Hannah R. Tanner v. Texas State University

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON REMAND

NO. 03-21-00131-CV

Hannah R. Tanner, Appellant

v.

Texas State University, Appellee

FROM THE 207TH DISTRICT COURT OF HAYS COUNTY

NO. 17-0354, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

OPINION

This case returns to us on remand from the Texas Supreme Court, which determined

that appellee Texas State University’s challenge to the timeliness of appellant Hannah R. Tanner’s

service is a jurisdictional issue, properly raised in a plea to the jurisdiction. See Texas State Univ.

v. Tanner (Tanner II), 689 S.W.3d 292, 296-97, 302 (Tex. 2024). The Texas Supreme Court

remanded the case for this Court to determine whether the trial court properly granted the

University’s plea, a question that we did not reach because we had “concluded that untimely

service does not pose a jurisdictional issue that a plea to the jurisdiction can resolve.” Id. at 296-97.

In concluding otherwise, the Texas Supreme Court determined that timely service

is part of the statutory prerequisite of bringing suit before the limitations period expires and thus

is a part of that particular jurisdictional requirement for a suit against a governmental entity. Id. at

296 (citing Tex. Gov’t Code § 311.034 (Waiver of Sovereign Immunity)); see also id. at 302 (“We

accordingly hold that the statute of limitations, including the requirement of timely service, is

jurisdictional in suits against governmental entities. The University’s plea to the jurisdiction was

therefore a proper vehicle to address Tanner’s alleged failure to exercise diligence in serving the

University.”). The supreme court concluded that Tanner “has not established, and cannot establish,

diligence in service on the University,” which is a means to establish timely service. Id. at 304.

However, the court directed this Court to consider the legal question of whether Tanner’s service

on the University’s employee “satisfies her obligation to serve the University.” Id. at 303.

“Because jurisdiction [over a governmental entity] depends on bringing suit within

limitations, and because the statute of limitations requires timely service,” we must determine

whether Tanner’s “service on [the University’s employee] effectively was service on the

University.” Id. For the reasons explained below, we hold that Tanner’s service on the University’s

employee is not effectively service on the University, and we affirm the trial court’s grant of the

University’s plea to the jurisdiction.

BACKGROUND

The underlying facts and procedural history are well-known to the parties and have

been set out in our prior opinion and the supreme court’s opinion. Thus, we will limit our

discussion of the facts and procedural history to those relevant to our analysis of whether Tanner

timely served the University. As the supreme court noted, “[t]he relevant facts are largely

undisputed, and we view them in the light most favorable to Tanner, the nonmovant.” Id. at 297.

On October 4, 2014, Tanner was injured when she was thrown from a golf cart on

the Texas State University campus. Dakota Scott, the University’s employee, had been driving the

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golf cart in the scope of his employment. Tanner brought this suit under the Texas Tort Claims Act

against the Texas State University System, Scott, and the University, on September 29, 2016—less

than a week before the expiration of the two-year limitations period for a personal-injury claim.

See Tex. Civ. Prac. & Rem. Code § 16.003 (requiring a person to “bring suit” for personal injury

“not later than two years after the day the cause of action accrues”); see also generally id.

§§ 101.001-.109 (Texas Tort Claims Act).1

Tanner served the University System soon after filing suit, on October 4, 2016. Her

original petition expressly states that she was not requesting service on either Scott or the

University “at this time.” At the end of October, the System filed an answer and a plea to the

jurisdiction. On November 21, 2016, the System disclosed in its interrogatory responses to Tanner

that it “is a separate entity and governmental unit from each of its component institutions” and that

Scott had “never been employed by the Texas State University System.”

A year and ten months later, on September 18, 2018, Tanner served Scott—but she

still did not serve the University. (The System had filed a brief in support of its plea to the

jurisdiction on August 30, 2018, and set the plea for hearing for September 19, 2018.) On

December 3, 2018, the district court granted the System’s plea to the jurisdiction and dismissed

and severed Tanner’s claims against the System from the case. Tanner did not appeal that ruling.

Tanner finally served the University on May 20, 2020—five-and-a-half years after

her injury and three-and-a-half years after limitations had run. On June 2, 2020, the University

answered, asserting the affirmative defense that Section 16.003’s statute of limitations for

personal-injury claims barred Tanner’s claims. The University also moved to dismiss Scott

1

Unless otherwise noted, all statutory references are to the Texas Civil Practice &

Remedies Code.

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pursuant to Section 101.106(e) of the Texas Tort Claims Act. 2 On June 30, 2020, the trial court

granted the University’s motion to dismiss Scott pursuant to Section 101.106(e) and severed

Tanner’s claim against Scott and restyled the case.

On October 2, 2020, the University filed its plea to the jurisdiction and alternative

motion for summary judgment, alleging that Tanner’s lack of diligence in serving it resulted in her

suit being untimely and barred by the statute of limitations. The trial court granted the plea to the

jurisdiction without ruling on the alternative summary-judgment motion and dismissed with

prejudice Tanner’s claims against the University.

Tanner appealed from that order, and we reversed. Tanner v. Texas State Univ.

(Tanner I), 644 S.W.3d 747, 753 (Tex. App.—Austin 2022), rev’d and remanded, 689 S.W.3d 292

(Tex. 2024). We held that untimely service does not implicate jurisdiction under Texas

Government Code Section 311.034, and thus, governmental entities cannot challenge untimely

service through a plea to the jurisdiction. See id. at 752. As explained above, the Texas Supreme

Court reversed our judgment and remanded the case because it concluded that “the statute of

limitations is not satisfied, until the plaintiff achieves both steps”—“filing the petition and

achieving service of process.” Tanner II, 689 S.W.3d at 300.

2

The Texas Supreme Court has held that “[b]y filing [a motion to dismiss under Section

101.106(e)], the governmental unit effectively confirms the employee was acting within the scope

of employment and that the government, not the employee, is the proper party.” Texas Adjutant

Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 358 (Tex. 2013); see also University of Tex. Health Sci.

Ctr. at Houston v. Rios, 542 S.W.3d 530 (Tex. 2017) (reaffirming that employer’s filing of motion

to dismiss under Section 101.106(e) effectively confirms that employee was an employee acting

within scope of employment).

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ANALYSIS

The question presented to us on remand is whether the University established its

entitlement to dismissal as a matter of law in its plea to the jurisdiction. Id. at 302. As the supreme

court pointed out, Tanner “has identified no disputed fact issue related to her exercise of diligence

or anything else in connection with service—that is to say, she has identified no factual question

that would be fit for presentation to a jury.” Id. at 302-03. The court identified the three legal

arguments that Tanner made to explain her delay, stating that she cannot establish her diligence in

service under any of these arguments, but that the first one warrants remand to us “for resolution

of a potentially dispositive legal question.” Id. at 303.

The legal question presented to us for consideration is whether Tanner’s “service

on Scott effectively was service on the University.” Id. After remand, we requested supplemental

briefing from the parties on the two potentially dispositive issues identified by the supreme court:

(1) whether Tanner’s service on Scott satisfied her obligation to serve the University, his employer,

under Section 101.106 and (2) if so, whether Tanner timely served Scott. See id.at 303-04 & n.2.

To answer the question presented to us on remand, we must construe the relevant portions of

Section 101.106, the election-of-remedies provision in the Texas Tort Claims Act. Accordingly,

we provide a brief overview of the statutory framework.

Statutory Framework

“Sovereign immunity and its counterpart, governmental immunity, exist to protect

the State and its political subdivisions from lawsuits and liability for money damages.” Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). “[T]he manner in which

the government conveys its consent to suit is through the Constitution and state laws.” Id. at 660.

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Thus, “it is the Legislature’s sole province to waive or abrogate sovereign immunity.” Id. (quoting

Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002)). We narrowly

construe statutory waivers of immunity because “the Legislature’s intent to waive immunity must

be clear and unambiguous.” Id. at 655 (citing Tex. Gov’t Code § 311.034).

The Texas Tort Claims Act provides a limited waiver of immunity for certain tort

claims against governmental entities and caps recoverable damages. See, e.g., Tex. Civ. Prac. &

Rem. Code §§ 101.021, .023, .025; see also Garcia, 253 S.W.3d at 655-56. To prevent plaintiffs

from circumventing the Act’s damages cap and other restrictions by suing governmental

employees, the Legislature enacted an election-of-remedies provision. Garcia, 253 S.W.3d at 656.

The Legislature has structured that provision “to prevent a plaintiff from pursuing alternative

theories against both the employee and the governmental unit through trial or other final

resolution.” Id.

The election-of-remedies section provides 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.

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(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.

Standard of Review

“Sovereign immunity implicates a court’s subject-matter jurisdiction.” EBS Sols.,

Inc. v. Hegar, 601 S.W.3d 744, 749 (Tex. 2020). Because subject-matter jurisdiction is a question

of law, we review a trial court’s ruling on a plea to the jurisdiction de novo. Id. Here, the

jurisdictional issue involves statutory construction, a question of law that we review de novo. First

Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008). When construing a statute, “our

goal is to ascertain the Legislature’s intent.” Texas Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d

350, 354-55 (Tex. 2013).

To ascertain that intent, we begin with the plain language of the statute. TGS-

NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We must view the statute

as a whole. Id. “We must endeavor to read the statute contextually, giving effect to every word,

clause, and sentence.” Ngakoue, 408 S.W.3d at 354 (quoting In re Office of Attorney Gen.,

422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding)). We may consider the “object sought to be

obtained” by the statute and the “consequences of a particular construction.” Id. (quoting Tex.

Gov’t Code § 311.023(1), (5)).

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I. The Legislature intended the Act’s election-of-remedies provision to force an early

decision by the plaintiff about who to sue, as well as the trial court’s dismissal of

governmental employees when suit should have been brought against the government.

To properly construe Section 101.106 in determining whether Tanner’s service on

Scott was effectively service on the University and to consider the statute as a whole, we must

examine the policy underlying the election-of-remedies provision. As the Texas Supreme Court

has observed, with the 2003 revision of Section 101.106, the Legislature intended 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” to reduce “the resources that the government and its employees must use in

defending redundant litigation and alternative theories of recovery.” Garcia, 253 S.W.3d at 657 &

n.3 (noting that state agencies must “indemnify their employees for litigation expenses if the

employee’s actions were within the course and scope of his or her employment” and citing Tex.

Civ. Prac. & Rem. Code §§ 104.001, .002). Section 101.106 “favors the expedient dismissal of

governmental employees when suit should have been brought against the government.” Ngakoue,

408 S.W.3d at 355. “An early determination of who constitutes the proper defendant ‘narrows the

issues for trial and reduces delay and duplicative litigation costs’ by removing a plaintiff’s ability

‘to plead alternatively that the governmental unit is liable because its employee acted within the

scope of his or her authority but, if not, that the employee acted independently and is individually

liable.’” Id. (quoting Garcia, 253 S.W.3d at 657). Thus, when the suit arises from an employee’s

conduct that was within the scope of employment and could be brought against the government

under the Tort Claims Act, we must favor construing the meaning of Section 101.106’s various

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provisions in the way “that most clearly leads to the early dismissal of a suit against an employee.” 3

Id.

In Ngakoue, the Texas Supreme Court explained the interaction of Subsections (b)

and (e) and Subsections (b) and (f). Id. Both Subsection (e) and (f) offer the possibility for early

dismissal of a suit against an employee, but in different situations. Subsection (f) applies when

“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.” Tex. Civ. Prac. & Rem. Code § 101.106(f). In that situation, “the suit is

considered to be against the employee in the employee’s official capacity only.” Id.

Courts have long held that a suit against a government employee is merely ‘another

way of pleading an action against an entity of which [the employee] is an agent.’” Texas A & M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (quoting Kentucky v. Graham, 473 U.S.

159, 165 (1985)). Thus, “[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.’” Id. (quoting Graham, 473 U.S.

at 166). “As long as the government entity receives notice and an opportunity to respond, an

official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”

Graham, 473 U.S. at 166 (emphases added) (explaining distinction between personal-capacity and

official-capacity suits against governmental employees in holding that attorneys’ fees could not be

recovered from governmental entity when suit was against governmental employees in their

personal capacities).

3

“[A]ll 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.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).

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Accordingly, Subsection (f) provides a procedure by which the governmental

employee who is deemed to have been sued only in his official capacity will be dismissed from

the suit. Upon filing of a motion to dismiss, the employee will be dismissed either “(1) via the

plaintiff’s amended pleading substituting the governmental unit for the employee as the defendant;

or (2) absent such an amended pleading, via the trial court’s order granting the employee’s motion

and dismissing the suit against the employee.” Ngakoue, 408 S.W.3d at 358. Because the “suit

against an employee in his official capacity is not a suit against the employee” in his individual

capacity—instead, it is in all but name a suit against the governmental unit—it does not trigger

Subsection (b)’s bar against suing a governmental unit after a plaintiff has filed suit against an

employee of the unit. Id. at 357. Thus, Subsection (f) allows the plaintiff’s suit to proceed against

the governmental unit if the governmental unit is properly substituted for the employee as the

defendant; this “procedure for dismissal [of the employee] independently serves section 101.106’s

recognized purposes of ensuring early dismissal of governmental employees when suit should have

been brought against the government and reducing the expense and delay associated with

alternative pleading.” Id. at 358. The supreme court summarized the interaction of Subsections

(f) and (b) as follows:

In sum, subsection (f) does not require dismissal of the employee by the plaintiff to

overcome the bar to suit against the government in subsection (b); rather, subsection

(f) provides the [Texas Tort Claims Act] plaintiff a window to amend his pleadings

to substitute the governmental unit before the court dismisses the suit against the

employee on the employee’s motion where appropriate. Tex. Civ. Prac. & Rem.

Code § 101.106(f). If the plaintiff fails to substitute the government, and the

employee was sued in his official capacity only, then the case must be dismissed.

Id. at 359 (emphases added).

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“The same purposes [of ensuring early dismissal of governmental employees when

suit should have been brought against the government and reducing the expense and delay

associated with alternative pleading] are served by subsection (e), which applies when suit is filed

against both a governmental unit under the [Texas Tort Claims Act] and its employee.” Id. at 358.

Subsection (e)—the applicable provision in Tanner’s case—establishes that “the employee shall

immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. &

Rem. Code § 101.106(e). As we noted earlier, “[b]y filing such a motion, the governmental unit

effectively confirms the employee was acting within the scope of employment and that the

government, not the employee, is the proper party.” Ngakoue, 408 S.W.3d at 358. “Further,

subsection (e) does not provide for dismissal of the governmental unit, so when the employee is

dismissed under that provision, the suit then proceeds solely against the government, assuming

immunity is otherwise waived.” Id. (emphasis added); see also Garcia, 253 S.W.3d at 659

(concluding that when tort claims were asserted against both employee and governmental

employer, suit was brought under Tort Claims Act, but Act did not waive immunity for type of tort

claims asserted, meaning employee would have been entitled to dismissal on governmental

employer’s motion and claims brought under Act against employer would not survive); Tanner II,

689 S.W.3d at 296 (holding that “bringing suit” within limitations requires timely service and is

statutory prerequisite to suing governmental entity that is jurisdictional and thus required for

waiver of immunity).

II. Tanner misreads Subsection (f) and the analysis in Bailey in arguing that service on

Scott was effectively service on the University.

With this procedural understanding of Section 101.106 in mind, we turn to Tanner’s

argument that her allegedly timely service on Scott satisfies the statutory prerequisite of timely

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service on the University, and thus, she has satisfied the jurisdictional prerequisite of “bringing

suit” against the University within the statute of limitations. See Tanner II, 689 S.W.3d at 300.

Tanner relies on Subsection (f) and the Texas Supreme Court’s holding in University of Tex. Health

Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011), to support this argument. In Bailey,

the Texas Supreme Court held that a governmental employer may be substituted as a defendant

upon its employee’s Subsection (f) motion after limitations has run. 332 S.W.3d at 396; see also

Ngakoue, 408 S.W.3d at 357 (describing Bailey’s holding). The court determined that the

employer could not prevail on its defense of limitations because when the employer was

substituted as the defendant in the employee’s place, “there was no change in the real party in

interest” because “[u]nder section 101.106(f), the Baileys’ suit against [the employee] was, in all

respects other than name, a suit against the [employer].” Id. at 401-02 (emphasis added). As the

court described it in Tanner II, “[u]nder the Act, the Baileys’ suit had been a suit against the

employer all along.” 689 S.W.3d at 303.

Tanner contends that we should extend the court’s reasoning in Bailey to this case.

She asserts that because Subsection (f) gives the plaintiff permission to “file[] amended pleadings

dismissing the employee and naming the governmental unit as defendant” within 30 days of the

motion, and the court allowed such a substitution after limitations had run, we should similarly

conclude that the University “as a named party” in this suit “has also been in this case ‘all along.’”

We disagree.

Important factual and procedural differences between Bailey and this case result in

a different outcome here. As the supreme court pointed out in Tanner II, “unlike in this case, the

Baileys did not know that the individual defendant that they had sued, Sanders, was a government

employee.” Id. (citing 332 S.W.3d at 401). In contrast, here “Tanner named the University from

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the beginning and so had no need to later name a correct party, as § 101.106(f) provides and as the

Baileys did.” Id. In Bailey, the employee defendant “Sanders waited until seven weeks after

limitations had passed and then announced that his employer (another state university) should have

been the defendant the whole time.” Id. (citing 332 S.W.3d at 397). The employer then invoked

limitations. Id. (citing 332 S.W.3d at 399). Tanner, on the other hand, “could have served every

defendant at the time of filing but, purportedly for strategic reasons, chose not to do so.” Id.

As we explained above, Subsection (f) and Subsection (e) operate differently even

though they serve the same goals of ensuring early dismissal of governmental employees when

suit should have been brought against the government and reducing the expense and delay

associated with alternative pleading. In Bailey, because only the employee had been named in the

suit as a defendant, Subsection (f) was the operative provision. See Tex. Civ. Prac. & Rem. Code

§ 101.106(f). Therefore, the employee controlled the timing of the motion to dismiss, which put

the Baileys on notice that he was an employee of a governmental unit and that their suit could be

brought against the governmental unit, and required the Baileys to either amend their pleadings to

substitute the governmental unit for the employee as the defendant, which they did, or face

dismissal of their suit against the employee. See id.

Here, Tanner filed suit against both a governmental unit and its employee,

triggering the application of Subsection (e). Subsection (e) places control of the employee’s

dismissal from the suit in the governmental unit’s hands: “the employee shall immediately be

dismissed on the filing of a motion by the governmental unit.” Id. § 101.106(e). When a

Subsection (e) motion is filed, “the governmental unit effectively confirms the employee was

acting within the scope of employment and that the government, not the employee, is the proper

party.” Ngakoue, 408 S.W.3d at 358. “Further, subsection (e) does not provide for dismissal of

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the governmental unit, so when the employee is dismissed under that provision, the suit then

proceeds solely against the government, assuming immunity is otherwise waived.” Id. (emphasis

added). In other words, if suit has properly been brought against the governmental unit, then after

the employee is dismissed under a Subsection (e) motion, the suit continues against the

governmental unit.

The holding in Bailey turned on the specific language in Subsection (f) providing

that “when a government employee is sued for conduct within the general scope of employment,

as Sanders was, and the employer could have been sued under the Act—in tort, that is—instead,

‘the suit is considered to be against the employee in the employee’s official capacity only.’” 332

S.W.3d at 401 (footnote and citation omitted). Thus, even though the Baileys may have intended

to sue Sanders in his individual capacity, Subsection (f) does not allow that choice:

Under the statute, it matters not that the Baileys may not have been aware of

Sanders’ government employment when they sued him; only the fact of his

employment, eventually established, is important. Substitution of the Center as

the defendant was not automatic; Sanders was required to file a motion. But the

statute does not require a motion for a government employee to be considered to

have been sued in his official capacity.

Id. (emphasis added). The court concluded that because Subsection (f) “requir[es] a government

employer to be substituted on the employee’s motion,” the Center could not prevail on its defense

of limitations. 4 Id. at 402.

4

We note that even under Subsection (f), timely service of the amended suit upon the

governmental employer would be required in order to trigger the employer’s deadline to answer

the suit. See University of Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 398 &

n.10 (Tex. 2011) (noting that trial court gave deadline to Baileys to amend pleadings, and after

employer answered suit, trial court issued order dismissing employee and severed him from case).

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Subsection (e) contains no language requiring substitution of one party for another

because none is needed. The employer controls the filing of the motion to dismiss, and contrary

to Tanner’s argument, the University had no obligation to do so even as a named party until served

and brought into the suit. 5 See Tanner II, 689 S.W.3d at 304 (“[T]he University had no duty to act

at all” until it had been served.). Subsection (e) contemplates a case where both the governmental

employer and the employee sued in his official capacity are already named parties to the suit, who

have been served and are participating in the litigation.

The court in Bailey construed Subsection (f) to allow substitution of a governmental

employer for an employee sued in his official capacity after the statute of limitations had expired

based on the specific statutory language in Subsection (f), which gives control of the timing of the

motion to dismiss to the employee. 332 S.W.3d at 401-02. In this case governed by Subsection

(e), which gives control of the timing of the motion to dismiss to the employer (and thus

contemplates the employer’s having been served), we decline to extend Bailey’s holding to allow

service on an employee sued in his official capacity to constitute effective service on his

governmental employer. In addition to the lack of statutory support for this extension of Bailey’s

holding, we observe that such a holding would result in practical problems with scheduling in the

trial court because in theory a plaintiff would never need to serve the employer as long as they

timely served the employee. Therefore, we hold that Tanner’s service on Scott did not constitute

effective service on the University.

5

Similarly, Tanner argues that the University’s attorneys, who also represented Scott,

“have been directing the strategy of the litigation from the inception,” and thus, the University

“should not be allowed to use its alleged ‘absence’ from the case as the basis for a statute of

limitations defense.” As the supreme court noted in Tanner II, “common representation alone does

not impose any duty on an unserved party.” 689 S.W.3d at 304.

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Having concluded that Tanner’s service on Scott does not constitute effective

service on the University, we need not reach the issue of whether Tanner’s service on Scott was

timely. See Tex. R. App. P. 47.1.

CONCLUSION

Having held that Tanner’s service on Scott did not constitute service on the

University, and thus, the University was not timely served, we affirm the trial court’s grant of the

University’s plea to the jurisdiction.

__________________________________________

Gisela D. Triana, Justice

Before Justices Triana, Theofanis, and Crump

Dissenting Opinion by Justice Crump

Affirmed

Filed: June 11, 2025

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