Franka MD v. Velasquez, No. 07-0131 332 S.W.3d 367 (Tex. Jan 21, 2011)(Hecht)(suit against
governmental employee vs. government entity)
Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a
government employee acting within the general scope of his employment must be
dismissed “if it could have been brought under this chapter [that is, under the Act]
against the governmental unit”.1 The court of appeals construed the quoted clause to
mean that, to be entitled to dismissal, the employee must establish that governmental
immunity from suit has been waived by the Act.2 But as we stated in Mission
Consolidated Independent School District v. Garcia: “we have never interpreted ‘under
this chapter’ to only encompass tort claims for which the Tort Claims Act waives
immunity.”3 Rather, “all [common-law] tort theories alleged against a governmental unit
. . . are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”4
Accordingly, we reverse the judgment of the court of appeals and remand the case to
the trial court for further proceedings.
[...] we hold that for section 101.106(f), suit “could have been brought” under the Act
against the government regardless of whether the Act waives immunity from suit. We
reverse the judgment of the court of appeals and remand to the trial court for further
proceedings.
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND
SARAGOSA ALANIZ, INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA MARIO
ALANIZ; from Bexar County; 4th district (04-06-00190-CV, 216 SW3d 409, 09-06-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice
Green, Justice Johnson, and Justice Willett joined. [28 page opinion in pdf]
Justice Medina delivered a dissenting opinion, in which Justice Lehrmann joined. [21-page opinion in pdf]
(Justice Guzman not sitting)
View Electronic Briefs 07-0131 FRANKA, M.D. and NAGAKRISHNA REDDY, M.D. v. VELASQUEZ
══════════════════════════════════════════════════════════════════════
Franka, M.D. v. Velasquez 332 S.W.3d 367 (Tex. 2011)(per curiam)
══════════════════════════════════════════════════════════════════════
Argued September 10, 2008
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice
Green, Justice Johnson, and Justice Willett joined.
Justice Medina filed a dissent, in which Justice Lehrmann joined.
Justice Guzman did not participate in the decision.
Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a government employee acting
within the general scope of his employment must be dismissed “if it could have been brought under this
chapter [that is, under the Act] against the governmental unit”.1 The court of appeals construed the quoted
clause to mean that, to be entitled to dismissal, the employee must establish that governmental immunity from
suit has been waived by the Act.2 But as we stated in Mission Consolidated Independent School District v.
Garcia: “we have never interpreted ‘under this chapter’ to only encompass tort claims for which the Tort Claims
Act waives immunity.”3 Rather, “all [common-law] tort theories alleged against a governmental unit . . . are
assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”4 Accordingly, we reverse the
judgment of the court of appeals and remand the case to the trial court for further proceedings.
I
Dr. John Christopher Franka and Dr. Nagakrishna Reddy, petitioners here, delivered S.M.A, the son of
Stacey Velasquez and Saragosa Alaniz, respondents, at University Hospital, a public teaching hospital owned
and operated by the Bexar County Hospital District, doing business as the University Health System.5 The
Hospital is staffed with medical faculty, residents, and students of the University of Texas Health Science
Center at San Antonio.6 Franka was a faculty member employed by the Health Science Center, and Reddy
was a resident in the Center’s program.
S.M.A.’s fetal heart rate had slowed, and Franka and Reddy thought it best to attempt a vaginal delivery
facilitated by a vacuum extractor, an instrument that attaches to the top of a baby’s head, helping move it
through the birth canal. The head appeared and the extractor was removed, but delivery of the baby’s front
shoulder was obstructed, a relatively infrequent but well-recognized obstetric emergency known as shoulder
dystocia. Franka and Reddy tried to free the baby’s shoulder with their hands, but just as it appeared, Reddy
heard a snap that she knew meant a bone had broken. The baby’s left clavicle was fractured, and he suffered
injury to his brachial plexus, requiring surgery several months later.
Velasquez and Alaniz, individually and on behalf of S.M.A., sued Franka and Reddy but not the Center (or
the District or Hospital). Franka moved to dismiss the action under section 101.106(f) of the Texas Tort Claims
Act, which states:
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.7
In their response, plaintiffs acknowledged that Franka was employed by a governmental unit, the Center, and
that their suit was based on conduct within the general scope of his employment. But, they argued, to invoke
section 101.106(f), Franka had the burden of proving that suit “could have been brought under” the Act, and
to discharge that burden, he had to offer evidence that the Center’s immunity was waived by the Act. The only
basis for such a waiver, they continued, was that their injuries were “caused by a condition or use of tangible
personal . . . property” under section 101.021 of the Act,8 and “[n]othing appears in this record to implicate the
use or misuse of tangible personal property in causing the orthopaedic and neurological injuries to baby [S.M.
A.].” Plaintiffs suggested that the Center stipulate that its immunity from suit was waived. Failing that, they
urged that Franka’s motion be denied.
Apparently the trial court never ruled on Franka’s motion. More than a year passed, and defendants each
filed a motion for summary judgment based on section 101.106(f), differing only as to the circumstances of
their employment. Each argued that “suit against [them] could have been brought against the [Center]
because the conduct of [defendants] on which the allegations are based involved the use of tangible property,
namely the vacuum extractor”. Each attached an affidavit stating that S.M.A.’s “treatment included the use of
tangible property, including a vacuum extractor.” And each requested the court to order that “unless [plaintiffs]
substitute [the Center] as the defendant, the case will be dismissed in thirty days.” Plaintiffs responded that
defendants had failed to establish that suit could have been brought against the Center because there was
“no evidence that the condition or use of tangible property, the vacuum extractor, was the instrumentality of the
harm, and therefore no waiver of immunity”. Plaintiffs also argued that defendants had not established that
they were government employees as defined by the Act.
The trial court denied defendants’ motions, and they appealed.9 The court of appeals affirmed, holding that
a government employee is not entitled to dismissal under section 101.106(f) until he has established that his
employer’s immunity from suit has been waived by the Act.10 In its view, the argument that
the raising of a fact issue as to whether the suit “could have been brought under this chapter against the
governmental unit” should be sufficient to enable a trial court to dismiss employees under section 101.106(f) . .
. is untenable in view of its potential result. If the employees were dismissed and immunity was ultimately held
not to have been waived, the plaintiffs would be left without a remedy. Just as a plea to the jurisdiction cannot
be granted, thereby resulting in the dismissal of a lawsuit, when a fact issue exists, a trial court also is not
permitted to dismiss employees from a lawsuit under section 101.106(f) if a fact issue exists with regard to
whether the governmental unit’s immunity is waived. When such a fact issue exists, the employees have failed
to establish that the suit “could have been [brought] under this chapter against the governmental unit.”11
We granted defendants’ petition for review.12
II
A threshold issue is whether Franka and Reddy are “employee[s] of a governmental unit” to whom section
101.106(f) applies. In this Court, plaintiffs do not contest Franka’s employee status13 because section 101.001
(2) of the Act defines an employee as “a person . . . in the paid service of a governmental unit . . . [but not] an
independent contractor . . . or a person who performs tasks the details of which the governmental unit does
not have the legal right to control.”14 The Center is a governmental unit,15 and Franka was a paid member of
its faculty.16
Reddy, however, was a resident under a three-party “Graduate Medical Education Agreement”, in which
she, the Center, and the District, also a governmental unit,17 agreed that the District would compensate her
but would have no legal right to control the details of her work.18 Because Reddy was not both paid by and
subject to the legal control of the same governmental unit,19 she states that she “does not claim to be a §
101.001(2) employee.”20
Instead, Reddy argues that section 312.007(a) of the Texas Health & Safety Code makes her a government
employee for purposes of section 101.106(f) of the Act. Section 312.007(a) states:
A medical and dental unit, supported medical or dental school, or coordinating entity is a state agency, and a
director, trustee, officer, intern, resident, fellow, faculty member, or other associated health care professional
or employee of a medical and dental unit, supported medical or dental school, or coordinating entity is an
employee of a state agency for purposes of . . . determining the liability, if any, of the person for the person’s
acts or omissions while engaged in the coordinated or cooperative activities of the unit, school, or entity.21
Reddy was a resident of a “medical unit”.22 Recently, in Klein v. Hernandez, we held that a resident covered
by this section is a government employee for purposes of determining liability under the Act.23 Since a liability
determination may depend on whether the defendant is immune, we agree with Reddy that section 312.007(a),
if applicable, would make her a government employee under section 101.106(f).
But plaintiffs argue that Reddy has failed to show that section 312.007(a) applies in this case. Section
312.003 states:
This chapter [including section 312.007] applies only if a medical and dental unit and a supported medical or
dental school agree, either directly or through a coordinating entity, to provide or cause to be provided
medical, dental, or other patient care or services or to perform or cause to be performed medical, dental, or
clinical education, training, or research activities in a coordinated or cooperative manner in a public hospital.24
Reddy acknowledges that the applicability of section 312.007(a) is conditioned on the existence of an
agreement prescribed by section 312.003, and she argues that the “Graduate Medical Education Agreement”
is such an agreement on its face. But the agreement does not include a supported medical or dental school,
and even if that is not required, as one court has held,25 an issue we do not decide, there is nothing in the
record to indicate whether or how the agreement furthers the purpose of chapter 312, which is
to authorize coordination and cooperation between medical and dental units, supported medical or dental
schools, and public hospitals and to remove impediments to that coordination and cooperation in order to:
(1) enhance the education of students, interns, residents, and fellows attending a medical and dental unit
or a supported medical or dental school;
(2) enhance patient care; and
(3) avoid any waste of public money.26
Further, section 312.004 authorizes medical and dental units, medical and dental schools, coordinating
entities, and public hospitals to contract among themselves for, among other things, “the clinical education of .
. . residents”,27 but section 312.005(a) provides that “[t]o be effective, a contract under Section 312.004 must
be submitted to the [Texas Board of Health].”28 Reddy argues that an agreement that satisfies section
312.003 need not be made under section 312.004, and therefore need not be approved by the Texas Board
of Health, but she cites no authority, and nothing in the statutory text supports her argument. The record does
not reflect whether the “Graduate Medical Education Agreement”, or even the program it facilitated, was
approved by the Board; for all we know, the program could have been disapproved by the Board.
In sum, we cannot determine from the summary judgment record that Reddy established as a matter of law
that she was an employee of a governmental unit for purposes of section 101.l06(f).
III
Franka, to whom section 101.106(f) does apply, was entitled to dismissal only if the plaintiffs’ suit “could
have been brought under [the Act] against [the Center]”.29 The court of appeals held that the plaintiffs’ suit
could not have been brought under the Act unless, as a matter of law, the Act waived the Center’s immunity
from suit.30 We disagree. We begin by reviewing our cases, which firmly establish the rule that any tort claim
against the government is brought “under” the Act for purposes of section 101.106, even if the Act does not
waive immunity. Next, we show that to except section 101.106(f) from this rule would be inconsistent with other
provisions of the Act and would create disparities in its operation. We then consider the practical problems that
would result from the court of appeals’ construction. Finally, we consider the policies that underlie the statute
as we construe it.
A
We first considered whether a suit for which the Act has not waived immunity is nevertheless “under” the Act
for purposes of section 101.106 in Newman v. Obersteller.31 At that time, section 101.106 stated simply:
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.32
A high school student and his parents sued his coach and the school district for intentional infliction of
emotional distress,33 alleging that the coach and other school employees had berated, harassed, and
intimidated him, once locking him in a locker room by himself.34 The trial court dismissed the case against the
school district based on its assertion of immunity, presumably because the Act does not waive immunity for
intentional torts,35 but refused to dismiss the case against the coach.36 The court of appeals dismissed the
coach’s interlocutory appeal for want of jurisdiction, holding that section 101.106 was not a grant of immunity to
government employees, the denial of which was subject to interlocutory appeal, but merely a procedural
limitation.37 We reversed, holding that the statute’s “bar” of an action against a government employee in effect
conferred immunity on the employee.38 We also rendered judgment against the plaintiffs, holding that the
dismissal of their claim against the school district barred their action against the coach.39 The rule of Newman
is that a tort claim against the government is “under” the Act even though the Act does not waive immunity from
suit.
We followed the rule in Dallas County Mental Health and Mental Retardation v. Bossley40 and again in
Harris County v. Sykes.41 In Bossley, the plaintiffs sued a mental health treatment facility and its employees for
allowing their son to escape, resulting in his death.42 The trial court dismissed the case, holding that the
facility was immune from suit and that suit against the employees was consequently barred by section 101.106,
but the court of appeals reversed.43 We held that the trial court was correct.44 In Sykes, the plaintiff sued the
county and its jailor, alleging that while incarcerated in the county jail, he had negligently been assigned a bed
near an inmate with tuberculosis.45 The trial court dismissed the case as the trial court in Bossley had done,
but the court of appeals reversed with respect to the jailor.46 We held that the dismissal of the county barred
suit against the jailor.47
We elaborated on the rule in Mission Consolidated Independent School District v. Garcia,48 construing a
new version of section 101.106, completely revised and greatly expanded in 2003 by House Bill 4, a
comprehensive tort reform measure.49 The revised provision—in which “under this chapter” is used in
subsections, (a), (c), (e), and (f)—reads as follows:
(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 against 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.
(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.50
In Mission, three former employees of the school district sued the district and its superintendent: the district
for wrongful termination in violation of the Texas Commission on Human Rights Act,51 both the district and
superintendent for intentional infliction of emotional distress, and the superintendent for defamation, fraud, and
negligent misrepresentation.52 The district sought dismissal under section 101.106(b), asserting that the
plaintiffs’ suit against the superintendent barred suit against it on the same claims without its consent.53 The
trial court refused to dismiss the case against the district, and the court of appeals affirmed.54
The plaintiffs argued that because they had sued both the district and the superintendent, section 101.106
(e) applied, rather than 101.106(b), and because the Act did not waive the district’s immunity from suit on
either of their claims against it, those claims were not “under” the Act, and therefore dismissal of the
superintendent was not required.55 We concluded that the plaintiffs’ argument misconstrued subsection (e),
and that correctly construed, the end result under either subsection (b) or (e) would be the same. We analyzed
subsection (e) as follows:
The court of appeals reasoned that none of Garcia’s claims were brought “under this chapter” because they
did not fit within the Tort Claims Act’s waiver, and therefore section 101.106(e) did not apply. However, we
have never interpreted “under this chapter” to only encompass tort claims for which the Tort Claims Act waives
immunity. To the contrary, in Newman v. Obersteller, we held that former section 101.106’s limiting phrase
“under this chapter” operated to bar an intentional tort claim against an employee after a final judgment on a
claim involving the same subject matter had been rendered against the governmental unit, even though the
Act by its terms expressly excluded intentional torts from the scope of the Act’s immunity waiver. See also, e.g.,
Sykes, 136 S.W.3d at 640 (applying section 101.106 to bar the plaintiff’s claim against a governmental
employee even though immunity was not waived under the Tort Claims Act for suit against the governmental
unit); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998)
(dismissing suit against employee when both the employee and the governmental unit were sued based on
negligence theories that were not within the Act’s limited waiver). Although these cases construed the prior
version of section 101.106, there is nothing in the amended version that would indicate a narrower application
of the phrase “under this chapter” was intended. 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. See Newman, 960 S.W.2d at 622.
Having concluded that Garcia’s tort claims are not excluded from section 101.106(e)’s application, we examine
subsection (e)’s effect if it were applied to this case. Under subsection (e), Dyer would be entitled to dismissal
of Garcia’s suit against him upon the ISD’s filing of a motion. The ISD has not sought Dyer’s dismissal,
however, and Dyer has not sought his own dismissal under subsection (f). But if the ISD had obtained Dyer’s
dismissal from the suit under subsection (e), all of Garcia’s tort claims against the ISD would be barred
because, as we have said, all tort theories of recovery alleged against a governmental unit are presumed to be
“under the [Tort Claims Act].” Garcia’s suit under the TCHRA, however, is not “a suit filed under this chapter”
and would not come within subsection (e)’s purview because the Tort Claims Act expressly provides that the
remedies it authorizes “are in addition to any other legal remedies,” and the TCHRA provides a statutory
remedy for unlawful discrimination. Id. § 101.003. Claims against the government brought pursuant to waivers
of sovereign immunity that exist apart from the Tort Claims Act are not brought “under [the Tort Claims Act].” In
sum, if subsection (e) were applied to Garcia’s suit and Dyer was dismissed, the only claim against the ISD that
would survive would be Garcia’s TCHRA claim.56
Likewise, only the TCHRA claim survived under section 101.106(b). Because subsection (b) does not
contain the “under this chapter” limitation, any suit against a government employee bars suit “against the
governmental unit regarding the same subject matter unless the governmental unit consents”.57 While the
school district had not itself consented to be sued by the plaintiffs, the TCHRA provided consent for wrongful
termination claims, because “the government conveys its consent to suit . . . through the Constitution and state
laws.”58 “Thus,” we concluded, “the Legislature, on behalf of the [school district], has consented to suits
brought under the TCHRA, provided the procedures outlined in the statute have been met.”59
The rule that a tort suit against the government, as distinct from a statutory claim, is brought “under” the Act
for purposes of section 101.106, even though the Act does not waive immunity, is firmly grounded in our
cases. More importantly, as Mission illustrates, with the 2003 revisions to section 101.106, the rule has
become necessary for harmonizing the several subsections of the statute.
B
Although we have not applied the same rule to section 101.106(f) before today, the statutory text suggests
we should. The revised statute lifts the phrase “under this chapter” from the prior statute and repeats it four
times. The prior statute referred to “an action or settlement of a claim under this chapter”. The current version
refers to “[t]he filing of a suit under this chapter” in subsection (a), “[t]he settlement of a claim arising under this
chapter” in subsection (c), “a suit . . . filed under this chapter” in subsection (e), and “a suit [that] . . . could
have been brought under this chapter” in subsection (f).60 The text gives no hint that any these references
has a different meaning; to the contrary, the repetition strongly suggests that the meaning throughout is the
same.
Two other sections of the Act also make plain that suits brought “under” the Act include those for which
immunity is not waived. Section 101.103(a) requires the attorney general to “defend each action brought under
this chapter”.61 One would hardly suppose that the attorney general would be relieved of this responsibility
whenever he thought, as he regularly does, his client’s immunity remained intact despite the plaintiff’s
allegations. Section 101.102, entitled “Commencement of Suit”, provides that “[a] suit under this chapter shall
be brought in state court in the county in which the cause of action or a part of the cause of action arises.”62 If
this applies only to suits for which immunity is waived, can suits for which immunity is not waived, of which there
are many, be brought anywhere? One would hardly think so. These examples serve to illustrate the obvious:
that suit is brought under the Act when it is filed, not when waiver of immunity by the Act is established.
Construing subsection (f) as the court of appeals did in this case is not only inconsistent with Mission and
the Act as a whole, it creates at least a disparity, if not an absurdity, in the statute’s operation. If a plaintiff sues
only a government employee and not the government, then under subsection (f), according to the court of
appeals, the employee need not be dismissed unless a waiver of the government’s immunity for the claim is
established. But if a plaintiff sues both the government and its employee, then under subsection (e), according
to Mission, the employee must be dismissed, even if the government’s immunity is not waived. There is no
reason why an employee should be entitled to dismissal if sued with the government but not if sued alone.
For consistency both within section 101.106 and throughout the Act, subsection (f) must be governed by
the same rule Mission applied in construing subsection (e).
C
The court of appeals’ construction of section 101.106(f) poses serious practical problems.
Requiring a government employee to prove that his employer’s immunity from suit has been waived in order
to obtain dismissal forces the parties to take unexpected positions with collateral risks. Ordinarily, one would
expect a government employee to support his employer’s assertion of immunity. Only a perverse statute would
incentivize conflict between the two, and there is nothing to indicate that the Legislature had any such intent.
The plaintiff, too, is forced into an awkward position, arguing that immunity was not waived, and thereby cutting
off that path to liability and recovery.
Moreover, the employee, the plaintiff, and the employer could all be whipsawed by the trial court’s ruling
that immunity was waived. Since the government was not a party to the case at the time, it would not be bound
by the ruling and would be free to seek a redetermination and to appeal. Exhibit A in support of its arguments
that immunity was not waived would be the plaintiff’s own assertions. And in response, the plaintiff would cite
the employee. The immunity issue would thus be encased in confusion and cynicism.
The predicament for the plaintiff would be even trickier. He would be required to decide within thirty days of
the employee’s motion to dismiss whether to acquiesce and sue the government instead. Nothing in section
101.106(f) requires the trial court to rule on whether immunity was waived, either before or after the thirty-day
deadline. Even if the plaintiff obtained the trial court’s ruling before having to decide whether to dismiss the
employee, there would be no assurance that the ruling would be upheld on appeal, especially after the issue
was relitigated with the government. If the plaintiff refuses to dismiss the employee, he risks being faced with
the government’s stipulation that immunity was waived, after the deadline for suing the government has run. If
he dismisses the employee and sues the government, he has some advantage in being able to defend the
government’s assertion of immunity with its employee’s contrary statements, but he may not be able to prove
waiver, even with such statements. Thus, he will have traded a viable claim against the employee for a barred
claim against the government.
Section 101.106(f) leaves the timing of a motion to dismiss to the employee. Delay poses an additional
problem for the plaintiff. If he does not notify the government of his claim as required by section 101.101,
believing that he has a stronger claim against the employee actor, the government may wait until after the six-
month deadline for that notice and then stipulate that immunity was waived, leaving the plaintiff with no cause
of action at all. To avoid this result, the plaintiff may notify the government of his claim, but his doing so may be
taken as an indication of his position that immunity has been waived, undercutting any later argument that it
was not.
These problems, though thorny, may not always occur and may not be insuperable when they do, but they
arise at all only under the court of appeals’ construction of section 101.106(f). They do not exist if subsection
(f) is construed the same way Mission construed subsection (e). Properly construed, section 101.106(f)’s two
conditions are met in almost every negligence suit against a government employee: he acted within the
general scope of his employment,63 and suit could have been brought under the Act — that is, his claim is in
tort and not under another statute that independently waives immunity. In such cases, the suit “is considered to
be against the employee in the employee’s official capacity only”,64 and the plaintiff must promptly dismiss the
employee and sue the government instead. No party is forced into awkward or conflicting positions. The
immunity issue need not be determined until the governmental unit is in the suit and the issue can be fully
addressed.
This construction of section 101.106(f) does, however, foreclose suit against a government employee in his
individual capacity if he was acting within the scope of employment. This changes, among other things, the rule
in Kassen v. Hatley, which has allowed malpractice suits against physicians employed by the government, even
though acting within the scope of employment.65 Recovery for the negligence of a government physician
acting in the course of employment would be limited to that afforded under the Act. At least one participant in
the legislative process that resulted in the enactment of House Bill 4 has written that this change was precisely
the intent of the revisions to section 101.106.66 In any event, our construction of section 101.106 is compelled
by its text and by the rule of Mission, Sykes, Bossley, and Newman.67
D
Our construction of section 101.106 is also consistent with the Legislature’s purposes in enacting House Bill
4.
Under Texas law, a suit against a government employee in his official capacity is a suit against his
government employer68 with one exception: an action alleging that the employee acted ultra vires.69 With that
exception, an employee sued in his official capacity has the same governmental immunity, derivatively, as his
government employer.70 But public employees (like agents generally71) have always been individually liable
for their own torts, even when committed in the course of employment,72 and suit may be brought against a
government employee in his individual capacity.73 Generally, however, public employees may assert official
immunity74 “from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as
they are (3) acting within the scope of their authority.”75 Of course, determining whether actions and decisions
are discretionary “is admittedly problematic”.76 Importantly, for government employees with medical
responsibilities, we held in Kassen that government discretion does not include medical discretion.77 Thus,
official immunity does not protect a physician sued in his individual capacity from liability for medical decisions
and actions.
Before the Tort Claims Act was passed in 1969, if suit against the government was barred by immunity, a
plaintiff could sue and recover against a government employee-actor in his individual capacity even though,
were he sued for the same conduct in his official capacity, he would be shielded by derived governmental
immunity. The employee’s official immunity would not bar suit or recovery if his conduct were non-discretionary,
medical, or not done in good faith. Under the Act, a waiver of governmental immunity does not preclude an
assertion of official immunity,78 but a successful assertion of official immunity results in a waiver of
governmental immunity.79
In waiving governmental immunity, the Legislature correspondingly sought to discourage or prevent
recovery against an employee. As already discussed, the original enactment of the Act in 1969 contained a
provision substantively identical to section 101.106 before its revision in 2003. That provision was strikingly
similar to language in the 1949 Federal Tort Claims Act.80 The federal provision was amended in 1961 to
make the FTCA the exclusive remedy for motor vehicle accidents involving federal employees acting within the
scope of their employment,81 but through the years, judicial application of official immunity was not entirely
uniform.82 In 1988, the United States Supreme Court held in Westfall v. Erwin that for a federal employee to be
immune from suit on a common law tort, he must show not only that he was acting within the scope of
employment but also that he was performing a discretionary function.83 Congress viewed the second
requirement as exposing employees to unwarranted liability84 and quickly passed the Federal Employees
Liability Reform and Tort Compensation Act, commonly known as the Westfall Act, which provided immunity to
all employees acting within the scope of employment,85 “‘return[ing] [them] to the status they held prior to the
Westfall decision.’”86 The Westfall Act made whatever remedy the FTCA provided against the United States a
claimant’s exclusive remedy for a government employee’s conduct in the scope of employment.
House Bill 4’s revision of section 101.106 achieves the same end under Texas law as the Westfall Act does
under federal law. As it affects government-employed physicians, it is generally consistent with the Legislature’
s concerns regarding health care costs, also expressed in the bill.87 We recognize that the Open Courts
provision of the Texas Constitution “prohibits the Legislature from unreasonably abrogating well-established
common-law claims”,88 but restrictions on government employee liability have always been part of the tradeoff
for the Act’s waiver of immunity, expanding the government’s own liability for its employees’ conduct,89 and
thus “a reasonable exercise of the police power in the interest of the general welfare.”90 In any event, no
constitutional challenge is made in this case.
***
Accordingly, we hold that for section 101.106(f), suit “could have been brought” under the Act against the
government regardless of whether the Act waives immunity from suit. We reverse the judgment of the court of
appeals and remand to the trial court for further proceedings.
Nathan L. Hecht
Justice
Opinion delivered: January 21, 2011
--------------------------------------------------------------------------------
1 Tex. Civ. Prac. & Rem. Code § 101.106(f).
2 216 S.W.3d 409, 413 (Tex. App.–San Antonio 2006) (“a trial court . . . is not permitted to dismiss employees from a lawsuit
under section 101.106(f) if a fact issue exists with regard to whether the governmental unit’s immunity is waived”).
3 253 S.W.3d 653, 658 (Tex. 2008) (citing Harris Cnty. v. Sykes, 136 S.W.3d 635, 640 (Tex. 2004), Dallas Cnty. Mental Health and
Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998), and Newman v. Obersteller, 960 S.W.2d 621, 622-623 (Tex.
1997)).
4 Mission, 253 S.W.3d at 659 (citing Newman, 960 S.W.2d at 622).
5 The District does business as the University Health System. Its history is summarized on the System’s website at http://www.
universityhealthsystem.com/about-university-health-system/our-history/.
6 See Murk v. Scheele, 120 S.W.3d 865, 866 (Tex. 2003) (per curiam) (“University Hospital [is] a public teaching hospital for
indigent patients that is owned and operated by the Bexar County Health District and staffed with medical faculty, residents, and
students of the University of Texas Health Science Center . . . .”).
7 Tex. Civ. Prac. & Rem. Code § 101.106(f).
8 Id. § 101.021 (“A governmental unit in the state is liable for . . . personal injury . . . caused by the wrongful act or omission or the
negligence of an employee acting within the scope of his employment . . . by a condition or use of tangible personal . . . property
if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.”).
9 Plaintiffs have not questioned the court of appeals’ jurisdiction over this interlocutory appeal. “A person may appeal from an
interlocutory order of a district court, county court at law, or county court that . . . denies a motion for summary judgment that is
based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the
state . . . .” Tex. Civ. Prac. & Rem. Code § 51.014(a). For two reasons, we think defendants’ motions for summary judgment were
based on an assertion of immunity.
First, in Newman v. Obersteller, we held that section 51.014(a) allowed a school district employee to appeal the denial of
his motion for summary judgment seeking dismissal under former section 101.106 because “section 101.106 is an immunity
statute.” 960 S.W.2d 621, 623 (Tex. 1997). At that time, section 101.106 provided simply: “A judgment in an action or 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.” Act of May 17, 1985, 69th Leg. R.S., ch. 959, § 1, 1985 Tex.
Gen. Laws 3242, 3305, recodifying former Tex. Rev. Civ. Stat. Ann. art. 6252-19, § 12(a), Act of May 14, 1969, 61st Leg., R.S., ch.
292, § 12(a), 1969 Tex. Gen. Laws 874, 877 (“The judgment or settlement in an action or claim under this Act shall constitute a
complete bar to any action by the claimant, by reason of the same subject matter, against the employee of a unit of government
whose act or omission gave rise to the claim.”). We reasoned that the phrase, “bars any action”, was “an unequivocal grant of
immunity”, and that allowing an interlocutory appeal from a refusal to enforce the bar “protects public officials asserting an
immunity defense from the litigation process.” Newman, 960 S.W.2d at 622. The phrase is not used in current section 101.106
(f), but four other subsections speak of a bar from suit or recovery, and we think the character of the statute as one conferring
immunity remains unchanged. See Tex. Civ. Prac. & Rem. Code § 101.106(a)-(d).
Second, section 101.106(f) states that a suit to which it applies “is considered to be against the employee in the
employee’s official capacity only.” Id. § 101.106(f). We have held that “[w]ith the limited ultra vires exception . . . , governmental
immunity protects government officers sued in their official capacities to the extent that it protects their employers.” City of El
Paso v. Heinrich, 284 S.W.3d 366, 380 (Tex. 2009). By moving for summary judgment on section 101.106(f), defendants were
asserting claims of governmental immunity.
10 216 S.W.3d 409, 413 (Tex. App.–San Antonio 2006).
11 Id. (internal citation omitted).
12 51 Tex. Sup. Ct. J. 771 (Apr. 18, 2008). We have jurisdiction of this interlocutory appeal because the court of appeals’ decision
conflicts with Harris Cnty. v. Sykes, 136 S.W.3d 635 (Tex. 2004), Dallas Cnty. Mental Health and Mental Retardation v. Bossley,
968 S.W.2d 339 (Tex. 1998), and Newman v. Obersteller, 960 S.W.2d 621, 622-623 (Tex. 1997), the cases that provided the
basis for our decision in Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008). See Tex. Gov’t Code § 22.001
(a)(2) (“The supreme court has appellate jurisdiction . . . extending to all questions of law arising in . . . a case in which one of
the courts of appeals holds differently from a prior decision of . . . the supreme court on a question of law material to a decision
of the case . . . .”); id. § 22.001(e) (“For purposes of Subsection (a)(2), one court holds differently from another when there is
inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness
to litigants.”); see also City of San Antonio v. Ytuarte, 229 S.W.3d 318, 319 (Tex. 2007) (per curiam) (“In 2003, the Legislature
redefined and broadened our conflicts jurisdiction to eliminate the previous requirement that the rulings in the two cases be ‘so
far upon ftlinethe same state of facts that the decision of one case [was] necessarily conclusive of the decision in the other.’
Coastal Corp. v. Garza, 979 S.W.2d 318, 319 (Tex. 1998).”).
13 Respondents’ Brief on the Merits 8 (“Velasquez/Alaniz do not contest, for the purpose of this appeal, that UTHSC is a
“Governmental Unit” . . . [or] that Dr. Franka was an employee of UTHSC but do contest Dr. Reddy’s alleged employee status.”).
14 Tex. Civ. Prac. & Rem. Code § 101.001(2).
15 See id. § 101.001(3) (“‘Governmental unit’ means . . . (B) a political subdivision of this state, . . . and (D) any . . . institution,
agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed
by the legislature under the constitution.”); see also Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 354 &
n.5 (Tex. 2004) (holding that University of Texas Southwestern Medical Center at Dallas, part of University of Texas System, of
which University of Texas Southwestern Medical Center at San Antonio is another part, Tex. Educ. Code § 65.02(a)(7), is a
governmental unit under the Tort Claims Act).
16 See Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam) (a UT Health Science Center faculty member, practicing
at the District’s hospital but paid by the Center and subject to its regimens and review, was the Center’s “employee” for
purposes of the Tort Claims Act, even though he was required to exercise some independent medical judgment and not every
detail of his work was controlled by the Center).
17 See Tex. Civ. Prac. & Rem. Code § 101.001(3), supra note 15; Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d
838, 842 (Tex. 2009) (citing Martinez v. Val Verde Cnty. Hosp. Dist., 140 S.W.3d 370, 371 (Tex. 2004)); cf. Bexar Cnty. Hosp. Dist.
v. Crosby, 327 S.W.2d 445, 446 (1959) (describing the Bexar County Hospital District as “a political subdivision of the State”
created under the constitutional and statutory provisions at issue in the District’s declaratory judgment suit against other
governmental entities (see Tex. Const. art. IX, §4 and Act of May 26, 1953, 53rd Leg., R.S., ch. 266, 1953 Tex. Gen. Laws 691,
codified formerly as Tex. Rev. Civ. Stat. Ann. art. 4494n and now as Tex. Health & Safety Code §§ 281.001-124)); see also, e.g.,
Tex. Gov’t Code §§ 403.1041(5), 534.002(1)(A); Tex. Health & Safety Code §§ 241.003(6), 285.072 (a contractor managing or
operating a hospital under contract with a hospital district is considered a governmental unit for purposes of Chapters 101 (the
Tort Claims Act), 102, and 108 of the Civil Practices and Remedies Code); and Tex. Loc. Gov’t Code §§ 271.003(4); 271.009(1);
271.091(1), 271.111(10), and 271.151 (contract claims against local governmental entities) (3)(C).
18 Specifically, the agreement stated: “The parties [i.e., the Center, Reddy, and the District] understand that the Resident [i.e.,
Reddy] performs tasks, namely the practice of medicine, the details of which the [District] does not have legal right to control and
no such control is assumed by this Agreement.” Cf. Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003) (per curiam) (“The Act’s
definition of ‘employee’ does not require that a governmental unit control every detail of a person’s work. . . . [A] physician [in the
“paid service” of a governmental unit and] whose practice is controlled by [that] governmental unit is not precluded from being an
‘employee’ within the meaning of the Act simply because he or she must exercise some independent medical judgment.”).
19 Although Reddy does not assert that the Center had the legal right to control her work, the agreement provided that the Center
would “establish and maintain an organized educational program, which provides guidance and supervision of the Resident,
facilitating the Resident’s professional and personal development while ensuring safe and appropriate care for the patients, in
accordance with the institutional policies and procedures of the [Accreditation Council for Graduate Medical Education].” The
agreement further provided that the Center would “evaluate the Resident on a regular basis to assess the Resident’s level of
advancement, practice privileges, duty hour schedule, and the nature of supervision necessary by attending teaching staff.” Cf.
St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542-544 (Tex. 2003) (plurality op.); id. at 544 (O’Neill, J., joined by Phillips, C.J.,
concurring) (concluding that the evidence did not show that a resident was under the control of the sponsoring hospital).
20 Petitioners’ Reply to Respondents’ Brief on the Merits 4; id. at 6 (“As a result of this unique three-party arrangement,
residents could not be deemed an employee of either entity under the Tort Claims Act’s general definition of ‘employee’ as a
person who is both paid by and subject to the control of a governmental entity.”). We express no opinion on the validity of Reddy’
s reasoning.
21 Tex. Health & Safety Code § 312.007(a) (emphasis added); see also (b) (“A judgment in an action or settlement of a claim
against a medical and dental unit, supported medical or dental school, or coordinating entity under Chapter 101, Civil Practice
and Remedies Code, bars any action involving the same subject matter by the claimant against a director, trustee, officer, intern,
resident, fellow, faculty member, or other associated health care professional or employee of the unit, school, or entity whose act
or omission gave rise to the claim as if the person were an employee of a governmental unit against which the claim was
asserted as provided under Section 101.106, Civil Practice and Remedies Code.”).
22 Section 312.002(4) of the Texas Health & Safety Code provides that “[i]n this chapter: . . . ‘[m]edical and dental unit’ has the
meaning assigned by Section 61.003, Education Code.” Section 61.003(5) of the Texas Education Code, in turn, defines
“medical and dental unit” to include the University of Texas Medical School at San Antonio, where Reddy had her residency,
which is part of the Center, id. § 65.02(a)(10) (“The University of Texas System is composed of . . . The University of Texas Health
Science Center at San Antonio, including . . . The University of Texas Medical School at San Antonio . . . .”).
23 315 S.W.3d 1, 8 (Tex. 2010).
24 Tex. Health & Safety Code § 312.003.
25 See Bustillos v. Jacobs, 190 S.W.3d 728, 735 (Tex. App.–San Antonio 2005, no pet.) (holding that an agreement by “a medical
or dental unit” to provide medical training and patient care in a public hospital is sufficient to satisfy section 312.003, without
joinder of “a supported medical or dental school”).
26 Tex. Health & Safety Code § 312.001(b).
27 Id. § 312.004(c) (“A medical and dental unit, a supported medical or dental school, and a coordinating entity may contract with
the owner or operator of a public hospital for the clinical education of students, interns, residents, and fellows enrolled at the unit
or school.”); see also id. § 312.004(a) (“Medical and dental units, supported medical or dental schools, coordinating entities,
and public hospitals may make and perform contracts among each other for the coordinated or cooperative clinical education of
the students, interns, residents, and fellows enrolled at the units or schools.”).
28 Id. § 312.005(a).
29 Tex. Civ. Prac. & Rem. Code § 101.106(f).
30 216 S.W.3d 409, 412 (Tex. App.–San Antonio 2006).
31 960 S.W.2d 621, 622 (Tex. 1997).
32 Act of May 17, 1985, 69th Leg. R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3305, recodifying former Tex. Rev. Civ. Stat. Ann.
art. 6252-19, § 12(a), Act of May 14, 1969, 61st Leg., R.S., ch. 292, § 12(a), 1969 Tex. Gen. Laws 874, 877 (“The judgment or
settlement in an action or claim under this Act shall constitute a complete bar to any action by the claimant, by reason of the
same subject matter, against the employee of a unit of government whose act or omission gave rise to the claim.”).
33 Newman, 960 S.W.2d at 622.
34 Newman v. Obersteller, 915 S.W.2d 198, 203 (Tex. App.–Corpus Christi 1996), rev’d, 960 S.W.2d 621 (Tex. 1997).
35 Tex. Civ. Prac. & Rem. Code § 101.057(2) (“This chapter does not apply to a claim . . . arising out of assault, battery, false
imprisonment, or any other intentional tort . . . .”).
36 Newman, 960 S.W.2d at 622.
37 Newman, 915 S.W.2d at 200-201.
38 Newman, 960 S.W.2d at 622.
39 Id. at 623.
40 968 S.W.2d 339, 343-344 (Tex. 1998).
41 136 S.W.3d 635, 640 (Tex. 2004).
42 Bossley, 968 S.W.2d at 340-341.
43 Id. at 341.
44 Id. at 343-344.
45 Sykes, 136 S.W.3d at 637.
46 Id. at 637-638.
47 Id. at 640-641.
48 253 S.W.3d 653, 658 (Tex. 2008).
49 Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 11.05, 2003 Tex. Gen. Laws 847, 886.
50 Tex. Civ. Prac. & Rem. Code § 101.106.
51 Tex. Lab. Code §§ 21.001-21.556.
52 253 S.W.3d at 655.
53 Id.
54 Id.
55 Id. at 658.
56 Id. at 658-659 (footnote and some citations omitted).
57 Id. at 659-660.
58 Id. at 660.
59 Id.
60 Tex. Civ. Prac. & Rem. Code § 101.106.
61 Id. § 101.103(a).
62 Id. § 101.102(a).
63 Whether an employee’s intentional tort is within the scope of employment is a more complex issue. See generally
Restatement (Third) of Agency § 7.07 (2006).
64 Tex. Civ. Prac. & Rem. Code § 101.106(f).
65 887 S.W.2d 4, 11 (Tex. 1994).
66 “Under prior law, many plaintiffs avoided the TTCA’s cap on damages, notice provision, and case law interpreting use and
misuse of tangible personal property by suing government employees individually. Texas case law had generally held that
individual employees were not afforded the defenses and protections contained in the TTCA. Accordingly, by filing suit against
the employee under other statutes, a plaintiff could circumvent the TTCA.
“Section 11.05 of H.B. 4 created a new ‘Election of Remedies’ section under the TTCA. The section effectively requires
plaintiffs to sue the governmental unit rather than an employee of the governmental unit.
* * *
“The net effect of the various new provisions of the TTCA is that a plaintiff will only be able to pursue the governmental
entity and not its employees. The amendment also solves the problems Texas courts faced in trying to determine if employees
of governmental units were entitled to the defense of official immunity. . . .
“In Kassen, the Texas Supreme Court held that health care providers are entitled to official immunity if their acts are
governmental in nature and not purely medical. The court’s 1994 holding has forced lower courts to conduct a complicated
analysis of each fact pattern in each case. Consequently, Kassen did not remove the threat of potential lawsuits against
employees of a governmental unit. . . . H.B. 4 addressed those concerns by requiring that lawsuits be brought against the
governmental unit instead of its employees. As a result, the need for determining if official immunity applies is eliminated.”
Michael S. Hull et al., House Bill 4 and Proposition 12: An Analysis with Legislative History, Part Three, 36 Tex. Tech L. Rev. 169,
290-293 (2005) (footnotes omitted).
67 Two courts of appeals appear to have recognized that Mission requires the construction of section 101.106(f) we adopt.
Castro v. McNabb, 319 S.W.3d 721, 731-732 (Tex. App.–El Paso 2009, no pet.); Kelemen v. Elliott, 260 S.W.3d 518, 524 (Tex. App.
–Houston [1st Dist.] 2008, no pet.). We disapprove the cases that have adopted a different construction. See McFadden v.
Oleskey, No. 03-09-00187-CV, 2010 Tex. App. LEXIS 6806, at *24, 2010 WL 3271667, at *8 (Tex. App.–Austin Aug. 19, 2010, no
pet.); Illoh v. Carroll, 321 S.W.3d 711, 716-717 (Tex. App.–Houston [14th Dist.] 2010, pet. filed); Menefee v. Medlen, 319 S.W.3d
868, 875-877 (Tex. App.–Fort Worth 2010, no pet.); Reedy v. Pompa, 310 S.W.3d 112, 119 (Tex. App.–Corpus Christi-Edinburg
2010) (petition granted Jan. 21, 2011); Lieberman v. Romero, No. 05-08-01636-CV, 2009 Tex. App. LEXIS 8414, at *4-5, 2009
WL 3595128, at *2 (Tex. App.–Dallas Nov. 3, 2009) (mem. op.) (petition granted Jan. 21, 2011); Terry A. Leonard, P.A. v. Glenn,
293 S.W.3d 669, 681-682 (Tex. App.–San Antonio 2009) (petition granted Jan. 21, 2011); Escalante v. Rowan, 251 S.W.3d 720,
727-729 (Tex. App.–Houston [14th Dist.] 2008) (petition granted Jan. 21, 2011); Lanphier v. Avis, 244 S.W.3d 596, 600 (Tex. App.–
Texarkana 2008, pet. filed); Hall v. Provost, 232 S.W.3d 926, 928-929 (Tex. App.–Dallas 2007, no pet.); Turner v. Zellers, 232 S.W.
3d 414, 417-419 (Tex. App.–Dallas 2007, no pet.); Kanlic v. Meyer, 230 S.W.3d 889, 893-894 (Tex. App.–El Paso 2007, pet. filed);
Clark v. Sell ex rel. Sell, 228 S.W.3d 873, 874-875 (Tex. App.–Amarillo 2007) (petition granted Jan. 21, 2011); Sheth v. Dearen,
225 S.W.3d 828, 830 (Tex. App.–Houston [14th Dist.] 2007, no pet.); Tex. Dep’t of Agric. v. Calderon, 221 S.W.3d 918, 922-923
(Tex. App.–Corpus Christi-Edinburg 2007, no pet.); Walkup v. Borchardt, No. 07-06-0040-CV, 2006 Tex. App. LEXIS 10333, at *1-
2, 2006 WL 3455254, at *1 (Tex. App.–Amarillo Nov. 30, 2006, no pet.); Tejada v. Rowe, 207 S.W.3d 920, 925 (Tex. App.–
Beaumont 2006, pet. filed); Williams v. Nealon, 199 S.W.3d 462, 466-467 (Tex. App.–Houston [1st Dist.] 2006) (petition granted
Jan. 21, 2011); Phillips v. Dafonte, 187 S.W.3d 669, 676-677 (Tex. App.–Houston [14th Dist.] 2006, no pet.).
68 Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (“It is fundamental that a suit against a state official is
merely ‘another way of pleading an action against the entity of which [the official] is an agent.’ Kentucky v. Graham, 473 U.S. 159,
165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 690 n. 55,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001). A suit against
a state official in his official capacity ‘is not a suit against the official personally, for the real party in interest is the entity.’ Graham,
473 U.S. at 166, 105 S.Ct. 3099 (emphasis in original). Such a suit actually seeks to impose liability against the governmental
unit rather than on the individual specifically named and ‘is, in all respects other than name, . . . a suit against the entity.’ Id.; see
also Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855-56 (Tex. 2002).”).
69 City of El Paso v. Heinrich, 284 S.W.3d 366, 372, 373 (Tex. 2009) (“[S]uits to require state officials to comply with statutory or
constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of
money. To fall within this ultra vires exception, a suit must not complain of a government officer’s exercise of discretion, but
rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act. . .
. But the ultra vires rule is subject to important qualifications. Even if such a claim may be brought, the remedy may implicate
immunity.”).
70 Id. at 380 (“With the limited ultra vires exception . . . , governmental immunity protects government officers sued in their official
capacities to the extent that it protects their employers.”); Koseoglu, 233 S.W.3d at 844 (“When a state official files a plea to the
jurisdiction, the official is invoking the sovereign immunity from suit held by the government itself.”).
71 E.g. Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002); Leonard v. Abbott, 366 S.W.2d 925, 928-929 (Tex. 1963).
72 House v. Houston Waterworks Co., 31 S.W. 179, 181 (Tex. 1895) (“It is well settled that a public officer or other person who
takes upon himself a public employment is liable to third persons in an action on the case for any injury occasioned by his own
personal negligence or default in the discharge of his duties.” (internal quotation marks and citation omitted)).
73 Heinrich, 284 S.W.3d at 373 n.7 (“State officials may, of course, be sued in both their official and individual capacities.”).
74 Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422-424 (Tex. 2004) (discussing the history of official immunity in
Texas law, noting that it has been accorded officials, law enforcement and emergency officers, and physicians, and holding that
board of adjustment members can assert it). We have not held that every government employee may assert official immunity, but
I am not aware of a case denying it.
75 City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).
76 Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994).
77 Id. at 11-12.
78 DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995) (“Whether the Texas Tort Claims Act waives sovereign immunity in a
given case does not affect whether the governmental employee may assert official immunity as a defense.”); Tex. Civ. Prac. &
Rem. Code § 101.026 (“To the extent an employee has individual immunity from a tort claim for damages, it is not affected by
this chapter.”).
79 Dewitt, 904 S.W.2d at 654 (section 101.121 of the TTCA “predicate[s] the governmental unit’s respondeat superior liability
upon the liability of its employee”).
80 28 U.S.C. § 2676 (“The judgment in an action under [the Federal Tort Claims Act] shall constitute a complete bar to any action
by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise
to the claim.”). We noted the similarity in Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995).
81 Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 425 (U.S. 1995) (citing Pub. L. 87-258, § 1, 75 Stat. 539).
82 See, e.g., Barr v. Matteo, 360 U.S. 564, 574-575 (1959) (Justice Harlan, joined by Justices Frankfurter, Clark, and Whittaker,
concluded that, under the circumstances in the record, the alleged libel could not be said to be an inappropriate exercise of
discretion by an agency head; it would be unduly restrictive to hold a public statement of agency policy, on a matter of wide public
interest, by a policy-making executive official, was not an action in the line of duty, and the “fact that the action was within outer
perimeter of the petitioner’s line of duty is enough to render the privilege applicable, despite the allegations of malice”), and
Poolman v. Nelson, 802 F.2d 304, 308 & n.2 (8th Cir. 1986) (holding that a Farmers Home Administration county supervisor was
immune from a would-be borrower’s suit over alleged misrepresentations because those actions fell “within the outer
perimeter” of the county supervisor’s authority, citing, inter alia, Barr, 360 U.S. at 571).
83 484 U.S. 292, 296-297 (1988); see also H.R. Rep. No. 100-700, at 2 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5946 (“[I]n
Westfall, the Supreme Court added an additional requirement for immunity when a Federal employee is sued in his personal
capacity. Now, the Federal employee not only must have been acting within the scope of employment (the original standard), but
also must have exercised governmental discretion in acting.”).
84 See H.R. Rep. No. 100-700, at 2 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5946 (“[N]early all actions against Federal
employees in their personal capacity were unsuccessful because those employees were acting in the course and scope of
employment, and therefore were immune from personal liability”).
85 28 U.S.C. § 2679 (“(b)(1) The remedy against the United States provided by [the Federal Tort Claims Act] for injury or loss of
property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for
money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or
against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the
same subject matter against the employee or the employee’s estate is precluded without regard to when the act or omission
occurred. (2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government — (A) which is
brought for a violation of the Constitution of the United States, or (B) which is brought for a violation of a statute of the United
States under which such action against an individual is otherwise authorized.”).
86 Gutierrez de Martinez, 515 U.S. at 426 (quoting H.R. Rep. No. 100-700, at 4 (1988)).
87 Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847, 884.
88 Butnaru v. Ford Motor Co., 84 S.W.3d 198, 202 (Tex. 2002).
89 See Thomas v. Oldham, 895 S.W.2d 352, 357-358 (Tex. 1995).
90 Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995).