Tex. Dep't of Aging & Disability Servs. v. Cannon

• Decision Date: 09 January 2015
• Docket Number: No. 12–0830,12–0830
• Citation: 453 S.W.3d 411
• Parties: Texas Department of Aging and Disability Services a/k/a Brenham State School, Anthony V. Watson, Dwane B. Hubbard, and Aretha L. Turner, Petitioners, v. Mary Cannon, Individually and as Representative of the Estate of Patrick Tate Dyess, Deceased, Respondent
• Court: Texas Supreme Court

453 S.W.3d 411

Texas Department of Aging and Disability Services a/k/a Brenham State School, Anthony V. Watson, Dwane B. Hubbard, and Aretha L. Turner, Petitioners

v.Mary Cannon, Individually and as Representative of the Estate of Patrick Tate Dyess, Deceased, Respondent

No. 12–0830

Supreme Court of Texas.

Argued September 16, 2014

OPINION DELIVERED: January 9, 2015

Greg W. Abbott, Attorney General, Bridget Lynn McKinley, Assistant Attorney General, Daniel T. Hodge, First Asst. Attorney General, Jonathan F. Mitchell, Solicitor General, Douglas D. Geyser, Assistant Solicitor General, Andrew Oldham, Lawrence J.C. VanDyke, Office of the Attorney General, Austin, for Petitioner.

Bennie D. Rush, Law Offices of Bennie D. Rush, Huntsville, Gaines West, Jennifer D. Jasper, Robert George II, West Webb Allbritton & Gentry PC, College Station, for Respondent.

Opinion

JUSTICE LEHRMANN delivered the opinion of the Court.

In conjunction with the Texas Tort Claims Act's limited waiver of governmental immunity, section 101.106 of the Act gives a measure of protection to government employees who are sued in tort for conduct within the scope of their employment. These employees are entitled to dismissal on proper motion, and the suit must proceed against the government or not at all. In this case, the plaintiff sued a governmental unit and several of its employees for negligence. In response, the unit filed a motion to dismiss its employees under subsection 101.106(e), which provides that “[i]f 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.” Tex. Civ. Prac. & Rem. Code § 101.106(e). Before the trial court ruled on the motion, the plaintiff filed an amended petition adding federal claims against the employees pursuant to 42 U.S.C. § 1983. Although such claims are not brought “under” the Tort Claims Act, the government argues that they are irrelevant to the subsection (e) motion because the employees' right to dismissal was perfected the moment the motion was filed. However, this position is supported by neither the Act's text nor its purpose. Subsection 101.106(e) of the Tort Claims Act does not contemplate dismissal of claims asserted independently of that Act. We hold that the trial court properly denied the motion to dismiss, and we affirm the court of appeals' judgment.

I. Background

Mary Cannon's son, Patrick Tate Dyess, was a resident of Brenham State School,¹ a state-supported living center operated by the Texas Department of Aging and Disability Services (the Department). Anthony V. Watson, Dwane B. Hubbard,² and Aretha L. Turner (the Employees) were employed by the School. The case arises out of an incident that occurred on September 12, 2003, in which Dyess died after being physically restrained by the Employees.

According to the School's investigation report,³ Dyess began engaging in disruptive behavior shortly before dinner on that day. Turner sat at a desk in the living room documenting his behavior while other employees escorted Dyess to his bedroom. The report states that when Dyess returned to the living room, he attacked Turner, punching her in the mouth and then grabbing her blouse and her hair. Another employee, Randy Nunn, came to Turner's aid, and all three fell to the floor when Dyess tripped on a piece of furniture. Watson then placed Dyess in a physical hold while Hubbard and Turner restrained his legs. Eventually, Dyess stated that he had calmed down, and the Employees agreed to release him. However, when the Employees stood up, Dyess became nonresponsive. After Nunn checked Dyess's vital signs, Turner and Watson began to perform CPR while other workers called emergency services. Dyess later died, and his mother brought suit individually and on behalf of his estate.

Cannon sued both the Department and the Employees, alleging in her original petition that the Department was negligent in hiring, training, and supervising its employees and that the Employees negligently used excessive force to discipline Dyess. Following a protracted venue dispute resulting in the case's transfer from Grimes to Washington County, the Department filed a plea to the jurisdiction, asserting governmental immunity. The Department and the Employees also filed motions to dismiss the Employees pursuant to subsections 101.106(a) and (e) of the Texas Tort Claims Act.

While the motions to dismiss were pending, Cannon amended her petition to add claims under 42 U.S.C. § 1983 for violations of Dyess's Fourth and Fourteenth Amendment constitutional rights against both the Department and the Employees individually. In supplemental briefing on the motions to dismiss filed after Cannon amended her petition, the defendants focused solely on subsection (e) as a basis for the Employees' dismissal. Cannon subsequently agreed to dismiss all common-law tort claims, and the trial court dismissed those claims with prejudice. With only section 1983 claims remaining against the defendants, the trial court denied the Department's plea to the jurisdiction and denied the motions to dismiss the Employees. The Department and the Employees filed an interlocutory appeal. Tex. Civ. Prac. & Rem. Code § 51.014(a)(5), (8) ; Austin State Hosp. v. Graham, 347 S.W.3d 298, 300–01 (Tex. 2011) (per curiam).⁴

The court of appeals reversed the trial court's order denying the Department's plea to the jurisdiction, holding that the Department's immunity from suit had not been waived.⁵ 383 S.W.3d 571, 575–76. However, the court of appeals affirmed the trial court's order denying the motions to dismiss the Employees under subsection 101.106(e), remanding the case to the trial court for further proceedings on Cannon's section 1983 claims. The court of appeals disagreed with the Department's contention that the section 1983 claims were not properly “before the court” as a result of the Department's subsection (e) motion. Id. at 577–80. More specifically, the court of appeals rejected the Department's argument that, because subsection (e) provides that governmental employees shall be dismissed “immediately” upon the filing of the governmental unit's motion, the Employees were effectively dismissed at the time the motion was filed. Id. at 578. Instead, the court held that the Employees remained parties to the suit until the trial court signed an order dismissing them pursuant to subsection (e), permitting Cannon to amend her petition to assert the section 1983 claims. Id. at 578–80.

The court of appeals did not address whether the Employees were entitled to dismissal under subsection 101.106(a),⁶ noting that the defendants had not argued subsection (a) as a ground for dismissal of the section 1983 claims in the trial court. Id. at 577, 580. We granted the Department and the Employees' petition for review, which presents as its sole issue whether the trial court erred in denying the Department's motion to dismiss under subsection 101.106(e).⁷

II. Analysis

A. The Tort Claims Act and the Election-of-Remedies Provision

The Tort Claims Act, contained in chapter 101 of the Texas Civil Practice and Remedies Code, provides a limited waiver of immunity for tort suits against the government. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). The Legislature originally enacted section 101.106 of the Act, now entitled “Election of Remedies,” in response to plaintiffs' attempts “to avoid the Act's damages cap or other strictures by suing governmental employees” rather than the governmental unit itself.⁸ Id. at 656.

The current version of the provision serves the additional purpose of easing the burden placed on governmental units and their employees in defending duplicative claims, in part by “favor[ing] the expedient dismissal of ... employees when suit should have been brought against the government” under the Act. Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013). Subsections (e) and (f) of the statute provide mechanisms for the dismissal of these employees:

(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. 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 § 101.106(e), (f). We have held that tort claims against the government are (or could be) brought “under this chapter” regardless of whether the Tort Claims Act waives immunity for those claims. Franka v. Velasquez, 332 S.W.3d 367, 379–80 (Tex. 2011) ; Garcia, 253 S.W.3d at 659 (“Because the Tort Claims Act 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.”). However, claims asserted pursuant to independent statutory waivers of immunity are not brought “under” the Act. Garcia, 253 S.W.3d at 659.

B. Application of Subsection 101.106(e)

The original petition in this suit, which was the live pleading at the time the Department filed its subsection (e) motion, asserted only state common-law tort theories of recovery against both the Department and the Employees for conduct within the scope of their employment. Cannon disputes neither that these claims were brought...