                                             OPINION
                                        No. 04-09-00812-CV

      UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,
                               Appellant

                                                   v.

                           Patricia WEBBER-EELLS and William Eells,
                                          Appellees

                     From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CI-17086
                             Honorable Peter A. Sakai, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Steven C. Hilbig, Justice, concurring in the judgment only

Delivered and Filed: June 30, 2010

REVERSED AND RENDERED

           Section 101.106 of the Texas Civil Practice and Remedies Code is entitled “Election of

Remedies” and is applicable when an employee of a governmental unit is sued. TEX. CIV. PRAC.

& REM. CODE ANN. § 101.106 (Vernon 2005). Since 2003, this statute has required 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.” Mission Consol. Ind. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). The
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statute requires a plaintiff, at the time suit is filed, to make an “irrevocable election” between

suing the governmental unit or the employee. Id. This irrevocable election is complicated by the

fact that the plaintiff must determine both: (1) whether the employee was acting within the scope

of his or her employment; and (2) whether the lawsuit “could have been brought” against the

governmental unit, which, in the medical negligence context, typically involves a determination

of whether the plaintiff’s injuries were caused by the use of tangible personal property. TEX.

CIV. PRAC. & REM. CODE ANN. §§ 101.106(f), 101.021 (Vernon 2005). Given the plethora of

opinions addressing whether a claim involves the use of tangible personal property, and given

that a case involving that issue has been pending before the Texas Supreme Court for

approximately three years, it is clear that determining whether an injury resulted from the use of

tangible personal property, even with existing legal precedent, is not simple or straightforward.

See Franka v. Velasquez, 216 S.W.3d 409 (Tex. App.—San Antonio 2006, pet. granted).

       Patricia Webber-Eells and William Eells (the “Eells”) initially sued Kenneth R. Sirinek,

M.D. in federal court for damages resulting from negligent medical treatment. After Sirinek

filed a motion to dismiss pursuant to section 101.106(f) of the Code, the Eells filed an amended

complaint conditionally substituting the University of Texas Health Science Center at San

Antonio (UTHSCSA) for Sirinek. After the federal court dismissed both Sirinek and UTHSCSA

from the federal lawsuit, the Eells filed a lawsuit against UTHSCSA in state court. The trial

court denied UTHSCSA’s motion to dismiss, and UTHSCSA now appeals. UTHSCSA contends

the dismissal was mandatory because the Eells failed to comply with section 101.106(f) by

timely filing amended pleadings in federal court that both dismissed Sirinek and named

UTHSCSA as the defendant.




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                                          BACKGROUND

       In 2007, Patricia was admitted to a veteran’s administration hospital for surgery to

remove her gall bladder. During the surgical procedure, which was performed by Sirinek,

Patricia allegedly suffered an intraoperative injury resulting in a five centimeter hole in her colon

which led to multiple complications.

       In March 2009, the Eells filed an original complaint in federal court against Sirinek and

the United States of America alleging negligent medical treatment. On July 10, 2009, Sirinek

filed a motion to dismiss pursuant to section 101.106(f) of the Code, asserting that his conduct

was within the general scope of his employment by UTHSCSA and the suit could have been

brought against UTHSCSA. The Eells filed a response to Sirinek’s motion, asserting that the

suit could not have been brought against UTHSCSA. The Eells contended that Sirinek’s alleged

negligent acts and the resulting injuries were not caused by the use of tangible personal property

as required for UTHSCSA’s immunity to be waived. Because section 101.106(f) would require

the Eells to amend their pleadings by August 10, 2009, in the event the federal court ruled the

suit could be brought against UTHSCSA, the Eells requested an expedited ruling from the

federal court on Sirinek’s motion to dismiss.

       Since the federal court did not expedite its ruling, the Eells filed an amended complaint

on August 7, 2009, naming UTHSCSA as a conditional defendant, as follows:

              To the extent the Texas Tort Claims Act applies to the claims asserted
       against Defendant KENNETH R. SIRINEK, M.D., and the UNIVERSITY OF
       TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO is determined to be
       the appropriate Defendant for the claims asserted against Defendant KENNETH
       R. SIRINEK, M.D., Plaintiffs assert the following claims of negligence against
       Defendant UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN
       ANTONIO as set forth herein.




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On September 16, 2009, UTHSCSA filed a motion to dismiss in federal court asserting: (1) the

Eells’ claims were barred by the Eleventh Amendment which requires a suit against a state

agency to be brought in state court; and (2) the Eells alleged a medical malpractice claim under

the Texas Tort Claims Act that was required to be brought in state court.

          On September 29, 2009, the federal court signed an order granting Sirinek’s motion. The

federal court concluded that tangible personal property in the form of surgical instruments

caused Patricia’s injuries, stating, “After all, the failures to diagnose and treat the bowel leak

would not have been issues if the bowel had not first been perforated.” On October 19, 2009, the

federal court signed an order granting UTHSCSA’s motion to dismiss, concluding the Eells’

claims were barred by the Eleventh Amendment. The Eells did not appeal the federal court’s

orders.

          On October 19, 2009, the Eells filed the underlying lawsuit in state court. UTHSCSA

filed a motion to dismiss, asserting the Eells failed to timely amend their pleadings in federal

court to dismiss Sirinek as required by section 101.106(f). The Eells responded that the motion

to dismiss should be denied because the Eells substantially complied with section 101.106(f) by

amending their complaint to conditionally substitute UTHSCSA. The Eells also asserted that the

purposes of section 101.106 would not be served by dismissing their claims. After a hearing, the

trial court denied UTHSCSA’s motion, and UTHSCSA filed this appeal.

                                       STANDARD OF REVIEW

          The issue presented in this appeal requires this court to interpret the meaning of section

101.106(f). “The meaning of a statute is a legal question, which we review de novo to ascertain

and give effect to the Legislature’s intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d

433, 437 (Tex. 2009). “Where text is clear, text is determinative of that intent.” Id. “This



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general rule applies unless enforcing the plain language of the statute as written would produce

absurd results.” Id. “Therefore, our practice when construing a statute is to recognize that ‘the

words [the Legislature] chooses should be the surest guide to legislative intent.’” Id. (quoting

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)). Statutory

waivers of immunity are narrowly interpreted because the Legislature’s intent to waive immunity

must be clear and unambiguous. Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 655.

                                      CALDERON AND BRIGGS

       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.


TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (Vernon 2005). UTHSCSA primarily relies on

two opinions to assert the trial court erred in denying its motion to dismiss. See Tex. Dept. of

Agriculture v. Calderon, 221 S.W.3d 918 (Tex. App.—Corpus Christi 2007, no pet.); Huntsville

Ind. Sch. Dist. v. Briggs, 262 S.W.3d 390 (Tex. App.—Waco 2008, pet. filed).

A.     Calderon

       In Calderon, the plaintiffs filed a lawsuit against an employee of the Texas Department

of Agriculture (TDA), alleging that the employee negligently caused an automobile accident that

injured the plaintiffs. 221 S.W.3d at 920. After the employee filed a motion to dismiss pursuant

to section 101.106(f), the plaintiffs amended their pleadings to name both the employee and the




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TDA as defendants. Id. The trial court subsequently granted a second motion to dismiss filed by

the employee, but denied a plea to the jurisdiction filed by the TDA. Id.

         On appeal to the Corpus Christi court, the TDA contended the trial court erred in denying

its plea because: (1) the TDA became immune under section 101.106(b) when the plaintiffs

irrevocably elected to sue the employee instead of suing the TDA; and (2) the TDA retained its

immunity under section 101.106(f) when the plaintiffs failed to dismiss the employee and

substitute the TDA in response to the employee’s motion to dismiss. Id. The Corpus Christi

court noted that the question presented was two-fold: (1) whether section 101.106(b) conferred

immunity from suit on the TDA; and (2) what effect section 101.106(f) had in relation to section

101.106(b) under the facts of the case. Id. at 921.

         The Corpus Christi court first held that the TDA became immune from suit under section

101.106(b) when the plaintiffs initially filed suit against the employee. 1 Id. Although section

101.106(b) does not utilize the word “immunity,” the court concluded that it is an immunity

statute. Id. The court reasoned that the Legislature’s use of the phrase “bars any suit” in section

101.106(b) operated as an unequivocal grant of immunity from suit to a governmental unit upon

the plaintiffs filing of suit against the employee. Id. at 922.

         The Corpus Christi court next considered what effect section 101.106(f) had with respect

to the TDA’s immunity derived from section 101.106(b). Id. The court asserted that section

101.106(f) confers immunity on a sued employee based on the employee’s motion to dismiss if:

(1) the employee’s alleged conduct occurred in the scope of her employment; and (2) suit could

have been brought against the governmental unit. Id. In addition, the court noted that section


1
  Section 101.106(b) provides, “The filing of a suit against any employee of a governmental unit constitutes an
irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the
governmental unit regarding the same subject matter unless the governmental unit consents.” TEX. CIV. PRAC. &
REM. CODE ANN. § 101.106 (Vernon 2005).

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101.106(f) has a second potential effect - that of removing a governmental unit’s immunity

derived from section 101.106(b) - by requiring the plaintiff to substitute the governmental unit as

the defendant in place of the employee in order to maintain the lawsuit. Id. at 923. “In order for

the governmental unit’s immunity under section 101.106(b) to be removed by section 101.106(f),

however, the plaintiff must comply with the procedural requirements of section 101.106(f).” Id.

“Thus, the plaintiff must file an amended pleading that both dismisses the employee and

substitutes the governmental unit as the defendant within thirty days of the employee’s motion to

dismiss.” Id. “If however, the plaintiff fails to timely file such an amended pleading, section

101.106(f) requires that the suit against the employee be dismissed by the trial court.” Id. “In

that event, the governmental unit retains its immunity from suit derived from section 101.106(b),

and the plaintiff loses the opportunity to name the governmental unit in place of the employee as

the defendant in the lawsuit.” Id.

       Under the facts presented, the Corpus Christi court reasoned that the plaintiffs had thirty

days to file an amended petition from the date the employee filed her first motion to dismiss. Id.

Because the plaintiffs failed to dismiss the employee but instead simply added the TDA as an

additional defendant, the court held that the plaintiffs failed to comply with the procedural

requirements of section 101.106(f). Id. As a result, the court held the trial court properly

dismissed the employee, but improperly denied the TDA’s plea to the jurisdiction because the

TDA retained its immunity under section 101.106(b). Id. at 923-24.

B.     Briggs

       In Briggs, the plaintiff sued an employee of Huntsville Independent School District

(HISD) after his car was hit from behind by a school bus driven by the employee. 262 S.W.3d at

391. The employee filed a motion to dismiss pursuant to section 101.106(f). Id. Although the



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plaintiff amended his petition to add HISD as a defendant within thirty days after the employee

filed the motion to dismiss, the plaintiff did not amend his petition to remove the employee as a

defendant until after the thirty-day deadline. Id. HISD filed a plea to the jurisdiction, asserting

immunity under section 101.106(b), which the trial court denied. Id.

       The Waco court asserted, “What we need to decide in this appeal is what effect the

untimely election under subsection (f) to dismiss the employee and substitute the governmental

unit as a party to the suit has on the governmental unit’s immunity established by subsection

(b).” Briggs, 262 S.W.3d at 393. The Waco court then discussed the decision in Calderon,

agreeing with its analysis until the Calderon court determined that subsection (f) required the suit

against the employee to be dismissed if the plaintiff failed to timely file an amended pleading.

Id. at 394. Instead, the Waco court asserted that the employee could be dismissed only if the

employee proved the two prerequisites for dismissal, i.e., conduct within the scope of

employment and suit could have been brought against the governmental unit under the Texas

Tort Claims Act. Id.; see also Wilkins v. McManemy, No. 14-06-00876-CV, 2009 WL 838139,

at *9 (Tex. App.—Houston [14th Dist.] Mar. 31, 2009, pet. filed) (noting dismissal of employee

would be proper only if the employee proved entitlement to dismissal after a hearing). The

Waco court reasoned:

               When a defendant employee files a motion to dismiss under subsection (f),
       the plaintiff has two choices. He can wait, not amend his petition, and see if the
       trial court agrees with the employee that the suit filed is a suit under the Texas
       Tort Claims Act, which meets the two prerequisites of the statute, and dismisses
       the suit against the defendant employee. Or, he can go ahead and timely amend
       his petition by both dismissing the employee and substituting the governmental
       unit as a party. He has 30 days from the filing of the motion to dismiss to timely
       amend.

              There is certainly a risk with either choice. If the plaintiff waits, does not
       amend, and the trial court dismisses his suit against the defendant employee, he
       has missed his chance to sue the governmental unit, because he has opted to sue

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       the employee first regarding the same subject matter. Whether the employee is
       initially sued in her individual or official capacity is irrelevant. The benefit of
       waiting is that if the trial court does not grant the employee’s motion to dismiss
       because the employee has not proved the necessary prerequisites, the employee is
       still a defendant in the suit. But, if the plaintiff decides to amend, and does not do
       so timely, regardless of whether a subsection (f) motion has been granted, he has
       also missed the chance to sue the governmental unit.

Briggs, 262 S.W.3d at 394-95 (citations omitted).

       Discussing the facts of the case presented, the Waco court noted that the plaintiff chose to

file his lawsuit against the employee. Id. at 395. Once the suit was filed, HISD became immune

from suit under section 101.106(b). Id. Because the plaintiff failed to timely dismiss the

employee within thirty days from the date of the employee’s motion to dismiss pursuant to

section 101.106(f), HISD retained its immunity under section 101.106(b), and its plea to the

jurisdiction should have been granted. Id.

                                             ANALYSIS

A.     Substantial Compliance

       The Eells counter UTHSCSA’s reliance on Calderon and Briggs by asserting that they

substantially complied with section 101.106(f) when they conditionally substituted UTHSCSA in

their timely amended federal complaint. In support of this position, the Eells primarily rely on

three cases involving a post-suit notice requirement.       In those cases, however, the courts

expressly noted that compliance with the statute in question was not jurisdictional. Ballesteros v.

Nueces County, 286 S.W.3d 566, 569-70 (Tex. App.—Corpus Christi 2009, pet. stricken); Dallas

County v. Autry, 251 S.W.3d 155, 158 (Tex. App.—Dallas 2008, pet. denied); Dallas County v.

Coskey, 247 S.W.3d 753, 755-56 (Tex. App.—Dallas 2008, pet. denied). Only after determining

that the statute was not jurisdictional did the courts determine that substantial compliance with




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the statute was sufficient. Ballesteros, 286 S.W.3d at 570-72; Autry, 251 S.W.3d at 158; Coskey,

247 S.W.3d at 756-57.

       Unlike the statute examined in the cases cited by the Eells to support their substantial

compliance argument, section 101.106 involves governmental immunity and is jurisdictional.

Calderon, 221 S.W.3d at 921-22 (discussing immunity under section 101.106(b)); Phillips v.

Dafonte, 187 S.W.3d 669, 672-74 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Although

section 101.106 has procedural aspects, “[t]he procedural rights the legislature granted also have

a substantive impact.” Phillips, 187 S.W.3d at 673. The plaintiff’s choices and procedural

actions impact the immunity of either the governmental unit or the employee of the

governmental unit; therefore, section 101.106 is a jurisdictional statute involving the waiver of

immunity.    See State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009) (noting immunity is a

jurisdictional question); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.

2004) (noting immunity deprives a trial court of subject matter jurisdiction). As such, we must

strictly construe it, and the Eells’ “conditional pleading” is not sufficient to comply with the

express dictates of section 101.106(f) which requires both the dismissal of the employee and the

naming of the governmental unit as the defendant. City of Houston v. Jackson, 192 S.W.3d 764,

770 (Tex. 2006) (noting statutes waiving sovereign and governmental immunity should be

strictly construed); City of Houston v. Hildebrandt, 265 S.W.3d 22, 26 (Tex. App.—Houston [1st

Dist.] 2008, pet. denied) (same). In fact, the Eells’ conditional pleading must be likened to the

alternative pleadings that the Texas Supreme Court has stated section 101.106 was intended to

prevent. See Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 657.




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B.     Absurd Result

       The Eells next contend that UTHSCSA’s interpretation of the statute would lead to an

absurd result. We start with the concept that sovereign immunity, unless waived, protects the

State of Texas, its agencies, and its officials from lawsuits for damages, absent legislative

consent to sue the State. Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 405 (Tex.

1997). Even if a plaintiff asserts a claim on which the State acknowledges liability, immunity

precludes a remedy until the Legislature consents to suit. Id. The judiciary has “consistently

deferred to the Legislature to waive sovereign immunity from suit, because this allows the

Legislature to protect its policymaking function.” Texas Nat. Res. Conserv. Comm’n v. IT-Davy,

74 S.W.3d 849, 854 (Tex. 2002). “Indeed, in the Code Construction Act, the Legislature

expressed its desire to maintain control over sovereign immunity ‘[i]n order to preserve [its]

interest in managing state fiscal matters through the appropriations process . . . .’” Id. (quoting

TEX. GOV’T CODE ANN. § 311.034 (Vernon Supp. 2009)). “Subjecting the government to

liability may hamper governmental functions by shifting tax resources away from their intended

purposes toward defending lawsuits and paying judgments.” Id. “Accordingly, the Legislature

is better suited than the courts to weigh the conflicting public policies associated with waiving

immunity and exposing the government to increased liability, the burden of which the general

public must ultimately bear.” Id.

       The Texas Tort Claims Act provides a limited waiver of immunity from certain suits

against governmental entities, including suits alleging liability arising from the condition or use

of tangible personal property. Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 655-56. After the

Texas Tort Claims Act was enacted, plaintiffs often sought to avoid its requirements and

damages caps by suing the employees of the governmental entity instead of the entity. Id. at 656.



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“To prevent such circumvention, and to protect governmental employees, the Legislature created

an election-of-remedies provision.”      Id.   As originally enacted, section 101.106, entitled

“Employees Not Liable After Settlement or Judgment,” provided:

               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.


Id. (citing prior version of statute). “Employees were thus afforded some protection when

claims against the governmental unit were reduced to judgment or settled, but there was nothing

to prevent a plaintiff from pursuing alternative theories against both the employee and the

governmental unit through trial or other final resolution.” Id.

       In 2003, as part of a comprehensive effort to reform the tort system, the Legislature

amended section 101.106. Id. That section, entitled “Election of Remedies,” now provides:

               (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.

               (b) The filing of a suit against any employee of a governmental unit
       constitutes an irrevocable election by the plaintiff and immediately and forever
       bars any suit or recovery by the plaintiff against the governmental unit regarding
       the same subject matter unless the governmental unit consents.

              (c) The settlement of a claim arising under this chapter shall immediately
       and forever bar the claimant from any suit or recovery from any employee of the
       same governmental unit regarding the same subject matter.

               (d) A judgment against an employee of a governmental unit shall
       immediately and forever bar the party obtaining the judgment from any suit
       against or recovery from the governmental unit.

              (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.




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               (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.


TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (Vernon 2005). “The revision’s apparent

purpose was 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, thereby reducing the resources that the government and

its employees must use in defending redundant litigation and alternative theories of recovery.”

Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 657. “By requiring a plaintiff to make an

irrevocable election at the time suit is filed between suing the governmental unit under the Tort

Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for

trial and reduces delay and duplicative litigation costs.” Id. “Because the decision regarding

whom to sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit

and carefully consider whether to seek relief from the governmental unit or from the employee

individually.” Id.

       In amending section 101.106, the Legislature intended to reduce the delay and expense

associated with allowing plaintiffs to plead alternative theories against both a governmental unit

and its employee. Id. Thus, the plaintiff must make an irrevocable election at the time suit is

filed. Id. If the plaintiff files suit against the governmental unit, suit against the employee

regarding the same subject matter is forever barred. TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.106(a) (Vernon 2005). If the plaintiff files suit against the employee, suit against the



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governmental unit regarding the same subject matter is forever barred unless the governmental

unit consents. Id. at § 101.106(b).

         Because section 101.106 strongly favors the dismissal of the governmental employee, see

Waxahachie Ind. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005, pet.

denied), different rules apply if the plaintiff refuses to make the irrevocable election by suing one

party and instead sues both the employee and the governmental unit. In that situation, dismissal

of the employee is mandatory if the governmental unit files a motion seeking the dismissal of the

employee. Id. at § 101.106(e). If the employee files a motion seeking dismissal, however, the

plaintiff retains control over the election of whether to pursue the claim against the employee or

the governmental unit; however, the plaintiff must decide which party to continue pursuing

within thirty days. See id. at § 101.106(f). If the plaintiff decides to continue the suit against the

employee, the plaintiff need not take any action, and the employee’s motion can be granted only

if the employee proves that his conduct was within the general scope of his employment and that

the suit could have been brought against the governmental unit. Briggs, 262 S.W.3d at 394. By

pursuing the claim against the employee, however, the plaintiff is forever barred from pursuing

the claim against the governmental unit. 2 Id. On the other hand, if the plaintiff decides to

continue the suit against the governmental unit, the plaintiff must file amended pleadings both



2
  In a letter of additional citations, the Eells quote the following sentence from an opinion from one of our sister
courts, “The plaintiff is protected against a subsequent dismissal of the governmental employer by putting the
employee to his burden of demonstrating that suit ‘could have been brought under this chapter’ against the
governmental employer before the employee obtains a dismissal order. See Phillips, 187 S.W.3d at 675.” Hintz v.
Lally, 305 S.W.3d 761, 769 (Tex. App.—Houston [14th Dist.] 2009, pet. filed). We initially note that the quoted
language is dicta since the decision in Hintz was based on section 101.106(a). Hintz, 305 S.W.3d at 768-771. In
addition, the only authority cited to support the proposition that the plaintiff is “protected against a subsequent
dismissal of the governmental employer” is Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex. App.—Houston [14th
Dist.] 2006, no pet.). In Phillips, however, the trial court denied the employees’ motion to dismiss, and the Houston
court affirmed, holding the employees did not show the lawsuit could have been brought against the governmental
employer. 187 S.W.3d at 677. Because the governmental employer was never a party to the lawsuit, it is difficult to
understand how the Hintz court construed the decision in Phillips as addressing the protection of the plaintiff against
the dismissal of the governmental employer.

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dismissing the employee and naming the governmental unit as the defendant within thirty days.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (Vernon 2005).

       The Eells argue that requiring the plaintiff to make this decision before a trial court rules

on the employee’s motion to dismiss leads to an absurd result because the employee has the

burden of proving the two prerequisites to dismissal: (1) that the employee was within the scope

of his employment; and (2) that the suit could have been brought against the governmental unit.

Although we certainly understand the Eells’ frustration given the difficulties faced in

determining whether a claim involves the use of tangible personal property, we cannot agree that

the language of the statute leads to an absurd result. Instead, the result appears to be the result

intended by the “crystal clear” and unambiguous language used by the Legislature in section

101.106(f). Villasan v. O’Rourke, 166 S.W.3d 752, 759 (Tex. App.—Beaumont 2005, pet.

denied). By placing a thirty-day deadline on the ability of the plaintiff to make a decision

regarding which party to pursue after an employee files a motion to dismiss, the Legislature

clearly did not intend to allow a plaintiff to await a trial court’s ruling before making that

decision. Although an argument could be made that allowing the plaintiff to await the trial

court’s ruling would be more just, imposing the deadline does not lead to an absurd result in the

overall context of the statute. Therefore, any argument regarding language that might be more

just would have to be directed to the Legislature, not the judiciary.

                                           CONCLUSION

       While we recognize that the Legislature may be “better suited than the courts to weigh

the conflicting policy issues associated with waiving immunity,” see Texas Nat. Res. Conserv.

Comm’n, 74 S.W.3d at 854, this appeal illustrates the challenges faced by plaintiffs when they

bring a medical negligence claim against an employee of a governmental entity. Although the



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statute refers to an “Election of Remedies,” plaintiffs, no doubt, believe they are left without any

remedy. Constrained by the language of section 101.106, we reverse the trial court’s order and

render judgment dismissing the underlying lawsuit.

                                                  Catherine Stone, Chief Justice




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