      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00387-CV



     Debbie Fiske, Individually and as Next Friend of Christopher Roy Rodriguez, and
                             Raymond Rodriguez, Appellants

                                                  v.

                                  Leanne Heller, M.D., Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
          NO. 99-04307, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellants Fiske and Rodriguez challenge a summary judgment rendered against

them based on § 101.106 of the Texas Civil Practice and Remedies Code. Prior to its amendment,1

section 101.106 barred actions against a governmental employee when there had been a judgment




       1
          Section 101.106 of the Texas Civil Practice and Remedies Code was amended by the 78th
legislature and now provides that the filing of an action against a governmental unit bars any suit or
recovery against an employee regarding the same subject matter and that the filing of a suit against
an employee likewise bars a suit against the governmental unit. See Tex. Civ. Prac. & Rem. Code
§ 101.106(a), (b) (West Supp. 2004). A suit filed naming both the governmental unit and the
employee will be dismissed on the motion of the governmental unit. Id. § 101.106(e). The amended
section 101.106, however, only applies to cases filed on or after September 1, 2003 and, therefore,
the prior law governs this case. See Act effective September 1, 2003, 78th Leg., R.S., ch. 204,
§ 23.02(d), 2003 Tex. Gen. Laws 899.
in an action against the governmental unit involving the same subject matter. Tex. Civ. Prac. &

Rem. Code § 101.106 (West 1997). Appellants contend in a single issue that the trial court erred in

granting summary judgment for Heller because there was no judgment in the action against the

governmental unit, but rather a dismissal pursuant to a plea to the jurisdiction. We will affirm the

summary judgment.

               Appellants Fiske and Rodriguez are the parents of Christopher Roy Rodriguez.

Christopher committed suicide by hanging himself with a bed sheet while a patient at the Austin

State Hospital (ASH). Appellants brought suit against ASH alleging liability under the Texas Tort

Claims Act and a violation of the Patient’s Bill of Rights. See Tex. Civ. Prac. & Rem. Code

§ 101.021(2) (West 1997); Tex. Health & Safety Code § 321.003 (West 2001). In the same action,

appellants also sued ASH psychiatrist Heller for malpractice alleging that she was negligent in her

treatment of Christopher. Specifically, they alleged that Heller was negligent in her initial evaluation

of Christopher and in failing to place him on suicide watch upon his admission to ASH.

               ASH filed a plea to the jurisdiction contending that the district court did not have

subject matter jurisdiction under the Tort Claims Act because there was no negligent use of tangible

property and that the Patient’s Bill of Rights did not waive ASH’s sovereign immunity. The district

court granted the plea to the jurisdiction with regard to the Tort Claims Act claim, but denied the

plea raising sovereign immunity. ASH appealed the denial of the plea to this Court and we affirmed

the denial. See Central Counties Ctr. for Mental Health and Mental Retardation Services v.

Rodriguez, 45 S.W.3d 707 (Tex. App.—Austin 2001, pet. granted), rev’d, 106 S.W.3d 702 (Tex.

2003), and rev’d sub nom. Austin State Hospital v. Fiske, 106 S.W.3d 703 (Tex. 2003). The Texas

Supreme Court granted review and reversed the denial of the plea to the jurisdiction holding that the


                                                   2
Patient’s Bill of Rights did not waive sovereign immunity; it thus dismissed the remaining claims

against ASH. See Austin State Hospital v. Fiske, 106 S.W.3d 703, 704 (Tex. 2003).

               After the dismissal of appellants’ claims against ASH by the supreme court, Heller

filed a motion for summary judgment citing section 101.106 of the Texas Civil Practice and

Remedies Code’s bar on actions against governmental employees where there has been a judgment

in an action against the governmental unit involving the same subject matter. The district court

granted the summary judgment in favor of Heller and appellants bring this appeal.

               Both parties agree that the only issue before the court is a question of law: Whether

section 101.106 of the Texas Civil Practice and Remedies Code bars an action against an employee

of a governmental unit when an action against the governmental unit involving the same subject

matter has been dismissed pursuant to a plea to the jurisdiction raising sovereign immunity. Prior

to its amendment, section 101.106 stated in its entirety:


       A judgment in an action or a settlement of a claim under this chapter bars any action
       involving the same subject matter by the claimant against the employee of the
       governmental unit whose act or omission gave rise to the claim.


Tex. Civ. Prac. & Rem. Code § 101.106 (West 1997). Appellants contend that the dismissal of the

claims against ASH was not a “judgment” under section 101.106 and therefore cannot bar their

action against ASH employee Heller.

               Appellants cite Sykes v. Harris County, 89 S.W.3d 661, 668 (Tex. App.—Houston

[1st Dist.] 2002, pet. granted), rev’d 47 Tex. Sup. J. 618, 2004 Tex. LEXIS 476 (May 28, 2004) in

support of their argument. Sykes contracted tuberculosis at the Harris County Jail and later died

from related pulmonary problems. Id. at 664. A claim was filed against both Harris County and Carl


                                                 3
Borchers, an employee of the jail, for negligently failing to quarantine an inmate who was infected

with tuberculosis and forcing Sykes to sleep next to that inmate. Harris County filed a plea to the

jurisdiction claiming sovereign immunity. The trial court granted the plea and dismissed the case

against Harris County. Then, Borchers filed a motion for summary judgment citing section 101.106

of the Texas Civil Practice and Remedies Code. The trial court granted summary judgment. The

court of appeals, however, reversed the summary judgment holding:


       A dismissal for want of jurisdiction is not a judgment on the merits of the cause of
       action. See Bell, 945 S.W.2d at 295. Section 101.106 does not provide Borchers
       with immunity because there was no judgment or settlement of claims as to Harris
       County.


Sykes, 89 S.W.3d at 668. Appellants ask that we follow Sykes and reverse the summary judgment

on the grounds that the dismissal of the claims against ASH pursuant to the plea to the jurisdiction

was not a judgment and therefore section 101.106 does not bar an action against Heller. See id.; Bell

v. State Dep’t of Highways and Pub. Transp., 945 S.W.2d 292, 295 (Tex. App.—Houston [1st Dist.]

1997, writ denied).2

               The supreme court has overruled the Sykes opinion, thereby foreclosing appellants’

contention. See Harris County v. Sykes, 47 Tex. Sup. J. 618, 2004 Tex. LEXIS 476 (May 28, 2004).

The supreme court noted the conflicting opinions of the courts of appeals and recognized that it had

never considered whether a dismissal on a plea to the jurisdiction is a “judgment that trigger[s] the




       2
          As noted by Heller, however, other courts of appeals have reached the opposite conclusion.
See Dalehite v. Nauta, 79 S.W.3d 243, 244 (Tex. App.—Houston[14th Dist.] 2002, pet. denied); Liu
v. City of San Antonio, 88 S.W.3d 737, 744 (Tex. App.—San Antonio 2002, pet. denied); Doyal v.
Johnson County, 79 S.W.3d 139, 140 (Tex. App.—Waco 2002, no pet.).

                                                 4
bar of the Texas Tort Claims Act.” Id. at *12. The court then explicitly addressed the argument

advanced by Sykes, as well as appellants:


       Sykes argues that a granted plea to the jurisdiction does not qualify as a judgment
       because it does not dispose of the claims’ merits. As we have already held, however,
       a dismissal constitutes a final determination on the merits of the matter actually
       decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612, 42 Tex. Sup. Ct. J. 357 (Tex.
       1999) (per curiam); Mossler v. Shields, 818 S.W.2d 752, 754, 35 Tex. Sup. Ct. J. 97
       (Tex. 1991) (per curiam). In this case, there is a final adjudication that the
       Legislature has not waived Harris County’s immunity on the facts of this case. Since
       the trial court properly dismissed Sykes’s claims against Harris County with
       prejudice, Carl Borchers is entitled to derivative immunity under section 101 of the
       Texas Tort Claims Act.


Id. at *13. Similarly, the trial court’s dismissal of appellants’ suit against ASH constituted a final

determination that the legislature had not waived ASH’s immunity on the facts of the case. See id.

As such, the dismissal based on ASH’s plea to the jurisdiction was sufficient to invoke section

101.106 of the Texas Civil Practice and Remedies Code and bar any action against Heller, an

employee of ASH. See id.

               Finding the supreme court’s recent opinion in Harris County v. Sykes controlling,

we deny appellant’s only issue and affirm the district court’s grant of summary judgment in favor

of Heller.




                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: June 24, 2004

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