Texas Department of Aging & Disability Services v. Cannon, 453 S.W.3d 411

Plaintiff Mary Cannon sued the Texas Department of Aging and Disability Services (the Department) and three employees after her son, a resident at Brenham State School, died following a physical restraint by employees.
Original petition alleged state-law negligence claims against both the Department and the employees for conduct within the scope of employment.
The Department filed a motion to dismiss the employees under Tex. Civ. Prac. & Rem. Code § 101.106(e) (Tort Claims Act election-of-remedies provision).
While that motion was pending, Cannon amended to drop common-law claims and added 42 U.S.C. § 1983 claims against the employees in their individual capacities.
Trial court denied the § 101.106(e) motion as to the § 1983 claims; the court of appeals affirmed that denial but held the Department immune on the state-law claims. The Department sought review on whether § 101.106(e) required dismissal of subsequently pleaded § 1983 claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 101.106(e) requires dismissal of claims not brought "under" the Tort Claims Act (i.e., § 1983 claims) when the governmental unit files a § 101.106(e) motion	Cannon: § 1983 claims are independent of the Tort Claims Act and may be added while a § 101.106(e) motion is pending; the court must consider such amended pleadings	Department: Filing a § 101.106(e) motion "immediately" perfects the employees’ right to dismissal such that later amendments cannot defeat that right	Held: § 1983 claims are not "under" the Tort Claims Act; a plaintiff may amend pleadings consistent with procedural rules to add non-Tort-Claims-Act claims while a § 101.106(e) motion is pending, and the court may consider them when ruling on the motion

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (defines scope of "under this chapter" and discusses the election-of-remedies scheme)
Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (tort theories against governmental units are treated as brought under the Tort Claims Act for § 101.106 purposes)
Austin State Hosp. v. Graham, 347 S.W.3d 298 (Tex. 2011) (pending § 101.106(e) motion remains adjudicable despite plaintiff nonsuit; discusses interplay of procedural rules)
Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013) (explains purpose of §§ 101.106(e) and (f) to avoid duplicative employee defense burdens)
Haywood v. Drown, 556 U.S. 729 (U.S. 2009) (state courts may decline federal claims only in limited circumstances; cited regarding state-court adjudication of federal causes of action)