Case Number: 01-17-00018-CV

Judge: Jennifer Caughey

Court: Texas Court of Appeals, First District on appeal from the 80th District Court, Harris County

Plaintiff's Attorney: Shannon Kathleen Dunn, Stephanie De Sola and Beth Watkins

Defendant's Attorney: Jeffrey B. McClure for the Baylor College of Medicine

Elizabeth Dale Burrus and Matthew Halpin for Shafeeq Sheikh, M.D.

Description: Appellant Laura Perilla-Vargas sued Baylor College of Medicine and Baylor resident Shafeeq Sheikh, M.D. alleging that she was sexually assaulted by Sheikh while she was a patient at Ben Taub General Hospital. Perilla-Vargas and her
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counsel elected to file this lawsuit against both Sheikh (the individual employee) and the Baylor (the government employer).
Baylor filed a motion to dismiss Perilla-Vargas’s claims against Sheikh (the employee) pursuant to the election-of-remedies provision of the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE § 101.106(e). That provision requires a plaintiff to elect at the outset whether to sue the individual employee or the governmental unit. Critical here, it states that when a lawsuit 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.” Id. Following the statute’s dictate, the trial court granted the motion.
On appeal, Perilla-Vargas contends that the trial court erred in granting Baylor’s motion to dismiss Sheikh. But under section 101.106(e)’s plain terms, Perilla-Vargas’s election to sue both the governmental unit and the individual employee compels the dismissal of Sheikh. We thus affirm.1
Background
Perilla-Vargas brought a suit for damages against Baylor, Sheikh, and Ben Taub. She expressly elected, from the outset, to sue both the individual employee
1 Baylor subsequently filed a plea to the jurisdiction, which the trial court granted. Perilla-Vargas expressly waives any complaint regarding the trial court’s dismissal of Baylor. Thus, that decision is not before us.
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and the governmental employer. In her original petition, Perilla-Vargas alleged that Sheikh sexually assaulted her while she was a patient at Ben Taub. She alleged that all three defendants were negligent in failing to protect her from this assault and that Baylor and Ben Taub were liable for Sheikh’s actions under the theory of respondeat superior.
Baylor filed a motion to dismiss Sheikh pursuant to Texas Civil Practice and Remedies Code section 101.106(e). It submitted evidence establishing that Sheikh was an employee of Baylor. The trial court granted the motion.
Subsequently, Baylor and Ben Taub each filed pleas to the jurisdiction, which the trial court granted.
Perilla-Vargas appealed.2
Discussion
In her first and second issues, Perilla-Vargas argues that the trial court erred in granting Baylor’s motion to dismiss Sheikh because his actions were not undertaken in the course and scope of his employment. But her argument rests on the incorrect assumption that, to obtain Sheikh’s dismissal, the State must show that he was acting in the course and scope of his employment. Because the plain language of the statutory provision at issue here requires no such showing, we affirm. The
2 Perilla-Vargas’s third issue seeks dismissal of Ben Taub from this appeal. Because this Court has already granted her separate motion to dismiss Ben Taub, we need not further address this issue.
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result in this case is compelled by the election to sue both the governmental unit and the individual employee.
This case turns on the election-of-remedies provision in the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE § 101.106. That provision states:
(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.
. . . .
(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.
Id. § 101.106 (emphasis added).3 The Supreme Court of Texas has held that this election-of-remedies provision “force[s] 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.” Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017) (quoting Mission
3 Subsection (f) states: “If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.”
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Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008)). “By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs.” Garcia, 253 S.W.3d at 657.
As set forth above, subsection 101.106(e)—the section at issue here—applies when a lawsuit is filed “against both a governmental unit and any of its employees,” and it requires dismissal of claims against the employees on the governmental unit’s motion. Id. The Act defines “employee” as: “a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.” See TEX. CIV. PRAC. & REM. CODE § 101.001(2).
Critical here, neither the language of subsection (e) nor the statute’s definition of employee requires any showing that the person was acting within the scope of his employment. We interpret the plain language of statutes and do not read terms into the statute that do not exist in the text. See, e.g., Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 563 (Tex. 2016) (“In construing [a] statute, we rely ‘on the plain meaning of the text unless a different meaning is supplied by statutory definition, is
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apparent from the context, or the plain meaning would lead to an absurd or nonsensical result.’”).
Moreover, “when the legislature uses certain language in one part of [a] statute and different language in another, the court assumes different meanings were intended.” Ineos USA, 505 S.W.3d at 564 (quoting DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995)). That is precisely what we see here. Unlike subsection (e) of the statute, subsection (f)—which does not control in this case—expressly requires a showing that the employee was acting in the scope of employment. Specifically, 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.” Id. § 101.106(f) (authorizing dismissal of employee on employee’s motion, “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”). The absence of similar language in subsection (e) is significant.
Case law from the Texas Supreme Court and our Court have recognized this distinction. Indeed, the Texas Supreme Court has explained that although an employee seeking dismissal under subsection (f) must prove that his actions were within the general scope of his employment, subsection (e) imposes no such
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requirement on a governmental unit seeking dismissal of an employee. Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 357–58 (Tex. 2013).
Likewise, this Court recently issued an opinion that squarely rejected an argument similar to the one raised by Vargas here. In The University of Texas M.D. Anderson Cancer Center v. Stewart, Stewart sued M.D. Anderson and six doctors it employed for gross negligence in the treatment of his wife. No. 01-16-00865-CV, 2017 WL 2590230, at *1 (Tex. App.—Houston [1st Dist.] June 15, 2017, no pet.) (mem. op., not designated for publication). The trial court denied M.D. Anderson’s motion to dismiss the six doctors pursuant to section 101.106(e) after Stewart argued that it was improper to dismiss the doctors because they were not acting in the course and scope of their employment. Id. On appeal, this Court concluded that once M.D. Anderson demonstrated that the doctors were its employees, dismissal was required under section 101.106(e) because there was no course-and-scope requirement in subsection (e). Id. at *3.
For the same reason, we reject Perilla-Vargas’s argument here. Put simply, subsection (e) does not require a showing of course and scope of employment. Once Perilla-Vargas elected to sue both the governmental unit and the individual employee, Sheikh’s dismissal was required under section 101.106(e). Perilla-Vargas does not contend that Sheikh is not Baylor’s employee; she instead seeks to draw a distinction between a “W-2 Employee” (which she concedes Sheikh is) and a
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“TTCA Employee” (which she argues Sheikh is not because he was not acting in the course and scope of his employment).
Finally, Perilla-Vargas also complains about Baylor’s contention in its plea to the jurisdiction that Sheikh’s actions were outside the course and scope of his employment. Perilla-Vargas asserts that this contention was contrary to Baylor’s section 101.106(e) motion. But this argument questions whether the trial court erred in granting Baylor’s plea to the jurisdiction—not whether it erred in granting the section 101.106(e) motion in the first instance. And Perilla-Vargas expressly waived on appeal “all possible complaints” about the dismissal of Baylor.4 Accordingly, the merits of Baylor’s plea are not before us. The only issue Perilla-Vargas raises on appeal is whether the trial court erred in granting Baylor’s section 101.106(e) motion.
For the foregoing reasons, we conclude that the trial court did not err by granting Baylor’s motion to dismiss Sheikh pursuant to section 101.106(e).
We overrule Perilla-Vargas’s first and second issues.
4 Perilla-Vargas concedes that she (through her counsel) failed to timely file a Chapter 74 expert report, and therefore Baylor would be entitled to dismissal of her claims against it.

Outcome: We affirm the trial court’s judgment.

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