Opinion

IN THE SUPREME COURT OF TEXAS

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No. 07-0131

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John Christopher Franka , M.D., and Nagakrishna

Reddy, M.D., Petitioners,

v .

Stacey Velasquez and Saragosa Alaniz , both Individually

and as next friends of their Minor Child, Saragosa

Mario Alaniz , Respondents

════════════════════════════════════════════════════

On Petition for Review from

the

Court of Appeals for the Fourth District of

Texas

════════════════════════════════════════════════════

Argued September

10, 2008

Justice Medina , joined by

Justice Lehrmann , dissenting.

In Kassen v. Hatley , we held that government-employed medical

personnel were not entitled to the defense of official immunity when sued

individually for the negligent exercise of purely medical judgment. 887 S.W.2d 4, 11 (Tex. 1994). Recognizing that medical

decisions were typically unrelated to governmental discretion, we concluded that

public-sector patients should have the same rights as private-sector patients

when only medical judgment was at issue. Id . 11–12. Today, the Court

abandons that principle, not because Kassen was

wrongly decided, but because the Legislature has amended section 101.106 of the

Tort Claims Act. Tex. Civ. Prac. & Rem. Code §

101.106. Because this amendment does not speak to the

official immunity of physicians accused of malpractice and does not require that

we abandon Kassen , I respectfully dissent.

I

The Texas Tort Claims Act 1 , does not waive the state’s immunity

generally for the medical malpractice of its doctors. Instead, it waives the

state’s sovereign or governmental immunity for, among other things, personal injury “caused by a condition or use of

tangible . . . property.” Tex. Civ.

Prac. & Rem. Code §

101.021(2). Texas courts have struggled with the meaning

and application of the quoted phrase since the Act’s adoption over forty years

ago. See Texas Dep’t of Criminal Justice v. Miller , 51 S.W.3d 583, 590

(Tex. 2001) (Hecht, J. concurring) (lamenting that judicial decisions “have done

so little to infuse the Act’s use-of-property standard with meaning that the

task now appears hopeless”). Although the standard lacks clarity, it is clear

that medical negligence will sometimes not involve the use of property. Consider

the facts in this case.

The asserted medical malpractice concerns a brachial plexus injury to an

infant during delivery. The brachial plexus is a network of nerves that conducts

signals from the spine to the shoulder, arm, and hand. These nerves were

allegedly damaged when one of the infant’s shoulders became stuck during

delivery and was accidently broken.

The parents’ theory was that the doctors ignored numerous warning signs

indicating the need for a Caesarean delivery. The parents supported their theory

with an expert report that listed the risk factors presented in the case. The

report concluded that the doctors had “departed from the standard of care by

failing to recognize that [the mother and fetus] demonstrated these six

significant risk factors for the development of shoulder dystocia leading to an improper attempt at vaginal delivery

rather than a Caesarean delivery that would have avoided the shoulder fracture

and brachial plexus nerve injury sustained at birth.”

The doctors moved to dismiss, contending that the parents should have

sued their employer, UTHSC, rather than the doctors individually because a

vacuum extractor was used during delivery. To invoke a waiver of governmental

immunity conditioned upon a “use of property” there must be a causal link

between the property’s use and the patient’s injury. 2 The court of appeals concluded that there

was no such causal link here because neither the pleadings nor the evidence

implicated the vacuum extractor as a cause of injury. 216

S.W.3d at 411-13. The court observed that the progress notes, the expert

report, and the deposition testimony of the two doctors established that the

vacuum extractor was used only to deliver the infant’s head. Id . at 411. A number of additional maneuvers,

involving only the doctors’ hands, were used after that to deliver the infant’s

shoulders at which time the injury occurred. Id .

When a governmental employee causes injury, section 101.106 of the Tort

Claims Act purports to give the injured person a choice of suing the government,

or its employee, or both. Tex. Civ.

Prac. & Rem. Code §

101.106. I say purports because the Court holds that this

provision is a sham; it does not actually provide the putative plaintiff any

choice in the matter. The statute’s title and text indicate, however, that the

Court is wrong. The statute plainly puts the plaintiff to an election 3 at the time of filing suit with different

consequences following the various choices.

Although not pertinent to this appeal, the statute also covers the

consequences of a settlement or judgment. Id . §

101.106(c), (d). Before its amendment in 2003, section 101.106 applied

exclusively to settlements and judgments and provided simply that a plaintiff

could not sue the employee after a judgment or settlement with the government. 4 We characterized the employee’s right

under the former provision as an immunity from

liability. Dallas Cnty . Mental Health & Mental Retardation

v. Bossley , 968 S.W.2d 339, 344 (Tex. 1997); see also Newman v.

Obersteller , 960 S.W.2d 621, 622 (Tex. 1997). The

2003 amendments have expanded the statute’s scope but have not changed its

character. The statute continues to create immunity from liability but now

includes decisions made at the time of filing suit in addition to settlements

and judgments.

Under the current statute, a plaintiff who sues only the government is

barred from subsequently suing the government’s employee “regarding the same

subject matter.” Tex. Civ. Prac. & Rem. Code §

101.106(a). The plaintiff may elect to sue both the

government and its employee, but the statute grants the government the

unconditional right to have its employee dismissed from the suit if the

plaintiff makes that election. Id . § 101.106(e).

If the plaintiff does not want to sue the government, the plaintiff may sue the

employee individually in which case the statute bars the plaintiff from

subsequently suing the government “regarding the same subject matter unless the

governmental unit consents.” Id . § 101.106(b).

Even when the plaintiff sues the employee individually, the employee may obtain

his or her dismissal under the conditions set out in section 101.106(f).

Subpart (f) provides that the employee shall be dismissed when the suit

“is based on conduct within the general scope of that employee’s employment and

. . . could have been brought under this chapter against the governmental unit.”

Id. § 101.106(f). There are therefore three

conditions for the employee’s dismissal under subpart (f): (1) the employee must

have been employed by a governmental unit at the time of the incident; (2) the

suit must be based on conduct within the scope of that employment; and (3) the

plaintiff must have been able to bring the claim against the governmental

employer under this chapter. “Under this chapter” refers to chapter 101 of the

Civil Practice and Remedies Code, commonly known as the Texas Tort Claims Act.

Id . § 101.002. Although there is some question

about the employment of one of the doctors in this case, the question as to both

doctors is whether the plaintiffs’ medical malpractice action “could have been

brought” against the governmental unit, UTHSC, under the Tort Claims Act.

II

The Court and I disagree about the meaning of the last condition—whether

suit “could have been brought under this chapter against the governmental unit.”

I would hold that this condition refers to those tort claims for which the

government has consented to suit under the Tort Claims Act. The Court attributes

a broader meaning to the phrase, indicating that it includes all tort claims

filed against a governmental employee individually without regard to whether the

government has consented to be sued.

The Court reasons that because it is possible to sue the government for

medical malpractice under the Tort Claims Act, albeit under limited

circumstances, plaintiffs must sue the government, instead of their doctors

individually, even when those limited circumstances do not exist. In the Court’s

view, the statute is not about giving the plaintiff the right to choose the

appropriate defendant but rather about making the government the defendant in

all tort cases arising out of its employees’ conduct. The Court finds it

immaterial that the plaintiffs filed their tort claim against the doctors

individually, did not seek to join the government, and presumably do not believe

they have an actionable tort claim against the government because governmental

immunity has not been waived as to their claim. By ignoring the plaintiffs’

election and the reasons for it, the Court effectively reads the “could have

been brought” condition out of the statute, holding instead that plaintiffs may

sue only the government for the medical malpractice of its publicly-employed

physicians. “Whatever merits this holding may have as a rule of law do not

include fidelity to language and precedent.” Kerrville

State Hosp. v. Fernandez , 28 S.W.3d 1, 14 (Tex. 2000) (Hecht, J.

dissenting.)

The Attorney General, as Amicus Curiae in this case, shares my concern

about the Court’s construction of the statute. He appropriately notes that the

phrase “could have been brought” is unique to subpart (f). In contrast,

references to the filing of suit are made repeatedly throughout section 101.106.

See, e.g., Tex. Civ. Prac. & Rem.

Code § 101.106 (a), (b), (e),

(f). The Attorney General submits that the Legislature

purposefully chose the term “brought” rather than “filed” to indicate a

substantive distinction from the mere physical process reflected in the

introductory clause of subpart (f) (“[ i ]f a suit is

filed”) and the similar use of the term “filing” or “filed” in subparts (a),

(b), and (e). The Attorney General further submits that the Legislature intended

for the phrase “could have been brought” to mean something different than could

have been filed. To equate “brought” with “filed”, argues the Amicus, is to

render subpart (f)’s principle condition superfluous. Anyone can physically file

a claim against the government, but not every claim filed against the government

is actionable. The Attorney General concludes that the “could have been brought”

condition can only refer to actionable claims against the government, that is,

tort claims for which the government has consented to be sued.

I agree that the phrase “could have been brought” refers to actionable

claims against the government. Unlike the Court, I believe that the “Election of

Remedies” provision puts the plaintiff to an election at the suit’s outset as

its title suggests. And although the statute seeks to shape that election, it

does not prohibit plaintiffs from suing governmental employees in their

individual capacity.

When a plaintiff elects to sue only the governmental

employee as in this case, subparts (b) and (f) are implicated by the plaintiff’s

choice. Tex. Civ. Prac. & Rem. Code §§ 101.106(b),

(f). Subpart (b) binds the plaintiffs to their election and

bars them from suing the government regarding the same subject matter. Id . §101.106(b). Subpart (b), however, excepts from its bar certain claims for which the government

has given its consent, and subpart (f) explains the procedure to obtain this

exception. Under subpart (f), the plaintiff is given a limited time to

reconsider its suit against the employee and decide anew whether the government

should have been sued instead. If the government has consented to suit, the

plaintiff is well-advised to substitute the government for two reasons. First,

the plaintiff cannot prevail on its claim against the employee if the

plaintiff’s suit “could have been brought against” the government. Id. § 101.106(f). And second, the plaintiff cannot sue

the government under subpart (f)’s exception if the claim against the employee

is not promptly dismissed. 5 Id.

Subpart (f)’s “could have been brought” condition refers back to subpart

(b)’s requirement of government consent. A suit that “could have been brought”

against the government then is one for which the government has consented to be

sued. Together subparts (b) and (f) require proof of the government’s consent to

suit as a condition for the employee’s dismissal.

The government consents to suit “through the Constitution and state

laws.” Mission Consol. Indep . Sch. Dist. v. Garcia , 253 S.W.3d

653, 660 (Tex. 2008). The Tort Claims Act is one such law,

providing consent for certain tort claims involving the operation of

automobiles, the condition or use of property, and premises liability. Tex. Civ. Prac. & Rem.

Code §§ 101.021,

101.022. The government, however, has not specifically

consented to be financially responsible for the medical malpractice of its

doctors.

A publicly-employed doctor, who is sued individually for malpractice but

seeks to obtain his or her dismissal under subpart (f), must therefore establish

the government’s consent to be sued for the specific conduct at issue. If this

cannot be established, then the government has not consented to suit, and the

plaintiff’s claim against the employee individually must proceed. Subpart (b)

requires nothing less. See Tex.

Civ. Prac. & Rem. Code

§ 101.106(b) (describing the suit against the employee as an “irrevocable

election” that “immediately and forever bars” suit against the government unless

it “consents”).

The trial court therefore correctly denied the motion to dismiss because

under the present record the doctors did not establish the government’s

consent.

III

The Court maintains, however, that requiring the doctors to prove the

government’s consent as a condition to dismissal under subpart (f) would be

inconsistent with a recent case in which we applied another part of the statute.

See Mission Consol. Indep . Sch. Dist. ,

253 S.W.3d at 658-60 (applying § 101.106 (e)). I fail to see the inconsistency.

Mission involved subpart (e), rather than (f), because the plaintiffs

filed suit against the government and its employees. Because the respective

subparts apply to distinctly different circumstances, there is no conflict.

In Mission , three terminated school district employees sued the

district and its superintendent for wrongful termination and various common law

claims that did not fit under the Tort Claims Act’s limited waiver of immunity.

Id . at 655. One issue in the case concerned the

application of section 101.106(e). The court of appeals concluded that the

section did not apply because none of the plaintiffs’ claims fit within the Tort

Claims Act’s waiver of immunity. The court reasoned that none of the claims

were, in the words of the statute ,“ under this chapter.” Id . at

658.

We disagreed, observing that any tort claim against the government, even

those for which immunity had not been waived, falls “under this chapter” because

the Tort Claims Act is the only means to sue the government for a tort:

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.

Id . at 659. Mission then merely followed the

rule that a tort claim against the government is “under” the Act even when the

Act does not waive immunity.

This rule has never been extended to tort suits against government

employees individually, but the Court submits that the circumstances are similar

enough that it should be. I disagree. The circumstances are not similar, and the

statute treats each situation differently.

Subpart (e) grants the government an unconditional right to have its

employee dismissed from the suit when the plaintiff elects to sue both the

government and its employee. Contrast that with the conditions attached to the

employee’s motion to dismiss under subpart (f). Clearly, the government’s burden

under (e) is much different.

When a plaintiff sues both the government and its employees under (e),

the employees have been joined in their official capacity as a matter of law,

and the government has the right to have them dismissed. When government

employees are sued individually under subpart (f), however, their status is a

question of fact. In this instance, the employees themselves must establish

their official capacity by proving, among other things, that suit could have

been brought against their employer. If the employees cannot carry this burden,

the suit against them in their individual capacity must proceed. In contrast,

subpart (e) imposes no burden on the government to demonstrate that suit could

have been brought against it under the Tort Claims Act for a simple reason: the

plaintiff has already brought suit against the government.

The statute therefore treats employees sued individually differently than

it does employees sued together with the government. The Tort Claims Act applies

as a legal matter under subpart (e) because the government has been sued, but

its application under subpart (f) depends on factual proof. The burden of that

proof must fall on the employee, the party who must move to dismiss the case

under subpart (f).

The statute carefully distinguishes between suits against the government

and suits against government employees individually. When referring to suits

filed or brought against the government the statute inserts the phrase “under

this chapter” but when referring to suits against the employee individually the

phrase is omitted. Compare Tex.

Civ. Prac. & Rem. Code §§ 101.106(a) , 6 (c), 7 & (e) 8 with id. § § 101.106(b) , 9 (d), 1 0 & (f). 1 1 Although “under this chapter” appears in

subpart (f) when referring to the possibility of a suit against the government,

the phrase is not used to describe the suit actually filed against the employee

individually. See id . § 101.106(f) (“If suit is filed against an employee

of a governmental unit based on conduct . . . and if it could have been brought

under this chapter against the governmental unit . . .”). Suits against

government employees individually are not “under this chapter” because a

plaintiff does not need the government’s consent to seek a personal liability

judgment against an individual. Because subparts (e) and (f) apply under

different circumstances, our decision in Mission is in my view not

particularly relevant to the decision in this case.

IV

I further disagree with the Court’s principal assumption that the 2003

amendments were intended to overrule our decision in Kassen v. Hatley .

The case has no apparent connection to these amendments. Kassen is not mentioned in any floor debate, bill

analysis, or other piece of legislative history. Ordinarily when the Legislature

intends for legislation to supercede one of our

decisions, it will at least mention the object of its disagreement with us.

The only support the Court can muster for its unfounded assumption is a

law review article, published two years after the amendment and authored by a

private party, whom the Court generously describes as a “participant in the

legislative process.” ___ S.W.3d at ___. We have

repeatedly expressed “our consistent view that ‘[e] xplanations produced, after the fact, by individual

legislators are not statutory history, and can provide little guidance as to

what the legislature collectively intended.’” Entergy Gulf States, Inc. v.

Summers , 282 S.W.3d 433, 444 (Tex. 2009) (quoting In re Doe , 19

S.W.3d 346, 352 (Tex. 2000) (citations and quotations omitted). In this

particular case, the supposition of a private observer apparently carries more

weight. If the Legislature intended for this legislation to prohibit medical

malpractice claims against publicly-employed physicians, it has done a masterful

job of concealing that intent.

Because the law review article, on which the Court relies, is not

particularly convincing, the Court offers another purpose for the legislation.

The Court suggests that the 2003 amendment may have been intended to conform the Texas Tort Claims Act to the Federal Tort Claims

Act. More specifically, the Court imagines that the 2003 amendment to section

101.106, commonly known as the “Election of Remedies” provision, is Texas’

version of the Federal Employees Liability Reform and Tort Compensation Act,

commonly known as the Westfall Act. Again, evidence to support its thesis is

non-existent.

One need only compare the language of the respective bills to reveal the

utter folly of this notion. The Westfall Act provides that the remedy provided

by the Federal Tort Claims Act for injury, property loss, or death “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” and expressly “ preclude[s] ” any other action

“relating to the same subject matter against the employee or the employee’s

estate.” See ___ S.W.3d at ___ n.69 (quoting the Westfall Act, 28 U.S.C.

§ 2679 (b )( 1) (emphasis added). In contrast to the

exclusive and preclusive nature of the Westfall Act, section 101.106 ostensibly

provides a choice of remedies.

In lieu of examining section 101.106’s language, the Court assumes that

the Texas Tort Claims Act should be like the federal act. There are, however,

significant differences between the two. For instance, the Federal Tort Claims

Act does not condition the waiver of governmental immunity on the use of

automobiles or the condition or use of real or personal property, as does Texas,

but instead broadly permits persons to sue the United States in federal court

for money damages

for injury

or loss of property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while acting within

the scope of his office or employment, under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred.

28 U.S.C. §

1346 (b )( 1). The federal act thus generally waives

governmental immunity for the negligence of its employees, which would include

medical malpractice. There is no possibility for the

disconnect between the doctor’s liability and that of the government

employer as under Texas law. This difference reasonably explains why our

Legislature chose, when amending our Act, to require proof of the government’s

consent as a condition for the dismissal of the plaintiff’s otherwise

actionable, common law claim against the doctor individually.

Enamored more with the federal act than our own, the Court has chosen to

conform section 101.106 to the federal scheme. Instead

of six subparts, dealing with different combinations of defendants and the

possibilities of settlement or judgment, the Court concludes that the

Legislature intended simply this: If suit is filed against an employee of a

governmental unit based on conduct within the general scope of that employee’s

employment, the suit shall be dismissed on the employee’s motion and the

governmental unit substituted as the defendant. Because the Westfall Act

precludes suit against government employees, the Court concludes our now

misnamed election-of-remedies provision should do the same.

Section 101.106’s language reveals, however, that our Legislature did not

intend to mimic the Westfall Act. While the Legislature intended to encourage

suits against the government in lieu of actions against government employees,

section 101.106 does not compel it. Instead, it requires that plaintiffs choose

their defendants wisely or suffer the consequences. Subpart (f) is the

centerpiece of the scheme, creating a new immunity or “official capacity”

defense for employees who can establish that the government should be, or should

have been, the defendant.

This “official capacity” defense should not be confused with the common

law doctrine of official immunity. Official capacity as used in this statute is

shorthand for the conduct of a government employee meeting section 101.106(f)’s

conditions: a suit “based on conduct within the general scope of that employee’s

employment [that] could have been brought . . . against the governmental unit[ .]” Tex. Civ.

Prac. & Rem. Code §

101.106(f). Official immunity, on the other hand, “protects

government officers from personal liability in performing discretionary duties

in good faith within the scope of their authority.” Kassen , 887 S.W.2d at 8 .

Government medical personnel, such as the doctors here, enjoy immunity from

liability when exercising their governmental discretion, but this immunity does

not extend to medical discretion. Id. at 11–12. The exercise of medical

discretion, however, does not disqualify doctors from being employees of a

governmental unit for purposes of the “official capacity” defense extended under

section 101.106(f). Murk v. Scheele, 120 S.W.3d 865,

867 (Tex. 2003) (per curiam ).

To establish this defense, the doctors had to prove that: (1) the suit

against them was “based on conduct within the general scope of that employee’s

employment” and (2) the suit “could have been brought under [the Tort Claims

Act] against the governmental unit[ .]” Tex. Civ. Prac. & Rem.

Code § 101.106(f).

Substituting the federal scheme for our Legislature’s, the Court reads the

“could have been brought” condition out of the statute or, in the words of our

Attorney General, renders the condition “superfluous.”

Statutory language should not be read as pointless if it is reasonably

susceptible of another construction. City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.

1995). Moreover, when construing a statute, we are to consider the law’s

objective and the consequences of a particular construction. Tex. Dep’t of

Transp. v. City of Sunset Valley , 146 S.W.3d 637,642 (Tex. 2004) (citing

Tex. Gov’t Code § 311.023(1), (5)). Consider

the consequences of the Court’s interpretation—that “could have been brought”

refers to nothing more than the physical act of filing suit.

Under that view, the statute nonsensically requires the plaintiff to

bring a claim over which the court lacks subject matter jurisdiction. See, e.g., Harris Cnty .

v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004) (noting that sovereign immunity

“defeats a trial court’s subject matter jurisdiction unless the state expressly

consents to suit”). That suit “could” actually be brought against the government

implies a legal possibility, but it is not possible to sue the government

without its consent. Worse yet, the claimant is

compelled to dismiss an actionable medical malpractice claim against his or her

doctor for the non-existent claim against the government. If this were to occur,

one might reasonably question the constitutionality of subpart (f), as applied,

under our Open Courts provision. Tex.

Const.

art. I § 13. We presume, however,

that the Legislature intended to comply with the state and federal

constitutions, Tex. Gov’t Code §

311.021(1), and “we are obligated to avoid constitutional problems if possible.”

Brooks v. Northglen Ass’n , 141 S.W.3d 158, 169 (Tex. 2004). The

Court’s opinion ignores these rules of statutory construction.

V

Finally, the Court justifies its misconstruction of the statute by

suggesting that it would create perverse incentives, conflicts of interest, or

opportunities for gamesmanship if the employee were required to establish the

government’s consent to be sued as a condition for dismissal. As to its

gamesmanship charge, the Court suggests that the government might be able to

defeat the plaintiff’s claim against its employee by merely stipulating to the

waiver of governmental immunity after it is too late for the plaintiff to sue

under the Tort Claims Act. This is hardly a legitimate concern. The state’s

immunity is waived “through the Constitution and state laws,” not by the

stipulations of its functionaries. See Mission , 253

S.W.3d at 660 . Even if UTHSC were willing to stipulate that the doctor’s

use of the vacuum extractor caused the infant’s brachial plexus injury, a court

would not be required to accept its self-serving declaration as fact. That the

Court would even consider this a possibility underscores its misunderstanding of

the statute and its imagined “perverse” effects.

What could possibly be more perverse than the Court’s application of this

statute? Under the Court’s view, the plaintiffs must give up their common law

medical malpractice claim against the doctors for a new suit against the

government, a suit which in all likelihood will be dismissed for want of

jurisdiction. Since the plaintiffs have not pled a cognizable claim under the

Tort Claims Act, why would the government not file a plea to the

jurisdiction?

Contrary to the Court’s concern, section 101.106 does not foster conflict

between the government and its employee because it compels the plaintiff to

choose the defendant at the beginning of the case. The plaintiff may sue the

government, the government’s employee, or both with different consequences

attaching to the various elections. When the plaintiff chooses to sue only the

employee, subpart (b) bars the plaintiff from suing the governmental unit

“regarding the same subject matter unless the governmental unit consents.” Tex. Civ. Prac. & Rem.

Code § 101.106(b).

Although ostensibly barred under (b), subpart (f) reopens the issue of the

government’s consent, providing a new opportunity for the plaintiff to sue the

government. Id . § 101.106(f). Subpart (f)

therefore gives the plaintiff a second chance to sue the government, but it only

gives the plaintiff thirty days to make that decision. 1 2 Id .

The plaintiffs here have elected to stand on their suit against the

doctors and thus are now barred from suing the government. Id . § 101.106(b). If the doctors can prove that the

Tort Claims Act would have waived the government’s immunity but for the plaintiffs election to sue them individually (that suit

“could have been brought . . . against the governmental unit”), the doctors will

establish their right to be dismissed, but not their employer’s liability. Id . § 101.106(f). The Court’s imagined conflict of

interest does not exist because subpart (b) “bars any suit or recovery by the

plaintiff against the governmental unit[ .]” Id . § 101.106(b). Under these circumstances, section

101.106(f) merely provides the employees with an

immunity from liability under its “official capacity” defense.

The Court and I agree that the employee may establish a defense or

immunity under section 101.106’s terms, but we disagree on what those terms

entail. In the Court’s view, all that is required for the employee’s dismissal

under subpart (f) is proof of the doctors’ employment status and conduct within

the scope of that employment. One of the doctors has supplied this proof so I am

somewhat puzzled by the Court’s decision to remand the claim against him for

further proceedings. The statute gives the plaintiff only thirty days to dismiss

the employee and substitute the government. Since the time for suing the

government has passed, and the plaintiff cannot, according to the Court, sue the

employee, what remains to be done? All that occurs to me is that a remand

affords the plaintiffs an opportunity to raise any constitutional questions

regarding the application of this statute before dismissal. I agree they should

have that opportunity, but they would not need it, if the Court merely applied

section 101.106 according to its terms.

*

* * * *

I recognize that it is our responsibility to accept the Legislature’s

intent even when that intent is to overrule one of our previous opinions. Leos v. State Emp. Workers’ Comp. Div. , 734 S.W.2d 341, 343

(Tex. 1987). But we should not loosely ascribe such intent to legislation

simply to avoid questions of stare decisis . If

a majority of the Court now feels that the distinction drawn in Kassen between government and medical discretion was

in error, we should address the matter directly rather than engage in a

distortion of legislative intent.

When we construe a statute, our primary goal is to ascertain and give

effect to the Legislature’s intent. Hernandez v. Ebrom , 289 S.W.3d 316, 318 (Tex. 2009). When we

can, we rely on the primary source of that intent, the language of the statute.

Phillips v. Bramlett , 288

S.W.3d 876, 880 (Tex. 2009). The statutory text, title and design of

section 101.106 plainly put the plaintiff to an election of remedies. Because

the Court’s interpretation takes that election away, requiring the plaintiff to

sue only the government, I respectfully dissent. I would affirm the court of

appeals’ judgment.

______________________________

David M. Medina

Justice

OPINION DELIVERED: January 21,

2011

1

The Tort Claims Act waives the state’s sovereign

immunity “for certain tort claim involving automobiles, premises defects, or the

condition or use of property.” Stephen F. Austin State Univ. v. Flynn ,

228 S.W.3d 653, 657 (Tex. 2007); see also Tex. Civ. Prac. & Rem. Code §§

101.001(3 )( A)-(B), 101.021, 101.022,

101.025.

2

See Tex. Natural Resource & Conservation

Comm’n v. White , 46 S.W.3d. 864, 868, 869 (Tex. 2001) (property’s use

“must have actually caused the injury”); Dallas Cnty . Mental Health & Mental Retardation v. Bossley ,

968 S.W.2d 339, 344 (Tex. 1997) (“personal injury or death must be proximately

caused by a condition or use of tangible personal or real

property”).

3 § 101.106.

Election of Remedies

(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.

Tex. Civ.

Prac. & Rem. Code §

101.106.

4

The former provision, titled, “Employees Not

Liable after Settlement or Judgment,” provided that “[a] judgment in an action

or a settlement of a claim under [the Tort Claims Act] bars any action involving

the same subject matter by the claimant against the employee of the governmental

unit whose action or omission gave rise to the claim.” See id. § 101.106

(1997) (amended by Act of June 2, 2003, 78th Leg., RS, ch . 204, § 11.05, 2003 Tex. Gen. Laws 886 ).

5

If the plaintiff does not dismiss the case against

the employee within thirty days of the employee’s motion under subpart (f),

subpart (b) will bar any subsequent action against the government. Tex. Civ. Prac. & Rem.

Code § 101.106(b),

(f).

6

“The filing of a suit under this chapter against a

governmental unit constitutes an irrevocable election . . .”

7

“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 . . .”

8

“If a suit is filed under this chapter against

both a governmental unit and any of its employees . . .”

9

“The filing of a suit against any employee of a

governmental unit constitutes an irrevocable election . . .”

10 “A judgment

against an employee of a governmental unit shall immediately and forever bar . .

.”

11 “If a suit is

filed against an employee of a governmental unit based on conduct . .

.”

12 Under §

101.106(b), a plaintiff who sues an employee cannot thereafter sue the

governmental employer without its consent. The government consents to its

substitution as defendant under § 101.106(f) but that consent terminates 30 days

after the filing of the employee’s motion to

dismiss.