Opinion

Opinion issued November 10, 2011.

In The

Court of Appeals

For The

First District of Texas

NO. 01-11-00303-CV

GARLAND D. ANDERSON, M.D., RANDAL J. URBAN, M.D.,

BILLY U. PHILIPS, PH . D., VICENTE

A. RESTO, M.D., HENRY F. EPSTEIN, M.D., DAVID H. WALKER, M.D., COURTNEY M.

TOWNSEND, JR., M.D., AND ROBERT M. HIRSCHFELD, M.D., Appellants

V.

DAVID BESSMAN, M.D., HARI DAYAL, PH.D., S. DAVID

HUDNALL, M.D., GOLDA ANNE KEVETTER LEONARD, PH.D., GREGG T. NAGLE, PH.D.,

WILLIAM H. NEALON, M.D., BRIAN PEERCE, PH.D., NANCY K. WILLS, PH.D., AND

CHARLES E. HOLZER III, PH.D., Appellees

On Appeal from the 212th District Court

Galveston

County, Texas

Trial Court Cause No. 10CV4210

OPINION

Due

to financial exigencies that Hurricane Ike created, the University of Texas

Medical Branch at Galveston (“UTMB”) terminated a number of its faculty

positions. The medical school’s provost

coordinated the termination process, and department chairs recommended faculty members

from their departments for termination.

A group of faculty members, [1]

whose positions the school terminated, sued the provost and several department

chairs (collectively, “the administrators”), [2]

asserting various tort claims. Relying

on section 101.106(f) of the Texas Tort Claims Act, the administrators moved to

dismiss the suit brought against them. See Tex.

Civ. Prac. & Rem. Code Ann. § 101.106(f) (West 2010). The trial court denied the motion. On appeal, the administrators contend that

the trial court erred in refusing to dismiss the claims against them because

the decisions they made and carried out fell within the scope of their

employment, and thus section 101.106(f) precludes a suit against them in their

individual capacities. We agree. Accordingly, we reverse and remand with instructions

for the trial court to dismiss the claims against the administrators.

Background

In September 2008, Hurricane Ike

struck Galveston Island. The hurricane

damaged UTMB facilities and interrupted its operations and services. As a result, the Board of Regents declared a

state of financial exigency. It

instructed UTMB to cut approximately 3,000 full-time faculty and staff

positions.

The Rules and Regulations of the

Board of Regents provide the process for eliminating academic positions due to

financial exigency. Rule 31003 provides:

3.1 Committee

Recommendations. Upon determining the existence of a financial exigency and the

need to reduce academic positions or academic programs, or both, the president

. . . shall appoint a committee composed of faculty and administrative

personnel to make recommendations to the president as to which academic

position and and/or academic programs should be eliminated . . . .

3.2 Assessment

of Academic Program. The committee will

review and assess the academic programs . . . and identify those academic

positions that may be eliminated with minimum effect upon the degree programs

that should be continued. The review

will include, but not be limited to, an examination of the course offerings,

degree programs, teaching specialties, and semester credit hour production.

3.3 Review

consideration. Upon determining that

one or more academic positions in a degree program or teaching specialty should

be eliminated, the committee will recommend the particular position or

positions to be terminated by reviewing the academic qualifications and talents

of holders of all academic positions in those degree programs or teaching

specialties, the needs of the program they serve, past academic performance,

and the potential for future contributions to the development of the

institution . . . .

3.4 Tenure

Preference. If, in the opinion of the

committee, two or more faculty members are equally qualified and capable of

performing a particular teaching role, the faculty member or members having

tenure shall be given preference over non-tenured faculty . . . .

3.5 Recommendation. Upon completion of its review, the committee

shall promptly recommend to the president those persons who may be terminated,

ranked in order of priority, with the reasons for their selection. The president shall . . . determine which

academic positions are to be terminated because of the financial exigency and

shall give the holders of these positions written notice of the decision.

David Callender, UTMB’s President,

instructed the UTMB Provost, Garland Anderson, to recommend the faculty

positions to terminate. Pursuant to

this directive, Anderson met with the UTMB department chairs, including his

co-defendants, and instructed them to recommend which faculty members to

terminate from their respective departments.

Routinely, UTMB department chairs evaluate department members’

performance; occasionally, department chairs recommend promotions or terminations

within the department. Anderson asked

the department chairs to categorize members of their department into three

groups: (1) group “A” to include members crucial to the proper functioning of

the department; (2) group “B” to include members important to the department;

(3) and group “C” to include non-critical members whose loss would cause the

least disruption to the department.

At President Callender’s further

instruction, Anderson appointed a six-member faculty committee to review the

department chairs’ recommendations.

During the review, the department chairs explained their rationales for

placing individuals in group “C”. The

committee questioned the department chairs about their selections and

deliberated privately. The committee

then submitted a list of faculty members recommended for termination to Provost

Anderson. Anderson delivered the list to

President Callender. President Callender

fired the listed faculty members, including the faculty members who brought

this suit.

All of the faculty members who are

party to this suit, save two, appealed President Callender’s decision to a

faculty appeals committee. The appeals

committee concluded that Hurricane Ike had caused UTMB to experience a

financial exigency and that the decision to eliminate their positions as

faculty was neither arbitrary nor unreasonable.

The appeals committee recommended that President Callender uphold each

termination. President Callender accepted the recommendation.

In November 2010, some of the

aggrieved faculty members filed this suit for tortious interference with an

employment relationship, negligent misrepresentation, negligence, fraud, and

civil conspiracy. The faculty members

allege that the administrators violated Rule 31003, terminated faculty

positions based on financial incentives and personal animosities, and had acted

in bad faith in recommending their termination.

The administrators moved to dismiss

the suit against then, asserting that it was, as a matter of law, brought

against them in their capacities as UTMB employees. They requested that the trial court order the

faculty members to substitute UTMB as the defendant or suffer dismissal of the

suit under the election of remedies provision of the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f)

(allowing governmental employee to force claimant to dismiss employee and name

governmental employer as defendant instead by demonstrating that conduct at

issue was within scope of his or her employment). The faculty members responded that the

administrators’ conduct did not fall within the scope of their employment.

The parties proffered evidence in

connection with the jurisdictional challenge. See Bland Indep. Sch. Dist.

v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Anderson testified by

deposition that Rule 31003 prescribes procedures for terminating academic

positions in light of a financial exigency.

Anderson wrote to President Callender that the list he had prepared

complies with Rule 31003. In an

affidavit in the trial court, Anderson also averred that he had fired faculty

as a part of his duties as Provost of UTMB, and he exercised these duties at

President Callender’s direction. But he

admitted that he told one department chair not to recommend a newly hired

faculty member for termination. Also, at

President Callender’s request, Anderson removed a faculty member from the

termination list. According to Anderson,

personal animosity existed between certain department chairs and some of the

faculty members whose positions he terminated.

In one instance, a department chair recommended a faculty member for

termination, because his patients had a higher rate of complications and longer

hospital stays than another similarly situated faculty member. Anderson acknowledged that he and the department

chairs had received bonuses, in part, because UTMB met certain financial

objectives in 2009.

Discussion

Standard of Review

A plea to the jurisdiction challenges

the trial court’s subject-matter jurisdiction to hear the case. Bland

Indep. Sch. Dist. , 34 S.W.3d at 554 ; Kamel v. Univ. of Tex. Health Sci. Ctr. , 333 S.W.3d 676, 681 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). The existence of subject‑matter

jurisdiction is a question of law that we review de novo. State

ex rel. State Dep’t of Hwys. & Pub. Transp. v. Gonzalez , 82 S.W.3d 322,

327 (Tex. 2002); Kamel , 333 S.W.3d at

681 . We may not presume the existence of subject‑matter jurisdiction; the

burden is on the plaintiff to allege facts affirmatively demonstrating the

trial court’s subject-matter jurisdiction over the case. Tex. Ass’n of Bus. v. Tex. Air Control Bd. ,

852 S.W.2d 440 , 443–44, 446 (Tex. 1993); Kamel ,

333 S.W.3d at 681 . In deciding a plea to

the jurisdiction, a court may not consider the case’s merits, but only the

plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry.

Cnty. of Cameron v. Brown , 80 S.W.3d

549, 555 (Tex. 2002); Kamel , 333

S.W.3d at 681 .

Section 101.106(f) of the Texas Tort

Claims Act

Section 101.106(f) provides:

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 Ann. § 101.106(f). Thus, a defendant is

entitled to dismissal under section 101.106(f) upon proof that the plaintiff’s

suit (1) was based on conduct within the scope of the defendant’s employment

with a governmental unit and (2) could have been brought against the government

unit under the Tort Claims Act. Id. ; see also Franka v. Velasquez ,

332 S.W.3d 367, 369 (Tex. 2011); Univ. of Tex. Health Sci. Ctr. v. Bailey , 332 S.W.3d 395, 401 (Tex. 2011). The first component encompasses two

inquiries: whether the individual defendant was an employee of a governmental

unit and whether the acts alleged fall within the scope of that employment at

the relevant time. See Poland v.

Willerson , No. 01-07-00198-CV,

2008 WL 660334 , at *4 (Tex. App.—Houston [1st Dist.] March 13, 2008, pet.

denied); Turner v. Zellers ,

232 S.W.3d 414, 417 (Tex. App.—Dallas 2007, no pet.). The statute strongly favors dismissal of

governmental employees. Waxahachie Indep. Sch. Dist. v. Johnson , 181 S.W.3d 781, 785 (Tex. App.—Waco

2005, pet. denied).

Scope of Employment

It is undisputed that UTMB, a

governmental entity, employed the administrators. Accordingly, we turn to whether the

administrators acted within the scope of their employment when they recommended

that the faculty members’ positions be terminated.

The Tort Claims Act defines “scope of employment” as

“the performance for a governmental unit of the duties of an employee’s office

or employment and includes being in and about the performance of a task

lawfully assigned to an employee by competent authority.” Tex.

Civ. Prac. & Rem. Code Ann. § 101.001(2). Compare

Poland , 2008 WL 660334 , at *7 (holding that doctor, who was supposedly

negligent in performing surgery on patient, acted in the scope of employment

within meaning of Act because he averred that he provided medical care in

course and scope of employment with governmental unit) and Harris Cnty. v. Gibbons , 150 S.W.3d 877, 883 (Tex. App.—Houston

[14th Dist.] 2004, no pet.) (holding that off-duty police officer, who

rear-ended another car, acted in scope of employment within meaning of Act

because officer was checking license number of different vehicle to determine

whether it was stolen when accident happened) with Kelemen v. Elliott , 260 S.W.3d 518, 524 (Tex. App.—Houston

[1st Dist.] 2008, no pet.) (finding no evidence that officer was acting in

scope of employment when he kissed fellow officer without consent while on duty)

and Terrell ex rel. Estate of Terrell v.

Sisk , 111 S.W.3d 274, 278 (Tex. App.—Texarkana 2003, no pet.) (holding that

employee, who killed person with car, did not act in scope of employment

because she was on her way to personal appointment in her own car).

The faculty members maintain that the administrators

acted outside the scope of their employment because they acted without

authority. According to the faculty

members, the department chairs did not use Rule 31003 factors to decide whom to

recommend to fire. In addition, they

allege that Anderson did not allow the review committee to properly review the

department chairs’ recommendations because the review committee considered only

faculty members whom the department chairs had categorized as non-critical

members.

“An official acts within the scope of her authority if

she is discharging the duties generally assigned to her.” City of Lancaster v. Chambers , 883 S.W.2d 650, 658 (Tex. 1994)

(finding that on-duty police officers, pursuing suspect in squad car, did not

act outside scope of authority in driving without regard for safety of others);

see also Ballantyne v. Champion Builders, Inc. , 144

S.W.3d 417, 425 (Tex. 2004) (holding that members of city’s Board of Adjustment

acted within scope of authority in revoking building permit even though court

had found that members were incorrect in revoking permit); Arbelaez v. Just Brakes Corp. , 149 S.W.3d 717 , 723 n.7 (Tex. App.—Austin

2004, no pet.) (“We have been unable to find a single case in Texas

jurisprudence that supports the proposition that an employee is not

within the course and scope of employment when the employee carries out the

express instructions of his employer in an activity that benefitted, even

indirectly, the employer’s business.”).

Thus, we examine whether the administrators’ acts fall within the duties

generally assigned to them.

We conclude that they do. President Callender directed

Provost Anderson to recommend faculty members to fire so that UTMB could make

the required reductions in faculty.

Anderson directed the department chairs to assess faculty members based

on their respective department’s needs.

Part of a department chair’s job is to evaluate the performance of the

faculty members in their department. At

President Callender’s request, Anderson chose a committee to review the

department chairs’ recommendations. Each

of the administrators’ challenged acts fall within these tasks—ones, without

exception, assigned to them by a competent authority for the benefit of UTMB. Rule 31003 governs the conduct of the

President and the review committee in terminating faculty members in a

financial exigency. But Rule 31003 governs

neither the department chairs nor the provost in this matter. It does not, for example, preclude the

President from requesting that the provost oversee the process for a reduction

in number of faculty. Rule 31003 also

does not preclude department chairs, at the provost’s request, from

categorizing faculty members to assist the review committee in its evaluation. No evidence exists that Anderson limited the

factors that the review committee could use in its assessment.

The faculty members contend that the administrators acted

outside the scope of their employment because they brought personal motives to

bear in deciding who should be fired. So

long as it falls within the duties assigned, an employee’s conduct is “within

the scope of employment,” even if done in part to serve the purposes of the

employee or a third person.

Dictaphone Corp. v. Torrealba , 520 S.W.2d 869, 872 (Tex. Civ.

App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.) (employee’s performance

of duties to serve himself or a third person did not take him outside the scope

of employment); Best Steel Bldgs., Inc. v. Hardin , 553 S.W.2d 122, 128

(Tex. Civ. App.—Tyler 1977, writ ref’d n.r.e.) (“The fact that the preponderate

motive of the servant is to benefit himself or a third person does not prevent

the act from being within the scope of employment.”). If the purpose of serving the employer’s

business motivates the employee, his acts are within the scope of employment. Best Steel Bldgs. , Inc. , 553

S.W.2d at 128 ; Arbelaez , 149 S.W.3d

at 723 . The administrators’ actions here

fall within the scope of their employment because they carried out their

supervisors’ directives for the benefit of UTMB—even if personal motives in

part persuaded them in the performance of their duty. We hold that the faculty members have not

alleged any acts against the administrators that fall outside the general scope

of their employment. See Chambers ,

883 S.W.2d at 658 (rejecting notion that high speed chase was outside the scope

of police officer’s work because they lacked discretion to drive in way that

endangers others); see also Ballantyne ,

144 S.W.3d at 425 (holding that members of city’s Board of Adjustment acted

within scope of authority in revoking building permit where statute conferred

authority to revoke, even though court had determined that the Board was

incorrect).

Suit Could Have Been Brought under

the Act against UTMB

Given that the pleadings allege acts

within the course and scope of the administrators’ employment, the faculty

members’ suit could have been brought under the Tort Claims Act against

UTMB. See Tex. Civ. Prac. &

Rem. Code Ann. § 101.106(f); Franka , 332 S.W.3d at 375 . In Franka , the Texas Supreme Court construed

the phrase “could have been brought” in section 101.106(f), holding that, “‘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.’” Id. at 369

(quoting Mission Consol. Indep. School

Dist. v. Garcia , 253 S.W.3d 653, 659 (Tex. 2008)).

The faculty members’ causes of action

are tort claims. Because we have

rejected their contention that the administrators’ actions were outside the

scope of their employment, we hold that the faculty members’ suit could have

been brought under the Act. See City of El Paso v. Heinrich , 284

S.W.3d 366, 372 (Tex. 2009) (holding that suit alleging that official acted

without authority “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”). Section 101.106(f) applies, and dismissal of

the administrators is proper.

Conclusion

We hold that the administrators acted

within the scope of their employment.

Thus, the faculty members’ suit against UTMB could have been brought

under the Texas Tort Claims Act. Because

the administrators met both requirements of section 101.106(f), the trial court

erred in denying their motion to dismiss.

See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). We

therefore reverse the order of the trial court and remand the case with

instructions for the trial court to dismiss the claims against the

administrators.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Bland and Huddle.

[1]

David Bessman, M.D., Hari Dayal,

Ph.D., S. David Hundall, M.D., Golda Anne Kevetter Leonard, Ph.D., Gregg T.

Nagel, Ph.D., William H. Nealon, M.D., Brian Peerce, Ph.D., Nancy K. Wills,

Ph.D., and Charles E. Holzer III, Ph.D.

[2]

The provost is Garland Anderson,

M.D., and the group of department chairs includes Randal J. Urban, M.D., Billy

U. Phillips, Ph.D., Vicente A. Resto, M.D., Henry F. Epstein, M.D., David H.

Walker, M.D., Courtney M. Townsend, Jr., M.D., and Robert M. Hirschfeld,

M.D.