                             MEMORANDUM OPINION
                                    No. 04-10-00583-CV

                                  Aaron ROSSETT, F.N.P.,
                                         Appellant

                                               v.

                            Gregory WILSON and Anne Wilson,
                                       Appellees

                                    No. 04-10-00597-CV

   Andrea CARPENTER, M.D., Edward Sako, M.D., Lillian Liao, M.D., Ajay Gupta, M.D.,
                   Travis Kern, M.D. and David Cooper, M.D.,
                                  Appellants

                                               v.

                            Gregory WILSON and Anne Wilson,
                                       Appellees

                 From the 131st Judicial District Court, Bexar County, Texas
                              Trial Court No. 2010-CI-06592
                         Honorable Gloria Saldaña, Judge Presiding

Opinion by:   Karen Angelini, Justice

Sitting:      Catherine Stone, Chief Justice
              Karen Angelini, Justice
              Sandee Bryan Marion, Justice

Delivered and Filed: May 11, 2011

REVERSED AND REMANDED
                                                                         04-10-00583-CV & 04-10-00597-CV


        This is an accelerated appeal from orders denying pleas to the jurisdiction/motions to

dismiss predicated on section 101.106(f) of the Texas Tort Claims Act. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.106(f) (West 2005). We reverse and remand these causes to the trial

court to address arguments that section 101.106(f) violates the open courts provision of the

Texas Constitution and is unconstitutional.

                                              BACKGROUND

        Physicians Andrea Carpenter, Edward Sako, Lillian Liao, Ajay Gupta, David Cooper, and

Travis Kern (collectively, “Carpenter” 1), and nurse practitioner Aaron Rossett were sued by

Gregory and Anne Wilson for medical negligence. According to the allegations in the Wilsons’

petition, Gregory was under the care of the aforementioned physicians and nurse practitioner at

University Hospital when he became hemodynamically unstable and, as a result of an inadequate

supply of blood and oxygen, suffered injuries to his spinal cord and colon. The Wilsons alleged

that Carpenter’s and Rossett’s failure to investigate, identify, diagnose, and timely correct the

underlying cause of Gregory’s hemodynamic instability resulted in his injuries. The Wilsons did

not allege, however, that Gregory’s injuries were caused by the use or condition of tangible

personal or real property, or by the operation or use of a motor-driven vehicle or motor-driven

equipment.

        Carpenter and Rossett moved to dismiss the Wilsons’ suit pursuant to section 101.106(f)

of the Texas Tort Claims Act, which 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

1
  Lio, Cooper, Gupta, and Kern were residents at the University of Texas Health Science Center at San Antonio
(UTHSCSA) under the supervision of Carpenter and Sako, who were faculty members at UTHSCSA.

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       governmental unit as defendant on or before the 30th day after the date the motion
       is filed.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2005). Carpenter and Rossett

established by affidavits that they were employed by a governmental unit, namely, the University

of Texas Health Science Center at San Antonio (UTHSCSA), and that they acted in the course

and scope of their employment in treating Wilson. In their written response, the Wilsons stated

they were not contesting that Carpenter and Rossett were employees of UTHSCSA, and that they

acted in the course and scope of their employment in treating Gregory. Thirty days elapsed, but

the Wilsons did not amend their petition to delete Carpenter and Rossett and name UTHSCSA as

a defendant.

       The trial court held a hearing on the pleas to the jurisdiction/motions to dismiss. At the

hearing, the only question presented was whether Carpenter and Rossett established that the

Wilsons’ suit could have been brought against UTHSCSA. The trial court denied Carpenter’s

and Rossett’s pleas to the jurisdiction/motions to dismiss, and Carpenter and Rossett appealed.

                                           DISCUSSION

       The primary issue presented in this appeal is whether parties seeking a dismissal of a

claim under section 101.106(f) must establish that the claim could have been brought against the

governmental employer based on one of the limited waivers of sovereign immunity specified in

the Texas Tort Claims Act. Section 101.021, which enumerates the Act’s limited waivers of

sovereign immunity, provides,

       A governmental unit in the state is liable for:

       (1) property damage, personal injury, and death proximately caused by the
           wrongful act or omission or the negligence of an employee acting within his
           scope of employment if:




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              (A) the property damage, personal injury, or death arises from the operation
                  or use of a motor-driven vehicle or motor-driven equipment; and

              (B) the employee would be personally liable to the claimant according to
                  Texas law; and

         (2) personal injury and death so caused by a condition or use of tangible personal
             or real property if the governmental unit would, were it a private person, be
             liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (West 2005).

         Carpenter and Rossett assert that the trial court erred in denying their pleas to the

jurisdiction/motions to dismiss because they conclusively established that the Wilsons’ suit could

have been brought under the Texas Tort Claims Act against their governmental employer

UTHSCSA. Carpenter and Rossett rely on Mission Consol. Indep. Sch. Dist. v. Garcia which

stated that “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.” 253 S.W.3d 653, 658 (Tex. 2008) (quotation omitted). Carpenter and Rossett

acknowledge that Mission was decided in the context of a dismissal sought under section

101.106(e), but argue that Mission’s reasoning applies equally to dismissals sought under section

101.106(f). 2

         In response, the Wilsons assert the trial court correctly denied the pleas to the

jurisdiction/motions to dismiss because Carpenter and Rossett were required to establish that the

Wilsons’ causes of action fell within one of the limited waivers of immunity under section

101.021. In other words, the Wilsons contend that because the injuries alleged in their petition

were not caused by the use or condition of tangible personal or real property, Carpenter and


2
  Section 101.106(e) provides that “[i]f 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) (West 2005).


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Rossett did not—and could not—establish that suit could have been brought against UTHSCSA.

The Wilsons further contend that because they could not assert their claims against UTHSCSA

under the Texas Tort Claims Act’s waiver provisions, they were free to pursue common law

negligence claims against Carpenter and Rossett, who remain individually liable for their

conduct.

          After Carpenter’s and Rossett’s appeals were briefed, the Texas Supreme Court issued its

opinion in Franka v. Velasquez, holding that for purposes of section 101.106(f) a tort action is

brought “under” the Texas Tort Claims Act, regardless of whether the Act waives immunity for

such actions. 332 S.W.3d 367, 375 (Tex. 2011). In Franka, the Texas Supreme Court, further

stated,

          Properly construed, section 101.106(f)’s two conditions are met in almost every
          negligence suit against a government employee: he acted within the general scope
          of his employment and suit could have been brought under the Act—that is, his
          claim is in tort and not under another statute that independently waives immunity.
          In such cases, the suit “is considered to be against the employee in the employee’s
          official capacity only”, and the plaintiff must promptly dismiss the employee and
          sue the government instead . . . . The immunity issue need not be determined until
          the governmental unit is in the suit and the issue can be fully addressed.

                  This construction of section 101.106(f) does, however, foreclose suit
          against a government employee in his individual capacity if he was acting within
          the scope of employment. This changes, among other things, the rule in Kassen v.
          Hatley, which has allowed malpractice suits against physicians employed by the
          government, even though acting within the scope of employment. Recovery for
          the negligence of a government physician acting in the course of employment
          would be limited to that afforded under the Act.

Id. at 381 (citations omitted).

          In light of the Texas Supreme Court’s holding in Franka, we conclude the Wilsons’

medical negligence claims were brought under the Texas Tort Claims Act. See id. at 385.

          The Wilsons further assert section 101.106(f) violates the open courts provision of the

Texas Constitution and is unconstitutional. See TEX. CONST. art. I, § 13. Article I, section 13

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guarantees that “[a]ll courts shall be open, and every person for an injury done him, in his lands,

goods, person or reputation, shall have remedy by due course of law.” Id. When reviewing the

constitutionality of a statute, courts begin with a legal presumption that the statute is

constitutional. TEX. GOV’T CODE ANN. § 311.021(1) (West 2005). To establish an open courts

violation, “the litigant must: (1) have a cognizable common-law cause of action that is being

restricted; and (2) show that the restriction is unreasonable or arbitrary when balanced against the

statute’s purpose.” Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887, 902-903

(Tex. 2000); Bailey v. Sanders, 261 S.W.3d 153, 158-59 (Tex. App.—San Antonio 2008), aff’d,

332 S.W.3d 395 (Tex. 2011). A litigant must demonstrate both elements to successfully establish

an open courts violation. See Bailey, 261 S.W.3d at 159 (concluding appellants failed to

overcome presumption of constitutionality when they failed to make any argument as to the

second element). Moreover, a litigant must raise an open courts challenge in the trial court before

it can be raised on appeal. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002).

        Here, the Wilsons argued in the trial court that the interpretation of section 101.106(f)

urged by Carpenter and Rossett, and later adopted in Franka, would violate the open courts

provision of the Texas Constitution. However, given the procedural posture of the case, it

appears the trial court never reached this argument. We, therefore, remand these causes to the

trial court to address the constitutionality of the statute. 3 Absent a ruling that the statute is



3
 Although no open courts challenge was made in Franka, the Texas Supreme Court did express the following in its
opinion:

                 House Bill 4’s revision of section 101.106 achieves the same end under Texas law as the
        Westfall Act [which provided immunity to all employees acting within the scope of employment]
        does under federal law. As it affects government-employed physicians, it is generally consistent
        with the Legislature’s concerns regarding health care costs, also expressed in the bill. We
        recognize that the Open Courts provision of the Texas Constitution prohibits the Legislature from
        unreasonably abrogating well-established common-law claims, but restrictions on government
        employee liability have always been part of the tradeoff for the Act’s waiver of immunity,

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unconstitutional, the trial court is required to grant Carpenter’s and Rossett’s pleas to the

jurisdiction/motions to dismiss under section 101.106(f).

                                                CONCLUSION

        The orders denying Carpenter’s and Rossett’s pleas to the jurisdiction/motions to dismiss

are reversed, and these causes are remanded to the trial court for proceedings consistent with this

opinion.

                                                                     Karen Angelini, Justice




        expanding the government’s own liability for its employees’ conduct, and thus a reasonable
        exercise of the police power in the interest of the general welfare.

Franka v. Velasquez, 332 S.W.3d 367, 385 (Tex. 2011)(citations and quotations omitted).

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