542 S.W.3d 530
Tex.2017Background
- Dr. Tomas G. Rios, a first‑year resident, sued the University of Texas Health Science Center at Houston (the Center) and four faculty physicians (the Doctors) for torts including defamation and tortious interference after performance disputes and internal complaints.
- Rios originally pleaded tort claims against both the Center and the Doctors (premised on the Doctors being Center employees) and later amended to drop tort claims against the Center, leaving only tort claims against the Doctors and adding a § 1983 claim.
- The Attorney General, representing the Center and Doctors, filed a motion under Tex. Civ. Prac. & Rem. Code § 101.106(e) seeking immediate dismissal of the Doctors because the plaintiff had sued both a governmental unit and its employees.
- The trial court denied dismissal of the tort claims against the Doctors; the court of appeals was divided on whether the amended pleadings or amended motion affected the right to dismissal.
- The Texas Supreme Court considered (1) whether the Doctors were Center employees and (2) whether § 101.106(e) dismissal rights accrued on filing and survived subsequent amendments to pleadings or motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the Doctors employees of the Center? | Rios: status uncertain; they might be independent contractors or acting individually. | Defs: pleadings and Attorney General representation show they were Center employees. | Held: The original petition and defendants’ filings constitute judicial admissions that the Doctors were Center employees. |
| Were the alleged torts within the general scope of employment? | Rios: Doctors acted for personal motives, outside scope. | Defs: alleged statements arose from faculty duties related to residency program. | Held: Objective scope‑of‑employment test controls; alleged conduct arose from job duties and is within scope. |
| When does the employee’s statutory right to dismissal under § 101.106(e) accrue? | Rios: dismissal right depends on current pleadings; after amendment no longer applies. | Defs: right accrues upon filing of governmental unit’s motion and is not defeated by later amendments. | Held: Right to dismissal accrues when the governmental unit files its motion and is not lost by later pleadings. |
| Does amending the governmental unit’s motion to dismiss nullify the original motion and the accrued right? | Rios: under Tex. R. Civ. P. 65 an amended instrument supersedes and cancels the prior motion. | Defs: filing (not content) triggers § 101.106(e); statute controls over any conflicting rule. | Held: Amending the motion does not vitiate the accrual of the dismissal right; the statute controls over any contrary procedural rule. |
Key Cases Cited
- Laverie v. Wetherbe, 517 S.W.3d 748 (Tex. 2017) (scope‑of‑employment inquiry is objective; subjective motive does not prevent dismissal under election‑of‑remedies provision)
- Mission Consol. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (§ 101.106 requires an irrevocable election at filing between suing the governmental unit or the employee)
- Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411 (Tex. 2015) (a nonsuit after a motion to dismiss does not defeat the movant’s right to a ruling under § 101.106)
- Austin State Hosp. v. Graham, 347 S.W.3d 298 (Tex. 2011) (nonsuit cannot prejudice an adverse party’s right to be heard on pending affirmative relief)