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A claim is frivolous if it has
no basis in law or fact. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(2). “A
claim has no arguable basis in law if a prisoner has failed to exhaust his
administrative remedies.” Retzlaff v. Tex. Dep’t of Crim. Justice, 94 S.W.3d 650,
653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); see Tex. Civ. Prac. &
Rem. Code Ann. § 14.005.

      In his motion to dismiss, Orihuela argued that prior to filing suit Enriquez was
required to exhaust his administrative remedies “available through the” TDCJ and
attach required documentation in support of his petition. According to Orihuela,
Enriquez was required to submit “Step 1” and “Step 2” written offender grievances
through the TDCJ and receive responses prior to filing his suit. See Tex. Civ. Prac.
& Rem. Code Ann. § 14.005; Tex. Gov’t Code Ann. § 501.008 (inmate grievance
system).

      Enriquez does not dispute that his action is subject to chapter 14 governing


                                          13
inmate litigation.9 Rather, in his third issue, he contends that his claims against
Orihuela are not subject to section 14.005’s requirements regarding exhaustion of
administrative remedies pursuant to the grievance system under Government Code
section 501.008 because Orihuela was employed by UTMB, not TDCJ. 10 Enriquez
contends the “statute in question here is clear and unambiguous” that the “remedy
provided by the grievance system is the exclusive administrative remedy available
to an inmate for a claim for relief against the department.” Therefore, the Galveston
County district court did not have discretion to dismiss Enriquez’s claims against
Orihuela with prejudice on this basis. We agree.

      Our resolution of this issue involves statutory construction, which is a
question of law we review de novo. See State ex rel. State Dep’t of Highways & Pub.
Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). When interpreting a statute,
our goal is to ascertain the legislature’s intent. Id.; see Tex. Gov’t Code Ann.
§ 312.005. The best guide to that determination is usually the plain language of the
statute. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.
1999). We must view the statute as a whole, and we must endeavor to read the statute
contextually and give effect to every word, clause, and sentence. Id. at 866; Tex.
Dep’t of Ins. v. Am. Nat’l Ins. Co., 410 S.W.3d 843, 853 (Tex. 2012). We read the
words and phrases in context and construe them according to the rules of grammar
and common usage. See Code Construction Act, Tex. Gov’t Code Ann.
§ 311.011(a).

      Section 14.005, entitled “Grievance System Decision; Exhaustion of
Administrative Remedies,” provides:

      (a) An inmate who files a claim that is subject to the grievance system

      9
          Although Enriquez disputed this point below, he does not do so on appeal.
      10
           Enriquez raised this argument in his motion to vacate judgment.

                                                14
      established under Section 501.008, Government Code, shall file with
      the court:
            (1) an affidavit or unsworn declaration stating the date that the
            grievance was filed and the date the written decision described
            by Section 501.008(d), Government Code, was received by the
            inmate; and
            (2) a copy of the written decision from the grievance system.
      (b) A court shall dismiss a claim if the inmate fails to file the claim
      before the 31st day after the date the inmate receives the written
      decision from the grievance system.

Tex. Civ. Prac. & Rem. Code Ann. § 14.005.

      In pertinent part, Government Code section 501.008, entitled “Inmate
Grievance System,” provides:

      The department shall develop and maintain a system for the resolution
      of grievances by inmates housed in facilities operated by the
      department or under contract with the department . . . . A remedy
      provided by the grievance system is the exclusive administrative
      remedy available to an inmate for a claim for relief against the
      department that arises while the inmate is housed in a facility operated
      by the department or under contract with the department, other than a
      remedy provided by writ of habeas corpus challenging the validity of
      an action occurring before the delivery of the inmate to the department
      or to a facility operated under contract with the department.
Tex. Gov’t Code Ann. § 501.008(a).

      Under applicable Government Code subtitle G, the definition of “department”
as used in section 501.008 is “the Texas Department of Criminal Justice.” Tex. Gov’t
Code Ann. § 491.001(a)(3); see also Tex. Civ. Prac. & Rem. Code Ann. § 14.001(2)
(providing same definition).

      When read in conjunction, the statutory language clearly and unambiguously
indicates the section-501.008 grievance system providing for an exclusive
administrative remedy that inmates must exhaust and show compliance with under
                                        15
section 14.005 applies when an inmate is pursuing a “claim for relief against the
department that arises while the inmate is housed in a facility operated by the
department or under contract with the department.” Tex. Civ. Prac. & Rem. Code
Ann. § 14.005; Tex. Gov’t Code Ann. 501.008(a) (emphasis added); see Leachman
v. Dretke, 261 S.W.3d 297, 312 (Tex. App.—Fort Worth 2008, no pet.) (op. on
reh’g) (section 14.005’s administrative exhaustion requirement did not apply to
inmate’s claims against non-TDCJ employee). Interpreting section 14.005’s
requirement to exhaust the exclusive administrative remedies available under the
grievance system (developed and maintained by TDCJ) as applying only when an
inmate seeks a claim for relief against TDCJ comports with and gives effect to the
plain language of the statutory scheme and does not lead to an absurd result.

       The claims at issue involve Enriquez’s claims against Orihuela, an employee
of UTMB, not of TDCJ.11 Enriquez did not allege and Orihuela does not contend
that Orihuela is employed by TDCJ. Orihuela averred that he is employed by UTMB.
Because Enriquez’s claims against Orihuela do not seek relief against TDCJ, they
were not subject to the grievance system established under section 501.008, and
accordingly are not subject to section 14.005’s requirement to exhaust administrative
remedies.

       Orihuela attempts to rely on Retzlaff and Gilbert v. Texas Department of
Criminal Justice-Institutional Division, No. 09-16-00298-CV, 2017 WL 3975687
(Tex. App.—Beaumont Aug. 31, 2017, no pet.) (mem. op.). Retzlaff and Gilbert,
however, involved claims brought by plaintiff inmates against TDCJ or its

       11
         Texas courts have agreed that the exhaustion requirement applies in inmate cases brought
against employees of TDCJ. Compare Jedkins v. Varghese, No. 14-08-00895-CV, 2009 WL
5149877, at *2 (Tex. App.—Houston [14th Dist.] Dec. 31, 2009, no pet.) (per curiam) (mem. op.)
(“Inmate complaints about actions of TDCJ employees are subject to the grievance procedure.”),
with Leachman, 261 S.W.3d at 312 (“[B]ecause [Harris County assistant district attorney] Oncken
was not a TDCJ employee, the exhaustion requirement addressed above does not apply.”).

                                               16
employees. Gilbert, 2017 WL 3975687, at *1, 3–4; Retzlaff, 94 S.W.3d at 651–53.
Here, the only claims at issue are against Orihuela, not TDCJ or any employee of
TDCJ.

       We also reject Orihuela’s argument that section 14.005 applies because
UTMB is “a facility operated under a contact with the TDCJ to provide correctional
managed health care services.” Even assuming this were the case,12 section 501.008
clearly and unambiguously states that the administrative remedy provided by the
grievance system is exclusive when the inmate is pursuing a claim for relief “against
the department,” not against a party with which TDCJ may choose to contract. See
Tex. Civ. Prac. & Rem. Code Ann. § 501.008(a) (emphasis added).

       We conclude that the district court abused its discretion by dismissing
Enriquez’s suit against Orihuela with prejudice based on noncompliance with
section 14.005. Accordingly, we sustain Enriquez’s third issue.

       2. TTCA section 101.106(f)

       Although the Galveston County district court’s order stated that it was
dismissing Enriquez’s suit against Orihuela for noncompliance with section 14.005,
we also consider Orihuela’s other ground for dismissal under TTCA section
101.106(f). See Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990) (per
curiam) (appellate court should affirm dismissal if proper under any legal theory);
see also Guar. Cty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per
curiam) (well-settled rule is appellate court will affirm decision of trial court on any
legal theory supported by evidence, regardless of whether trial court gives correct
legal reason or any reason at all).

       12
           In his response to Enriquez’s motion to vacate, Orihuela cited a webpage based on a
UTMB contract search, which on review appears to now be subject to linkrot. Orihuela did not
offer this contract as an exhibit in the trial court.

                                             17
      The TTCA provides a limited waiver of immunity from suit and liability for
certain tort claims against a governmental unit. TTCA, Tex. Civ. Prac. & Rem. Code
Ann. §§ 101.001–.109. The TTCA includes a comprehensive election-of-remedies
provision in section 101.106. See id. § 101.106.

      A motion to dismiss filed by an employee pursuant to section 101.106(f)
essentially acts as a challenge to the trial court’s subject-matter jurisdiction, which
we review de novo. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011)
(in seeking dismissal under section 101.106(f), defendant is asserting claim of
governmental immunity); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 221, 227–28 (Tex. 2004) (when appellate court reviews appeal of denial of
jurisdictional plea asserting sovereign immunity, and evidence was presented to trial
court, appellate court addresses de novo whether evidence raises material issue of
fact); Moore v. Barker, No. 14-17-00065-CV, 2017 WL 4017747, at *2 (Tex.
App.—Houston [14th Dist.] Sept. 12, 2017, no pet.) (mem. op.).

      Section 101.106(f) provides:

      (f) 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.

TTCA § 101.106(f).

      In his motion to dismiss, Orihuela argued that Enriquez’s “healthcare liability
claim against . . . Orihuela must be dismissed . . . because [he] meets the three
(3) criteria for dismissal under section 101.106(f).” That is, (1) Orihuela was an

                                          18
employee of UTMB at the time he saw Enriquez as a patient; (2) Enriquez’s
healthcare liability claim against Orihuela alleged negligent conduct “within the
general scope” of his employment as a physician at UTMB; and (3) Enriquez’s
healthcare liability claim against Orihuela could have been brought against his
employer UTMB.

      As to the first prong, there is no dispute that UTMB is a governmental unit of
the state of Texas. See Tex. Educ. Code Ann. §§ 65.02(a)(8), 74.001; Lowe v. Texas
Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). There is also no dispute that Orihuela
was employed by UTMB at the time of the conduct at issue.

      With regard to the second prong, Orihuela argued Enriquez alleged that his
care was negligent and breached the duty of care by failing to diagnose and treat
Enriquez’s kidney, prostate, and anemia issues. Orihuela specifically referenced
Enriquez’s negligence claim. According to Orihuela, the allegations encompass
conduct performed within the general scope of Orihuela’s employment.

      With regard to the third prong, Orihuela contended that “any tort theory
alleged against a governmental employee, who was acting in the general course and
scope of [his] employment with the governmental unit at the time of the alleged
negligent conduct, must be dismissed pursuant to [TTCA] § 101.106(f)” because it
could have been brought under the TTCA against UTMB.

      Both below and on appeal, Enriquez argues that the TTCA does not apply and
the district court erred to the extent it relied on the TTCA in dismissing his case. He
notes his suit included claims against Orihuela (1) under title 42, United States Code,
section 1983, based on multiple instances of deliberate indifference to Enriquez’s
serious medical needs that violated his Eighth Amendment right to be free from cruel




                                          19
and unusual punishment13 and (2) requesting prospective equitable relief to remedy
violations of article I, section 19, of the Texas Constitution.14 He also contends that
the TTCA does not apply to Orihuela’s “ultra virus [sic]” acts in refusing to treat
Enriquez.

       On appeal, Orihuela argues that the Galveston County district court did not
base its dismissal on section 101.106 and Enriquez can present no “error of law”
under Rule of Appellate Procedure 44.1. But we already have concluded that the
district court erred in basing its dismissal of Enriquez’s claims against Orihuela on
section 14.005.

       We disagree with Enriquez that section 101.106(f) has no application here.
Enriquez pleaded claims of negligence against, and sought exemplary damages
based on gross negligence, malice, or fraud from Orihuela for conduct that occurred
while he was providing Enriquez medical treatment at John Sealy within the general
scope of his employment for UTMB. These tort claims “could have been brought”
under the TTCA against UTMB. See TTCA § 101.106(f); Franka, 332 S.W.3d at
369, 375–85 (for purposes of section 101.106(f), tort action “could have been
brought under” TTCA even if tort action does not fall within TTCA’s limited waiver
of immunity); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659
(Tex. 2008) (“Because the Tort Claims Act is the only, albeit limited, avenue for

       13
           See 42 U.S.C.A. § 1983 (West 2012) (“Every person who, under color of any statute,
ordinance, or regulation, custom, or usage, of any state . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .”); Estelle v. Getty, 429 U.S. 97, 104 (1976) (deliberate
indifference to serious medical needs of prisoners constitutes unnecessary and wanton infliction
of pain proscribed by Eighth Amendment).
       14
           See Tex. Const. art. I, § 19 (“No citizen of this State shall be deprived of life, liberty,
property, privileges or immunities, or in any manner disfranchised, except by the due course of the
law of the land.”); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (explaining
that “suits for equitable remedies for violation of [Texas] constitutional rights are not prohibited”).

                                                  20
common-law recovery against the government, all tort theories alleged against a
governmental unit, whether it is sued alone or together with its employees, are
assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”). In
addition, based on our review of Enriquez’s petition, he did not allege that Orihuela
acted ultra vires, i.e., without any legal authority or by failing to perform a purely
ministerial act. See Franka, 332 S.W.3d at 382 & n.69 (citing City of El Paso v.
Heinrich, 284 S.W.3d 366, 373 (Tex. 2009)). Therefore, with regard to Enriquez’s
common-law tort claims against Orihuela, the Galveston County district court did
not err in dismissing those claims with prejudice.

      However, Orihuela did and does not dispute that Enriquez also brought
additional claims against Orihuela individually under section 1983 and for
prospective equitable relief for Texas constitutional violations, or specially except
to such claims. Orihuela only addressed Enriquez’s “healthcare liability claim”
against him in his motion to dismiss based on section 101.106(f). And on appeal,
Orihuela addresses “Enriquez’s common law tort theories,” that is, “damage claims
that would be within the scope of the” TTCA.

      “A federal statutory claim brought under 42 U.S.C. § 1983 . . . , however, is
not a suit ‘under this chapter.’” Fontenot v. Stinson, 369 S.W.3d 268, 272–73 & n.5
(Tex. App.—Houston [14th Dist.] 2011), aff’d, Stinson v. Fontenot, 435 S.W.3d 793
(Tex. 2014) (construing phrase “under this chapter” as used in TTCA section
101.106). In addition, the parties do not provide and we have not located any
authority indicating that claims for prospective equitable relief to remedy Texas
constitutional violations qualify as common-law tort claims that could be brought
under the TTCA. Therefore, we conclude that the district court could not have
properly dismissed with prejudice pursuant to section 101.106(f) Enriquez’s
section-1983 claims based on Eighth Amendment violations and his claims for

                                         21
prospective equitable relief to remedy Texas constitutional violations against
Orihuela. See Hamilton v. Pechacek, No. 02-12-00383-CV, 2014 WL 1096018, at
*4–5 (Tex. App.—Fort Worth Mar. 20, 2014, no pet.) (mem. op.) (trial court erred
in dismissing inmate plaintiff’s section-1983 excessive-force claim against TDCJ
correctional officer based on section 101.106(f)).

       We partially sustain Enriquez’s second issue.15

                                     III.   CONCLUSION

       Accordingly, we affirm in part and reverse in part the Galveston County
district court’s judgment. We affirm the dismissal with prejudice of Enriquez’s tort
claims against Orihuela, reverse the dismissal with prejudice of Enriquez’s
section-1983 claims and claims for prospective equitable relief against Orihuela, and
remand the case for additional proceedings.




                                             /s/    Charles A. Spain
                                                    Justice



Panel consists of Justices Wise, Zimmerer, and Spain.




       15
           We express no opinion on whether Enriquez’s section-1983 claims and claims for
prospective equitable relief against Orihuela have any legal or factual merit. We conclude only
that section 101.106(f), relied on by Orihuela as the basis for the dismissal of this suit, cannot
support dismissal of these claims. See Hamilton, 2014 WL 1096018, at *5 n.8.

                                               22
