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. PH.D., 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


                          DISSENTING OPINION

     I respectfully dissent. I disagree with the majority’s refusal to dismiss

appellee Tomas G. Rios’s suit against appellants Bella Patel, M.D., F.C.C.P.,
Richard W. Smalling, M.D., Ph.D., Rachshunda Majid, M.D., and Francisco

Fuentes, M.D. (the “Physician Defendants”), employees of appellant the University

of Texas Health Science Center at Houston (“UTHSC”), on sovereign immunity

grounds. I would dismiss this suit under the election of remedies provision of the

Texas Tort Claims Act (“TTCA”), Texas Civil Practice and Remedies Code section

101.106(e), which provides, “If a suit is filed under [the Tort Claims Act] 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) (Vernon 2011).

        The majority holds that UTHSC failed to produce evidence of the

jurisdictional fact that the Physician Defendants were employees of UTHSC, an

undisputed governmental entity, and affirms the trial court’s denial of UTHSC’s

motion to dismiss the Physician Defendants. It does not address the central issue on

appeal—whether the trial court erred in permitting Rios to amend his Original

Petition and thereby avoid dismissal of his claims against the Physician Defendants

under section 101.106(e). I disagree with the decision of the majority to decide this

case on an evidentiary issue not raised in the trial court—and refuted by the

jurisdictional pleadings and evidence—and to ignore the critical central issue in the

case.




                                         2
      In his Original Petition, Rios sued UTHSC and the Physician Defendants for

torts he alleged UTHSC committed through the Physician Defendants. He also

asserted a contract claim against UTHSC. While UTHSC’s motion to dismiss the

Physician Defendants under the election of remedies provisions in section 101.106

was pending, Rios amended his pleadings. He retained his contract claim against

UTHSC in his Amended Petition, but he dropped his tort claims against UTHSC

while retaining the same tort claims he had alleged against the Physician Defendants

in his Original Petition. He also added a claim under Title 42, section 1983 of the

United States Code against the Physician Defendants based on the exact same

allegedly tortious acts of those defendants.

      In my view, the majority improperly diverts this case away from the critical

legal issue pled by UTHSC on appeal and follows a red herring by holding that

UTHSC had the burden of proving that the Physician Defendants were its employees

and affirming the case on this ground. It thus ignores the central issue in this case—

whether Rios had the right to amend his pleadings as he did and thereby to avoid

dismissal of his suit against the Physician Defendants. I would first respond to the

majority’s holdings on its merits. I would hold that the majority’s conclusion that

UTHSC had the burden of proving that the Physician Defendants were its employees

in order to obtain dismissal of the Physician Defendants under section 101.106(e) of

the Tort Claims Act is incorrect under the facts of this case, where the pleadings of



                                          3
both parties characterized the Physician Defendants as employees of UTHSC, the

status of these defendants as employees of UTHSC was uncontested by either party

in the trial court, and UTHSC nevertheless produced evidence showing that the

Physician Defendants were its faculty members in the same Program that employed

Rios.

        I would then address UTHSC’s central issue on appeal, and I would hold that

the trial court erred by allowing Rios to maintain his claims against the Physician

Defendants in his Amended Petition. I would hold that Rios was barred by the plain

language of section 101.106(a) from amending his pleadings as he did and that his

suit against the Physician Defendants must be dismissed under the election of

remedies provision in section 101.106(e). I would, therefore, reverse the judgment

of the trial court denying UTHSC’s motion to dismiss Rios’s suit against the

Physician Defendants under section 101.106(e) for lack of subject-matter

jurisdiction. And I would dismiss Rios’s suit against the Physician Defendants with

prejudice.

                              Texas Tort Claims Act

        In their sole issue, UTHSC and the Physician Defendants argue that the trial

court was compelled to dismiss the Physician Defendants from the suit under section

101.106(e) of the Tort Claims Act.




                                          4
A.    Dismissal for Lack of Subject Matter Jurisdiction Under Section
      101.106(e)

      Section 101.106 provides, in relevant part,

      (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.
      (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 . . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (e), (f) (emphasis added).

      A motion to dismiss under section 101.106 raises the issue of sovereign

immunity. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating

that Section 101.106 confers immunity in some instances on employees of

governmental units); Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.—Houston

[1st Dist.] 2015, no pet.) (same). “Sovereign immunity from suit defeats a trial

court’s subject-matter jurisdiction and thus 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); Fink, 477 S.W.3d at 465 (noting that although we generally review



                                         5
order on motion to dismiss for abuse of discretion, proper standard of review is

determined by substance of issue to be reviewed, not caption of motion). Whether

the court has subject-matter jurisdiction is a question of law that we review de novo.

Miranda, 133 S.W.3d at 226; Fink, 477 S.W.3d at 465.

      We may not presume subject-matter jurisdiction; rather, “the burden is on the

plaintiff[] to allege facts affirmatively demonstrating the trial court’s subject-matter

jurisdiction over the case.” Fink, 477 S.W.3d at 465 (emphasis added). “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. . . . If the pleadings affirmatively negate the existence of jurisdiction, then a

plea to the jurisdiction may be granted without allowing the plaintiff[] an opportunity

to amend.” Miranda, 133 S.W.3d at 226–27; Tex. Ass’n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 446 (Tex. 1993). “However, if a plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence

submitted by the parties when necessary to resolve the jurisdictional issues raised.”

Miranda, 133 S.W.3d at 227.

      1.     Rios’s Claim that UTHSC Had the Burden to Prove the Physician
             Defendants Were Its Employees to Obtain Their Dismissal Under
             Section 101.106(e) of the Tort Claims Act

      UTHSC and the Physician Defendants argue that the trial court erred in

refusing to grant UTHSC’s motion seeking dismissal of its employees, the Physician



                                           6
Defendants, under section 101.106 of the Tort Claims Act. In response, Rios claims

that there are “genuine issues of material fact concerning whether the Doctor

Defendants are ‘employees’ under section 101.001(5) and covered under section

101.106(e),” and therefore there is a genuine fact issue as to whether the Tort Claims

Act applies to his claims against them. If the Act applies, Rios asks whether the trial

court properly denied UTHSC’s Amended Plea to the Jurisdiction. He states,

“Appellants have proffered no evidence to both the appellate and trial court to prove

that the Doctor Defendants were actually employed by UT Health at the time that

Appellee’s claims arose, and not independent contractors.” He contends, “If the

Doctor Defendants were not employees of a government unit, Texas Civil Practice

and Remedies Code § 101.106 is not applicable.” This entire argument is a red

herring.

      At no point in the trial court did Rios allege in his pleadings that the Physician

Defendants were not employees of UTHSC or plead that they were independent

contractors.   In his Original Petition, Rios alleged that UTHSC breached its

employment contract with him. He further pled that UTHSC “separately, and

through Dr. Smalling, Dr. Majid, and Dr. Patel willfully and intentionally interfered

with [his] contract by making false statements about Dr. Rios”; that UTHSC

“separately, and through Dr. Smalling, Dr. Majid, Dr. Patel, and Dr. Fuentes

individually, intentionally interfered with [his] relationship by submitting false



                                           7
information to the Texas Medical Board”; and “Defendants published a statement of

fact to the Texas Medical Board on or about June 23, 2014.” (Emphasis added.)

      UTHSC immediately filed a Plea to the Jurisdiction and Motion to Dismiss

the Physician Defendants under section 101.106(e). But, before the trial court ruled

on UTHSC’s motion, Rios filed a First Amended Petition. In that Amended Petition,

Rios dropped his claim that UTHSC had committed torts against him through the

Physician Defendants. Instead, he pled that “UT Health Science Center is a local

government entity under section 276.112 of the Texas Local Government Code,”

and he reasserted his contract claim against UTHSC. He made the exact same

factual allegations supporting the exact same tort claims against the Physician

Defendants that he had alleged in his Original Petition, claiming that the Physician

Defendants had committed torts against him by publishing a defamatory statement

of fact about him to the Texas Medical Board and by making false statements that

led to his employment contract’s termination. And he added federal section 1983

claims against the Physician Defendants on the exact same basis.

      UTHSC responded to Rios’s Original Petition with an Amended Plea to the

Jurisdiction and Motion to Dismiss filed on behalf of itself and the Physician

Defendants. In it, UTHSC identified the Physician Defendants as members of its

faculty and its Program Director for the Cardiovascular Disease Training program

to which Rios had been appointed for a one-year term that was not renewed,



                                         8
prompting his suit against his employer—UTHSC.              UTHSC identified the

University of Texas System Medical Foundation, the administrator of the UTHealth

Training Programs for all University of Texas health systems, as both Rios’s and the

Physician Defendants’ direct employer. In addition, it produced as an exhibit Rios’s

employment termination notice from UTHSC dated April 29, 2014. This exhibit is

a letter on UTHSC Medical School Department of Internal Medicine Division of

Cardiology and Hyperbaric Medicine letterhead addressed to Rios signed by

Physician Defendant Francisco Fuentes, M.D., Program Director; and it expressly

refers to Rios’s deficiencies in participating in the Cardiovascular Diseases

Fellowship Training Program. These statements included expressions of concern

regarding Rios’s progress in the program received from Physician Defendants Drs.

Smalling and Patel.

      Rios did not challenge in the trial court any of the jurisdictional allegations

and exhibits showing that the Physician Defendants were all members of the UTHSC

faculty and that they all made the representations evaluating Rios’s performance

about which he complains in their capacity as faculty members and as Director of

the Program that employed him and failed to renew his contract at UTHSC. Only in

his response to UTHSC’s Amended Motion to Dismiss, filed in response to Rios’s

Amended Petition, did Rios raise the question of whether the Physician Defendants

were really UTHSC employees, without challenging either UTHSC’s pleadings or



                                         9
its evidence. He merely stated, “Assuming arguendo that the Doctor Defendants are

employees of UT Health (since discovery may reveal a contractor status), the inquiry

then moves toward whether the Doctor Defendants were acting within the scope of

their employment.” At no point did Rios allege as a jurisdictional fact that the

Physician Defendants were not employees of UTHSC. And, indeed, not only would

any such allegation contradict the legal basis of his own pleadings, it would also

contradict UTHSC’s allegations (and evidence) that UTHSC is a governmental

entity and that the torts of which Rios complains were alleged torts of the Physician

Defendants acting as Program Director and faculty members of the UTHSC program

by which he too was employed.

      Only in his appellate brief did Rios specifically assert that UTHSC had the

burden of proving in the trial court that the Physician Defendants were its

employees. He ignored the fact that the plaintiff—not the defendant—has the burden

of alleging facts in the trial court sufficient to procure jurisdiction and that the only

facts either he or UTHSC alleged in the trial court asserted jurisdiction over the

Physician Defendants under the Tort Claims Act, which applies only to

governmental entities and their employees. See Miranda, 133 S.W.3d at 224; Fink,

477 S.W.3d at 465 (burden is on plaintiff to allege facts affirmatively demonstrating

trial court’s subject-matter jurisdiction over case). In his Amended Petition, Rios

did add a claim against the Physician Defendants under 42 U.S.C. section 1983.



                                           10
However, section 1983 applies only to governmental actors acting under color of

state law. See 42 U.S.C.A. § 1983; Lugar v. Edmondson Oil Co., 457 U.S. 922, 929,

102 S. Ct. 2744, 2749 (1982) (“[I]n a § 1983 action brought against a state official,

the statutory requirement of action ‘under color of state law’ and the ‘state action’

requirement of the Fourteenth Amendment are identical.”). And Rios himself had

pled that UTHSC was a governmental entity. Rios could not both bring his section

1983 claims against the Physician Defendants as state actors and simultaneously

allege that they were not employees of the governmental entity he had sued.

      Moreover, Rios made no factual allegation until his appellate brief that the

Physician Defendants were independent contractors and that UTHSC was required

to produce evidence in the trial court to show that they were its employees. Nor, of

course, did he provide any evidentiary support for his claim—which contradicted

UTHSC’s evidence in the trial court as well as both parties’ pleadings in that court.

Rios’s factually incorrect claim that UTHSC failed to produce evidence that the

Physician Defendants were its employees could not properly be alleged for the first

time at the appellate level, as it would require UTHSC to have produced evidence

on a non-issue in the trial court—whether the Physician Defendants were or were

not employees of a governmental entity, UTHSC. See Miranda, 133 S.W.3d at 227

(“[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we




                                         11
consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised . . . .”) (emphasis added).

      The majority, however, disregards both the pleadings and the evidence that

the Physician Defendants were employees of UTHSC, as Rios himself was. It holds,

nevertheless, that a section 101.106(e) defendant must produce evidentiary proof of

the unchallenged jurisdictional facts alleged by both sides in the trial court

demonstrating that the Physician Defendants were employees of UTHSC to be

entitled to dismissal of those employees from Rios’s suit under section 101.106(e).

It observes that “[t]he Texas Supreme Court 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.” Slip Op. at 6 (citing Lubbock

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

305 (Tex. 2014), and Fink, 447 S.W.3d at 465–66 (applying subsection 101.106(f)).

That is true, but irrelevant, as it is undisputed that UTHSC is a governmental entity,

and Rios expressly pled that it was.

      What Miranda actually says is that “[w]hen 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.” Miranda, 133

S.W.3d at 226. “However, if a plea to the jurisdiction challenges the existence of

jurisdictional facts, we consider relevant evidence submitted by the parties when



                                           12
necessary to resolve the jurisdictional issues raised.” Id. at 227 (emphasis added).

Here, UTHSC did not have to challenge the jurisdictional facts set out by Rios, as

Rios plainly filed his tort suit against a governmental unit and its employees—the

jurisdictional facts necessary to bring the case within the subject-matter jurisdiction

of the district court under the Tort Claims Act.

      The cases cited by the majority do not hold to the contrary. Lubbock County

Water Control, relied upon by the majority, deals with an entirely different set of

circumstances, namely those in which a plaintiff sues a governmental entity in

contract and seeks waiver of immunity for a suit in contract. This issue is irrelevant

to whether the Tort Claims Act waived immunity to Rios’s tort claims alleged

against the Physician Defendants. Lubbock County Water Control was not a tort

case, like the instant case, for which waiver of governmental immunity must be

found in the Tort Claims Act. It was a suit brought against the Lubbock County

Water Control and Improvement District, an undisputed governmental entity, under

Local Government Code section 271.151, which provides a limited waiver of

immunity of its own for local governmental entities that enter into certain contracts.

Lubbock Cty. Water Control, 442 S.W.3d at 300, 305. And, in Lubbock County

Water Control the jurisdictional facts necessary to provide waiver of immunity,

hence to bring the suit within the jurisdiction of the district court, were in dispute.




                                           13
      As the Texas Supreme Court stated in Lubbock County Water Control, the

principal issue on appeal was “whether the parties’ contract includes an ‘agreement

for providing goods or services to the [Water District].’”         Id. at 301.    The

determination whether the contract was of a type that would entitle the Water District

to governmental immunity under Local Government Code section 271.151(2)(A),

and thus make it immune from suit, required evidence; whether the Water District

was a governmental entity, being an undisputed jurisdictional fact, did not. See id.

at 301–02. There is no relationship between the facts and law in Lubbock County

Water Control and the facts and law involved in this case.

      The majority also cites Fink, a case from this Court, as support for its claim

that an individual who seeks dismissal on sovereign immunity grounds from a suit

filed against a governmental entity as well as himself is required to produce

evidentiary proof that he is an employee of that governmental entity. Fink, in fact,

supports exactly the opposite conclusion. In Fink, unlike this case, suit was not

brought against Fink’s undisputed governmental employer, the University of Texas,

but against Fink alone, a situation covered by section 101.106(f) of the TTCA, which

is not at issue in this case. See Fink, 447 S.W.3d at 462. The issue on appeal from

denial of dismissal under section 101.106(f) was whether representations made by

Professor Manfred Fink, an undisputed employee of the University of Texas,

regarding a technology he had developed whose patent was held by the university,



                                         14
were within the course and scope of Fink’s employment and thus should have been

brought under the Tort Claims Act against the university and not against Fink

personally. See id. at 462–63. As it was “undisputed that the University of Texas is

a governmental unit and that it was [the defendant] Fink’s employer at the relevant

time,” this Court took those undisputed facts to be established as a matter of law and

“turn[ed] to whether Fink ha[d] established the two remaining statutory requirements

for dismissal under Section 101.106(f),” namely, whether his remarks were within

the scope of his employment and whether suit could have brought against the

university under the Tort Claims Act.         Id. at 466 (emphasis added).       Those

requirements are inapplicable to suits for dismissal under section 101.106(e).

      It is simply error for the majority to cite either Lubbock County Water Control

or Fink as authority for the proposition that, to obtain dismissal under section

101.106(e), a governmental entity seeking dismissal of its employees has the

evidentiary burden of proving the unchallenged jurisdictional fact that they are

indeed its employees. I would hold, contrary to the majority, that the trial court

plainly erred to the extent that it requires UTHSC to provide evidentiary proof that

the Physician Defendants were its employees to be entitled to dismissal under section

101.106(e). Thus, the majority errs by entertaining Rios’s argument and affirming

the case.




                                         15
      2.     Rios’s Right to Replead His Claims in an Amended Petition After
             UTHSC’s Filing of a Section 101.106 Motion to Dismiss

      Because it holds that UTHSC and the Physician Defendants did not meet their

evidentiary burden to prove the employee status of the Physician Defendants, the

majority does not address the critical issue raised by UTHSC’s appeal, which is

whether Rios could properly amend his petition to replead his claims after UTHSC

filed a motion to dismiss under section 101.106(e). I would address this issue, and

I would decide it adversely to Rios.

      Immediately after Rios filed his Original Petition alleging breach of contract

against UTHSC and tort claims against UTHSC “separately and through” the

Physician Defendants, UTHSC filed its motion to dismiss the Physician Defendants

under section 101.106(e). But before the trial court ruled on UTHSC’s section

101.106(e) motion to dismiss, Rios filed his First Amended Petition.         In his

Amended Petition, Rios maintained his contract claim but dropped his tort claims

against UTHSC. He reasserted his common-law tort claims solely against the

Physician Defendants in the exact same language he had used in his Original

Petition, and he added a federal section 1983 claim against the Physician Defendants

based on the exact same conduct. In response, UTHSC filed its Amended Motion

to Dismiss under section 101.106(e).

      Under section 101.106(a) of the Tort Claims Act, “[t]he filing of a suit under

this chapter against a governmental unit constitutes an irrevocable election by the


                                        16
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.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a) (emphasis added). The

suit filed by Rios was unambiguously a suit against a governmental unit that barred

any recovery against any of its employees. Once that suit was filed, naming both

UTHSC and its employees, the Physician Defendants, UTHSC was entitled to

immediate dismissal of its employees under the plain language of section

101.106(e). Id. § 101.106(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.”).

      The purpose of section 101.106(e) is clear. The TTCA “provides a limited

waiver of immunity for certain suits against governmental entities and caps

recoverable damages,” and the Act includes an election of remedies provision—

section 101.106—to prevent plaintiffs’ attempts “to avoid the Act’s damages cap or

other strictures by suing governmental employees.” Mission Consol. Indep. Sch.

Dist. v. Garcia, 253 S.W.3d 653, 655–56 (Tex. 2008). Section 101.106’s purpose is

thus “to force a plaintiff to decide at the outset whether an employee acted

independently and is thus solely liable, or acted within the general scope of his or

her employment such that the governmental unit is vicariously liable . . . .” Id. at

657. This provision therefore “favors the expedient dismissal of governmental



                                        17
employees when suit should have been brought against the government.” Tex.

Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013); Garcia,

253 S.W.3d at 657 (“[The TTCA’s] election scheme is intended to protect

governmental employees by favoring their early dismissal when a claim regarding

the same subject matter is also made against the governmental employer.”).

      Because the TTCA “is the only, albeit limited, avenue for 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.” Garcia, 253 S.W.3d

at 659 (quoting Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997))

(emphasis added). That is the case here. By contrast, claims against the government

that are brought pursuant to waivers of sovereign immunity existing apart from the

TTCA, are not brought “under [the Tort Claims Act],” and thus the election of

remedies provision does not apply. Id. That was the case, for example, in Lubbock

County Water Control. But it is not the case here.

      As the Texas Supreme Court has stated, section 101.106 of the Tort Claims

Act expressly provides for the dismissal of the employees of a governmental unit on

proper motion so that “the suit must proceed against the government or not at all.”

Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 412 (Tex.

2015); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (e). It thus provides



                                        18
certain defendants—“government employees who are sued in tort for conduct within

the scope of their employment”—protection against the limited waiver of

governmental immunity by the TTCA. Cannon, 468 S.W.3d at 412. Under section

101.106, “by asserting common-law tort claims against both the [government] and

the [e]mployees, [the plaintiff] ma[kes] an irrevocable election under subsection (e)

to pursue those claims against the government only.” Id. at 417; see TEX. CIV. PRAC.

& REM. CODE ANN. § 101.106(a), (e).

      I would hold that, under the plain language of section 101.106 and under

Cannon, Rios was barred by the exclusive election provision in section 101.106(e)

from amending his petition to drop his tort claims against UTHSC while reasserting

his contract action against it. And he was barred from reasserting his claims against

the Physician Defendants as both common-law tort claims and a section 1983 claim

based on the exact same acts and seeking the exact same damages he had sought in

his tort claims in his Original Petition. To allow such pleading is to contravene the

express purpose of section 101.106 and is therefore improper. See TEX. CIV. PRAC.

& REM. CODE ANN. § 101.106(a), (e); TEX. GOV’T CODE ANN. § 311.021 (2)–(3)

(Vernon 2013) (providing that, in enacting statute, it is presumed that entire statute

is intended to be effective and that “a just and reasonable result is intended”); In re

M.N., 262 S.W.3d 799, 802 (Tex. 2008) (holding same).




                                          19
      Rios, however, relies upon Cannon as authority for filing his Amended

Petition and treating his Original Petition as a nullity. Therefore, it is necessary to

examine that case in some detail. In Cannon, the Texas Supreme Court considered

the issue presented by this case: whether a trial court could accept an amended

petition filed by a plaintiff who had initially asserted only tort claims subject to the

TTCA against both a governmental employer and its employees after the defendant

governmental entity and its employees had filed a motion to dismiss under section

101.106(e) and before the trial court ruled on the motion to dismiss. In Cannon, the

plaintiff sued both the Texas Department of Aging and Disability Services (“the

Department”) and three of its employees, raising claims of negligent hiring, training,

and supervision against the Department and negligent use of excessive force against

the individual employees, all torts. Cannon, 468 S.W.3d at 413. The Department

and the employees filed both a plea to the jurisdiction and a motion to dismiss under

section 101.106(a) and (e). Id. As here, before the trial court ruled on the motion to

dismiss, Cannon amended her petition to add federal claims under section 1983 of

the United States Code against both the Department and the employees. She then

agreed to dismiss all of her common-law tort claims, leaving only her federal section

1983 claims remaining. Id. The trial court denied the Department’s plea to the

jurisdiction and denied its motion to dismiss the employees. Id.




                                          20
      Relying on the language in subsection 101.106(e) requiring “immediate”

dismissal of the employees upon the filing of a motion by the governmental entity,

the Department argued on appeal that the trial court should not have considered

Cannon’s amended petition, which was filed while its section 101.106(e) motion to

dismiss was pending. Id. at 416. Cannon, on the other hand, argued that “because

court action is required to effectuate dismissal of government employees, nothing in

subsection (e) precludes a plaintiff from amending her petition before that dismissal

in accordance with applicable procedural rules.” Id.

      The Texas Supreme Court agreed with Cannon’s interpretation of section

101.106(e) under the circumstances of that case. Id. The supreme court first noted

that section 1983 “provides a statutory remedy to individuals whose constitutional

rights are violated by state officials,” and, as such, Cannon’s section 1983 claims in

her amended petition were federal statutory and constitutional claims not “brought

under the Tort Claims Act.” Id. (emphasis added). The court also held that, despite

the language of section 101.106(e) stating that “the employees shall immediately be

dismissed on the filing of a motion by the governmental unit,” that language “does

not translate to an absolute right to dismissal upon the motion’s filing” because “a

court order, along with certain findings, is required to effectuate dismissal.” Id. at

418. The court thus concluded that section 101.106(e) does not “conflict with our

liberal procedural rules governing pleading amendments,” and it held that “when a



                                         21
governmental unit files a motion to dismiss under subsection 101.106(e), the

plaintiff is not foreclosed from amending her petition in accordance with applicable

procedural rules to assert claims that are not brought under the Tort Claims Act.”

Id. at 418, 419.

      In reaching this holding, however, the Texas Supreme Court specifically

noted that Cannon’s amended petition “did not omit claims against the government

in an attempt to preserve tort claims against employees that would otherwise be

subject to dismissal.” Id. at 417. Indeed, Cannon did “not dispute that, by asserting

common-law tort claims against both the Department and the Employees, she made

an irrevocable election under subsection (e) to pursue those claims against the

government only, even though the court of appeals ultimately determined that the

government was immune from suit.” Id. The court concluded, however, that

Cannon’s irrevocable election did not extend to her section 1983 claims against the

employees, as those claims “were not brought under the Tort Claims Act and thus

were not otherwise subject to dismissal.” Id. (emphasis in original).

      The posture of the pleadings in Cannon is exactly the opposite of this case. In

amending his petition before the trial court could dismiss his claim pursuant to

section 101.106(e), Rios did not elect to continue to pursue his tort claim solely

against the governmental entity, UTHSC. He did the opposite. He elected to drop

his tort claim against UTHSC and to continue to pursue it solely against UTHSC’s



                                         22
employees—in direct violation of the plain language and intent of section

101.106(e). See Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013) (stating that section

101.106 “favors the expedient dismissal of governmental employees when suit

should have been brought against the government”); Garcia, 253 S.W.3d at 657

(“[The TTCA’s] election scheme is intended to protect governmental employees by

favoring their early dismissal when a claim regarding the same subject matter is also

made against the governmental employer.”). And Rios did “omit claims against the

government in an attempt to preserve tort claims against employees that would

otherwise be subject to dismissal,” again putting himself exactly at odds with

Cannon. See 453 S.W.3d at 417.

      Disregarding Cannon’s warnings, Rios points out that the Texas Rules of

Civil Procedure permit amendments of pleadings that do not “operate as a surprise

to the opposite party” until seven days before trial without court permission, and

they provide that amended pleadings substitute for the original pleadings. See TEX.

R. CIV. P. 63, 65. He then specifically relies upon Cannon’s statement that the

plaintiff’s section 1983 claims in Cannon, filed in an amended petition after the

defendants had moved to dismiss pursuant to section 101.106(e), were not brought

under the TTCA and “[s]ubsection 101.106(e) of the Tort Claims Act does not

contemplate dismissal of claims asserted independently of that Act.” 453 S.W.3d at

412, 416.



                                         23
      Rios, however, overlooks the statement in Cannon pointing out that the

amended petition in that case did not “omit claims against the government in an

attempt to preserve tort claims against employees that would otherwise be subject to

dismissal.” Id. at 417. And indeed, Rios did exactly the opposite from Cannon.

After UTHSC and the Physician Defendants moved to dismiss under section

101.106, Rios amended his petition to drop his common-law tort claims against

UTHSC and to assert these claims solely against the Physician Defendants, and he

added a section 1983 claim against the Physician Defendants based on the exact

same alleged conduct and ultimate issues of fact that had formed the basis for his

tort claims in his Original Petition.

      Rios’s tort claims in his Amended Petition, as well as his federal section 1983

claims, are indistinguishable in subject matter from the common-law tort claims

asserted against the Physician Defendants as employees of UTHSC in his Original

Petition. Even the language of the Amended Petition is identical to that of the

Original Petition except for the addition of language recasting as violations of

section 1983 the exact same acts Rios pled in both petitions against the Physician

Defendants as the common-law torts of tortious interference with his employment

contract, tortious interference with future relations, and defamation—namely

“making false statements that eventually led to his contract being terminated.” This

case is, thus, the exact contrary of Cannon, in which the plaintiff expressly dismissed



                                          24
all of her common-law tort claims and disclaimed reasserting her tort claims as her

section 1983 claims. See Cannon, 453 S.W.3d at 413 (noting that after Cannon filed

her amended petition asserting 1983 claims, she dismissed all of her common-law

tort claims).

      I would conclude that Rios amended his petition for the precise purpose of

“omit[ting] claims against the government in an attempt to preserve tort claims

against employees that would otherwise be subject to dismissal.” Id. at 417. I would

hold, therefore, that Rios’s amendment of his pleadings was impermissible and

improper under Cannon. I would also hold that Rios could not recast his common-

law tort claims as section 1983 claims against the Physician Defendants in his

Amended Petition while still pleading his common-law tort claims based on the

exact same facts regarding the exact same subject matter as in his Original Petition,

as that action was plainly designed to circumvent the election of remedies provision

in section 101.106(a). Nor could he cast his section 1983 claims as claims against

state actors—the only persons to whom such claims apply—while contradictorily

maintaining that the Physician Defendants were not state actors because they had

not been shown to be state employees.

      I conclude that Rios’s filing of his Original Petition in tort against UTHSC

and its employees constituted an irrevocable election to bring his claims against

UTHSC only. Therefore, the filing of his Amended Petition, which dropped his tort



                                         25
claims against UTHSC and reasserted the exact same claims against UTHSC’s

employees only, constituted a direct violation of the plain language of section

101.106, and that cause of action was barred by the statute. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.106(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”)

(emphasis added).

      I would hold, therefore, that, under the circumstances of this case, UTHSC

was entitled to immediate dismissal of Rios’s claims against the Physician

Defendants upon the filing of his Original Petition. See id. § 101.106(e) (“If a suit

is filed under [the Tort Claims Act] 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.”); see also Cannon, 453 S.W.3d at 417 (“Cannon does not

dispute that, by asserting common-law tort claims against both the Department and

the Employees, she made an irrevocable election under subsection (e) to pursue

those claims against the government only, even though the court of appeals

ultimately determined that the government was immune from suit.”).

      As the pleadings in Rios’s Original Petition affirmatively negated the

existence of jurisdiction over the Physician Defendants, UTHSC’s plea to the



                                         26
jurisdiction should be granted, and Rios should not be allowed to replead. See

Miranda, 133 S.W.3d at 226–27.

      3.     The Concurrence

      My opinion is not changed by the concurrence. The concurring opinion takes

the position that Rios timely amended and replaced his Original Petition and that

UTHSC’s Amended Motion to Dismiss, filed in response to Rios’s Amended

Petition, “canceled and replaced [its] first Motion to Dismiss.” See Slip Op. at 6.

Thus, only the Amended Petition and the Amended Motion to Dismiss remained to

be adjudicated. See id. at 8. I cannot agree with the concurrence that a plaintiff in a

suit subject to the Tort Claims Act has an automatic right to amend his original

petition after a motion to dismiss the original suit under section 101.106 has been

filed and thereby to initiate a new suit that voids the original.

      Section 101.106(a) expressly states that “[t]he filing of a suit under [the Tort

Claims Act] 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a) (emphasis added). By

allowing the plaintiff to amend and automatically nullify the original petition while

a motion to dismiss under section 101.106 is pending before the trial court can rule

on the pending motion to dismiss, a court necessarily declares that the original



                                           27
election was not irrevocable and that no determination is needed as to whether the

second suit was barred; it automatically is not barred. This judicial action contradicts

the express language of section 101.106(a). And it also nullifies the intent of section

101.106(e), which provides that “[i]f a suit is filed under [the Tort Claims Act]

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.” Id.

§ 101.106(e).

      It cannot have been the intent of the Legislature to enact a null statute. See

TEX. GOV’T CODE ANN. § 311.021 (“In enacting a statute, it is presumed

that . . . (2) the entire statute is intended to be effective; [and] (3) a just and

reasonable result is intended . . . .”); see also In re M.N., 262 S.W.3d at 802 (in

construing statute, “our objective is to determine and give effect to the Legislature’s

intent”; court presumes that “the Legislature intended a fair and reasonable result”

and that “the Legislature included each word in the          statute for a purpose”).

Therefore, I cannot agree with the position taken by the concurrence that Rios’s

filing of an amended petition during the pendency of a section 101.106 motion to

dismiss automatically nullified Rios’s original petition.       Nor can I agree that

UTHSC’s filing of an amended motion to dismiss responding to the pleading in the

amended petition nullified the motion to dismiss pending with respect to the original

petition.



                                          28
      The trial court should have considered the allegations in both Rios’s Original

Petition and his Amended Petition in order to determine whether he amended his

petition solely in an effort to avoid the requirements of section 101.106 and to nullify

the intended effect of the statute. Otherwise, every plaintiff with a claim potentially

subject to dismissal under section 101.106 can negate his original pleading—and

negate the purpose of section 101.106—simply by filing an amended petition on the

exact same grounds against the exact same governmental entity and governmental

employees with the exact same ultimate issues of fact, but under a different name

for the claims, as soon as the defendant files a motion to dismiss under section

101.106 and before the trial court has the opportunity to rule on the pending motion

to dismiss the original petition. He can then claim that the amended petition

constitutes the filing of a new suit that nullifies the original petition and any pending

motion to dismiss and that any amended motion to dismiss filed in response to the

amended petition is not meritorious under section 101.106 because the original suit

disappeared. That is exactly what Rios did here. And it is exactly what the

concurrence would permit him to do, without providing any means for determining

whether the second suit was barred because it merely restated the first suit with

respect to the same parties and the same subject matter under an additional theory

that merely redesigned his tort claims as federal section 1983 claims based on the

same ultimate issues of fact.



                                           29
      I would review Rios’s Amended Petition and his Original Petition in light of

section 101.106 to determine whether Rios’s “filing of [his original] suit” under the

Tort Claims Act constituted an “irrevocable election” that “bar[red] any suit”—

namely the suit brought by Rios’s substituted amended petition—regarding the same

subject matter and therefore whether the second suit was barred. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.106(a). Under the circumstances of this suit, I

would hold that the suit pled in Rios’s Amended Petition was barred by section

101.106.

                                       Conclusion

      I would reverse the judgment of the trial court denying UTHSC’s motion to

dismiss the Physician Defendants. I would grant the motion and dismiss with

prejudice Rios’s suit against the Physician Defendants.




                                              Evelyn V. Keyes
                                              Justice

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

Chief Justice Radack, concurring.

Justice Keyes, dissenting.




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