Opinion
No. 01-09-01061-CV
Opinion issued June 24, 2010.
On Appeal from the 412th Judicial District Court Brazoria County, Texas, Trial Court Case No. 54075.
Panel consists of Justices JENNINGS, ALCALA, and MASSENGALE.
OPINION
Appellants, Nathaniel Quarterman, Steve Massie, David Turrubiarte, Julia Humphrey, and Juan Jackson (the "Employees") bring this interlocutory appeal of the trial court's order denying the motion to dismiss filed by the Texas Department of Criminal Justice (TDCJ). See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(5) (Vernon 2008); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App.-Houston [14th] 2008, pet. denied) (appellate court has jurisdiction to consider interlocutory appeal from denial of motion to dismiss filed under Section 101.106(e) of Texas Civil Practice and Remedies Code). In their sole issue, the Employees contend the trial court erred by denying the motion because Section 101.106(e) of the Texas Civil Practice and Remedies Code requires dismissal of this lawsuit filed against TDCJ employees in their individual capacities by appellee, Robert Hampton, an inmate in the TDCJ. We conclude the trial court properly denied TDCJ's motion to dismiss under Section 101.106(e) because no suit was filed against TDCJ, the governmental unit, as required for dismissal under that subsection. We affirm.
Background
Hampton sued the Employees in both their individual and official capacities, alleging theft under the Texas Theft Liability Act, common law conversion, and federal and state constitutional claims for unlawful taking and denial of due process. Hampton did not name TDCJ as a defendant in the suit. Hampton asserted that, after he was found guilty of the prison disciplinary offense of "trafficking and trading," the Employees unlawfully removed $710 from his inmate trust fund account. Hampton contended that forfeiture of funds was not a permissible disciplinary action for his offense, and after exhausting the institutional grievance procedure, he filed suit. Except for Juan Jackson, all of the Employees filed an answer and jury demand. Although it was not a party to the suit, TDCJ filed a motion to dismiss under Section 101.106(e) of the Texas Civil Practice and Remedies Code.
Jackson did not file an answer, but the Employees contend in their appellate brief that he was never served with the petition.
Dismissal Under Section 101.106
In their sole issue, the Employees contend that Section 101.106(e) requires dismissal of the suit against them in their individual capacities because they were sued in their official capacities and a suit against employees in their official capacity is essentially a suit against a governmental unit.
A. Applicable Law
Section 101.106 of the Texas Civil Practice and Remedies Code provides for dismissal or prohibition of certain lawsuits or recovery when a lawsuit is filed against government employees. TEX. CIV. PRAC. REM. CODE ANN. § 101.106 (Vernon 2005). In relevant part, Section 101.106 states,
. . . .
(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.
. . . .
(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.
Id.
The Civil Practice and Remedies Code defines the terms used in Section 101.106. "`Employee' means a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority. . . ." TEX. CIV. PRAC. REM. CODE ANN. § 101.001(2) (Vernon 2005). "`Governmental unit' means: (A) this state and all the several agencies of government that collectively constitute the government of this state . . .; (B) a political subdivision of this state, including any city, county, school district . . .; (C) an emergency service organization; and (D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution." Id. § 101.001(3).
The Texas Supreme Court recently interpreted Section 101.106 stating,
Under the Tort Claims Act's election scheme, recovery against an individual employee is barred and may be sought against the governmental unit only in three instances: (1) when suit is filed against the governmental unit only, [TEX. CIV. PRAC. REM. CODE ANN.] § 101.106(a); (2) when suit is filed against both the governmental unit and its employee, id. § 101.106(e); or (3) when suit is filed against an employee whose conduct was within the scope of his or her employment and the suit could have been brought against the governmental unit, id. § 101.106(f).
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008) (emphasis added).
B. Analysis
The Employees contend that Section 101.106(e) requires dismissal of the claims filed against them in their individual capacities. Citing City of Hempstead v. Kmiec, the Employees contend that a claim against a person in his official capacity is no different than a lawsuit against the governmental entity that employed the person. See 902 S.W.2d 118, 122 (Tex. App.-Houston [1st] 1995, no writ). Based on this authority, the Employees conclude that the suit against the employees in their official capacity was the same as a suit against the governmental unit (TDCJ) for the purposes of Section 101.106(e). We disagree with the Employees for three reasons.
First, under the plain meaning of the statute, a governmental "employee" is different from a "governmental unit." When interpreting statutes, courts should ascertain and give effect to the Legislature's intent as expressed by the language of the statute. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). "If the Legislature provides definitions for words it uses in statutes, then we use those definitions in our task." Id. (citing TEX. GOV'T CODE ANN. § 311.011(b) (Vernon 2005)). We consider the statute as a whole and not its provisions in isolation. Cont'l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002).
The definition of "governmental unit" does not include employees sued in their official capacity; rather, it refers to certain governmental entities. See TEX. CIV. PRAC. REM. CODE ANN. § 101.001 (3). The definition of "employee" applicable to the section broadly includes all people who are employees, without separating whether they are sued in their individual or official capacities. See id. § 101.001(2). Subsection (e)'s references to suits filed against both an "employee" and a "governmental unit," therefore, requires dismissal of the suit against the employee, the person, when a suit is filed against the governmental unit, an entity. See id. §§ 101.001(2)-(3), 101.106(e).
Second, subsection (f) of Section 101.106 provides the appropriate procedural vehicle for the Employees to seek their own dismissal on the grounds that the conduct was within the scope of employment. TEX. CIV. PRAC. REM. CODE ANN. § 101.106(f) (upon employee's motion, suit against employee in official capacity shall be dismissed if plaintiff does not amend pleadings to name governmental entity in place of employee, provided that suit is based on conduct within general scope of employee's employment and suit could have been brought against governmental unit); see also Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 657. After evaluating the text of the statute, including the applicable definitions, the Legislature clearly provided an avenue to seek the kind of relief sought by the Employees, and that relief is under subsection (f), not subsection (e).
Third, the case law cited by the Employees does not support their argument that employees are entitled to dismissal upon the governmental entity employer's filing of a motion to dismiss. City of Hempstead discussed the implications of governmental immunity to an employee sued in an official capacity and held that governmental immunity extended to an employee in his official capacity just as it would to the governmental unit. See 902 S.W.2d at 122 ("If the City was not liable because of governmental immunity, neither was the Chief when sued in his official capacity."). While we recognize that a suit against the employees in their official capacity is the same as a suit against the governmental unit for purposes of immunity, that authority cannot be used to expand the express definition of "governmental unit" as it applies to Section 101.106(e). See Hernandez, 289 S.W.3d at 318. The other cited cases involved suits that actually named both the governmental entity and its employees as defendants. See, e.g., Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 659; Singleton, 267 S.W.3d at 554-55; Brown v. Xie, 260 S.W.3d 118, 123 (Tex. App.-Houston [1st] 2008, no pet.). None of the cases support the proposition that suing a governmental employee in his official capacity automatically names the governmental entity employer as a party to the suit.
Because the suit in the present case was not brought against both a governmental unit and its employees, the court properly denied the Section 101.106(e) motion to dismiss filed by the governmental unit. See TEX. CIV. PRAC. REM. CODE ANN. § 101.106(e). We overrule the Employees' sole issue on appeal.
CONCLUSION
We affirm the trial court's denial of the motion to dismiss.