OPINION
No. 04-06-00833-CV
Kia BAILEY, Individually and Larry Bailey, Individually,
Appellants
v.
Albert E. SANDERS, M.D.,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-17510
Honorable David A. Berchelmann, Jr., Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: April 16, 2008
AFFIRMED
This appeal stems from a medical negligence claim filed by Appellants Kia Bailey and
Larry Bailey (collectively “Baileys”), initially, solely against Appellee Dr. Albert E. Sanders. In
two issues, the Baileys assert that the trial court erred in granting Dr. Sanders’s motion for
substitution or dismissal based on Section 101.106(f) of the Texas Civil Practice and Remedies
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Code, 1 when (1) Dr. Sanders failed to establish that the Baileys “could have brought” their
claims against the University of Texas Health Science Center (“UTHSC”) and (2) section
101.106(f) violates the open courts provision of the Texas Constitution. Because Dr. Sanders
established the application of section 101.106(f), as a matter of law, and the Baileys failed to
overcome the legal presumption that section 101.106(f) is constitutional, we affirm the judgment
of the trial court.
BACKGROUND
In late 2002, Appellant Kia Bailey began experiencing back pain and as a result consulted
with Dr. Sanders. Kia continued to experience pain and in April of 2004 underwent a surgical
procedure performed by Dr. Sanders at Christus Santa Rosa Hospital. The Baileys brought the
underlying lawsuit against Dr. Sanders alleging damages from the surgical procedure.
Dr. Sanders served as an Assistant Professor at UTHSC from February 1, 2004 to August
31, 2004. The Baileys filed their original petition on July 14, 2005. On August 25, 2006, Dr.
Sanders filed a “Motion for Summary Judgment of Substitution or Dismissal” pursuant to
Section 101.106(f) of the Texas Civil Practice and Remedies Code.
On September 21, 2006, the trial court granted Dr. Sanders’s motion. In its order, the
trial court decreed that the Baileys’ lawsuit was against Dr. Sanders in his official capacity only
and that their lawsuit would be dismissed with prejudice unless they amended their pleadings
dismissing Dr. Sanders and substituting his employer, UTHSC, on or before September 24, 2006.
1
Section 101.106(f) provides:
(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 ANN. § 101.106 (Vernon 2005) (emphasis added).
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On September 25, 2006, the Baileys amended their petition and named UTHSC in the lawsuit.
Thereafter, Dr. Sanders was dismissed and the cause severed. From this severed cause, the
Baileys appealed the trial court’s granting of Dr. Sanders’s section 101.106(f) motion. 2
STANDARD OF REVIEW
Rule of Civil Procedure 166a provides that summary judgment is properly granted only
when the movant establishes that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Because the propriety of a
summary judgment is a question of law, the trial court’s decision is reviewed de novo. Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
The standards for review of a traditional summary judgment are well established: (1) the
movant must show that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue
precluding summary judgment, the court must take evidence favorable to the nonmovant as true;
and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve
any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49
(Tex. 1985).
ANALYSIS
On appeal, the Baileys assert that this court should reverse the trial court’s summary
judgment in favor of Dr. Sanders for the following alternative reasons: (1) Dr. Sanders failed to
meet his burden of proof to show that the case could have been brought against UTHSC; or (2)
as applied, section 101.106(f) deprives the Baileys of their common law cause of action against
2
Because the Baileys amended their petition after the two year statute of limitations, UTHSC filed a motion for
summary judgment based on limitations. In a separate cause number, the Baileys have also appealed the trial court’s
granting of UTHSC’s motion for summary judgment.
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Dr. Sanders, without providing an alternative remedy, in violation of the open courts provision of
the Texas Constitution. TEX. CONST. art. I, § 13.
A. Meaning of “Could Have Been Brought”
Section 101.106(f) provides:
[i]f 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.
TEX. CIV. PRAC. & REM. CODE § 101.106(f) (Vernon 2005). 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.” Id. The Baileys contend that Dr. Sanders failed to establish that their
lawsuit could have been brought against UTHSC because there was no showing that (1) notice
was provided to UTHSC, (2) UTHSC consented to the lawsuit, and (3) the Baileys’ lawsuit
against UTHSC was not barred by limitations.
1. Pre-suit Notice and Limitations
The Baileys assert that Dr. Sanders failed to establish that they “could have brought” the
lawsuit against UTHSC when there was no evidence that the Baileys gave pre-suit notice or that
UTHSC had actual notice as required by section 101.101 of the Texas Civil Practice and
Remedies Code, also known as the Texas Tort Claims Act (“Act”). The notice provision of the
Act provides as follows:
(a) A governmental unit is entitled to receive notice of a claim against it under
this chapter not later than six months after the day that the incident giving rise to
the claim occurred. The notice must reasonably describe:
(1) the damage or injury claimed;
(2) the time and place of the incident; and
(3) the incident.
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(b) A city’s charter and ordinance provisions requiring notice within a charter
period permitted by law are ratified and approved.
(c) The notice requirements provided or ratified and approved by Subsections (a)
and (b) do not apply if the governmental unit has actual notice that death has
occurred, that the claimant has received some injury, or that the claimant's
property has been damaged.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.101 (Vernon 2005).
In Phillips v. Dafonte, 187 S.W.3d 669, 673 (Tex. App.—Houston [14th Dist.] 2006, no
pet.), the court concluded that Section 101.106(f), in effect, provided immunity to the
government employee. See also Tex. Dep’t of Agric. v. Calderon, 221 S.W.3d 918, 922 (Tex.
App.—Corpus Christi 2007, no pet.) (stating “[i]n effect, section 101.106(f) confers immunity on
a sued employee based on her motion to dismiss if her alleged conduct occurred in the scope of
her employment and if the suit could have been brought against the governmental unit under the
Act.”). Section 101.106(f) provides the governmental employee with the option of forcing the
plaintiff to substitute the governmental entity for the employee or risk a complete dismissal. Id.
at 923.
If the Baileys’ contention regarding notice is correct, then a plaintiff’s failure to provide
timely notice would vitiate section 101.106(f)’s purpose. In such circumstance, the plaintiff
could effectively defeat the defendant employee’s immunity from suit under section 101.106(f).
We conclude the result the Baileys advocate would be inconsistent with the purpose of section
101.106(f) and its statutory scheme.
With regards to the statute of limitations, the “could have been brought” requirement
under section 101.106(f) pertains only to Chapter 101 of the Texas Civil Practice and Remedies
Code. The applicable statute of limitations is not found within Chapter 101. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.251 (Vernon 2005). As a result, we disagree that pre-suit notice
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and timely filing of the plaintiff’s lawsuit are necessary in order to establish that the plaintiff’s
lawsuit could have been brought under the Act.
2. Consent
Next, the Baileys assert that Dr. Sanders’ dismissal was improper because there is no
evidence that UTHSC consented to the lawsuit as required under section 101.106(b). Section
101.106(b) provides that “[t]he 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 . . . unless the governmental unit
consents.” TEX. CIV. PRAC. & REM. CODE § 101.106(b) (Vernon 2005). Yet, section 101.106(b)
must be harmonized with section 101.106(f).
In Tex. Dep’t of Agric. v. Calderon, the court examined the tension between section
101.106(b) and (f). Calderon, 221 S.W.3d at 920. The plaintiffs in Calderon initially filed their
lawsuit solely against the government employee. Id. The government employee filed a motion
to dismiss pursuant to section 101.106(f) and the trial court granted the motion. Id. Thereafter,
instead of dismissing the employee, the plaintiffs filed an amended petition naming both the
government employee and the governmental entity as defendants. Id. Over a year later, the
plaintiffs amended their petition to exclude the employee. Thereafter, the governmental entity
filed a plea to the jurisdiction claiming that it had not consented to the suit as required by section
101.106(b). Id. The trial court denied the plea to the jurisdiction. Id.
The appellate court reversed the trial court’s order and dismissed the plaintiffs’ claims
against the governmental entity for lack of jurisdiction. Id. at 924. Examining the interplay
between sections 101.016(f) and 101.106(b), the appellate court stated:
by requiring a plaintiff to substitute the governmental unit as the defendant in
place of the employee in order to maintain the lawsuit, section 101.106(f) has a
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second potential effect—that of removing a governmental unit’s immunity
derived from section 101.106(b).
....
In order for a governmental unit’s immunity under section 101.106(b) to be
removed by section 101.106(f), however, the plaintiff must comply with the
procedural requirements of section 101.106(f)
Id. at 923. The appellate court held that the plaintiff had not complied with the procedural
requirements by not dismissing the employee within 30 days. Consequently, the governmental
unit retained its immunity from suit.
We hold that section 101.106(b) is not implicated in this case. Under section 101.106(f),
one of the prerequisites to the substitution of the governmental entity is that the suit “could have
been brought” against the governmental unit. Here, the pleadings contain a claim that falls
within the ambit of the Tort Claims Act’s waiver of immunity. “[T]he manner in which the
government conveys its consent to suit is through the constitution and . . . state laws.” Mission
Consol. Ind. Sch. Dist. v. Garcia, Nos. 05-0734, 05-0762, 05-0763, 2008 WL 821037, at *6
(Tex. Mar. 28, 2008). The Baileys followed the procedural requirements of section 101.106(f),
and thus the substitution of UTHSC for Dr. Sanders was proper.
We overrule the Baileys’ first issue.
B. Open Court Provision Violation
In their second issue, the Baileys claim that, as applied, section 101.106(f) constitutes a
violation of the open courts provision of the Texas Constitution. TEX. CONST. art. I, § 13 (“All
courts shall be open, and every person for an injury done him, in his lands, goods, person or
reputation, shall have remedy by due course of law.”). Dr. Sanders contends that the Texas
Supreme Court in Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995), rejected the Baileys’
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argument or alternatively, the relation-back doctrine would prevent any unconstitutional
application of section 101.106(f). 3
In reviewing the constitutionality of a statute, there is a legal presumption that it is
constitutional. TEX. GOV’T CODE ANN. § 311.021(1) (Vernon 2005); Walker v. Gutierrez, 111
S.W.3d 56, 66 (Tex. 2003). “Proof of an open courts violation requires two elements: (1) a
cognizable, common-law claim that is statutorily restricted, and (2) the restriction is
unreasonable or arbitrary when balanced against the statute’s purpose and basis.” Yancy v.
United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex. 2007); see also Thomas, 895
S.W.2d at 357.
In Thomas, the Texas Supreme Court held that the predecessor of section 101.106 4 was
constitutional under the open courts provision of the Texas Constitution. The Thomas Court
concluded that the plaintiff failed to establish the first requirement, stating:
[t]he Tort Claims Act broadened, rather than restricted, an injured party’s
remedies. At common law, municipalities performing governmental functions
were completely immune from liability. The Tort Claims Act created a limited
waiver of that immunity. Although a plaintiff who pursues the statutory remedy
against the government may lose his or her common law remedy against the
employee, the plaintiff is not required to follow this course. He or she may still
opt to pursue the full common law remedy against the responsible employee,
foregoing or postponing any attempt to recover from the government.
Id. at 357-58. While we disagree with Dr. Sanders that the supreme court’s reasoning in Thomas
expressly rejects the Baileys’ argument, we are unable to conclude that the Baileys overcame the
3 Generally, the relation-back doctrine allows for the amendment of a petition to relate back to the filing of the
original petition, “even though new facts are alleged in the subsequent pleading, provided the cause of action
remains the same as that alleged in the original pleading.” Chien v. Chien, 759 S.W.2d 484, 493 (Tex. App.—
Austin 1988, no writ). In their appeal against the UTHSC, the Baileys argue that the amendment to their petition
naming the UTHSC as a defendant, while done after the statute of limitations, relates back to their original petition.
4
The predecessor to section 101.106 of the Texas Civil Practices and Remedies Code stated: “‘[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.’” Act of May 17, 1985,
69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at TEX. CIV. PRAC. &
REM. CODE § 101.106).
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legal presumption that section 101.106(f) is constitutional or that section 101.106(f) operated as
an unreasonable restriction.
The statutory scheme under section 101.106, much like in Thomas, may require a
plaintiff to choose between pursuing a lawsuit against the governmental unit or the governmental
employee. The operation of section 101.106(f), however, does not give the plaintiff the option of
continuing with a lawsuit against the governmental employee. The Baileys are restricted from
pursuing their claims against a specific defendant, which in this case was Dr. Sanders, in his
official capacity.
Here, the Baileys misidentify the restriction. The Baileys are not left without a remedy as
a result of the operation of section 101.106(f). Instead, the Baileys are left without a remedy as a
result of section 74.251(a), the two-year statute of limitations. The Baileys, however, have not
made any argument as to why the restriction of the applicable two-year statute of limitations or
the substitution of the governmental unit is unreasonable when balanced against the purpose of
each statute. As a result, we conclude that the Baileys have failed to overcome the constitutional
presumption of section 101.106(f). We overrule the Baileys’ second issue.
CONCLUSION
Having overruled each of the Baileys’ issues, we affirm the judgment of the trial court.
Rebecca Simmons, Justice
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