![](3D"http://www.1stcoa.courts.state.tx.us/opinions/070366f/seal.gif"=20)
Appellant,=20
Safwat Kamel, appeals from a judgment dismissing his =
health-care-liability=20
suit and related claims against appellee, Dr. Tiffany Sotelo. We =
determine=20
whether the trial court erred in granting Sotelo's motion to =
dismss the=20
claims against her under Texas Civil Practice and Remedies Code =
section=20
101.106, specifically, under section 101.106(f). See Tex. =
Civ.=20
Prac. & Rem. Code Ann. =A7 101.106(f) (Vernon 2005). Appellant =
claims=20
that the trial court erred in granting Sotelo's motion to dismiss =
because=20
Sotelo, a medical resident, was not an employee for the purposes =
of=20
section 101.106. We=20
affirm. Kamel ultimately dismissed Wang =
and LBJ=20
Hospital, leaving Sotelo and UTHSCH as defendants. Sotelo filed a =
motion=20
to dismiss pursuant to sections 101.106(a) and 101.106(f) of the =
Texas=20
Civil Practice and Remedies Code, which the trial court granted. =
Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 101.106(a), (f). Kamel's motion for new trial =
was denied=20
and this appeal follows. Section=20
101.106 of the Texas Civil Practice and Remedies Code is part of =
the Texas=20
Tort Claims Act and is entitled "Election of Remedies." =
See Tex.=20
Civ. Prac. & Rem. Code Ann. =A7 101.106 (Vernon 2005). The =
purpose of=20
section 101.106 is to force a plaintiff to choose whether he will =
seek to=20
impose tort liability on a governmental unit or on governmental =
employees,=20
individually. Williams v. Nealon, 199 S.W.3d 462, 465 =
(Tex.=20
App.--Houston [1st Dist.] 2006, pet. filed); Waxahachie=20
Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex.=20
App.--Waco 2005, pet. denied). Once such an election is made, it =
is=20
irrevocable. Johnson, 181 S.W.3d at 785. Section=20
101.106 provides in relevant part: (a) The=20
filing of a suit under this chapter against a governmental unit=20
constitutes an irrevocable election by the plaintiff and =
immediately and=20
forever bars any suit or recovery by the plaintiff against any =
individual=20
employee of the governmental unit regarding the same subject=20
matter. (b) The=20
filing of a suit against any employee of a governmental unit =
constitutes=20
an irrevocable election by the plaintiff and immediately and =
forever bars=20
any suit or recovery by the plaintiff against the governmental =
unit=20
regarding the same subject matter unless the governmental unit=20
consents. . =
. .=20
. (e) If a=20
suit is filed under this chapter against both a governmental unit =
and any=20
of its employees, the employees shall immediately be dismissed on =
the=20
filing of a motion by the governmental unit. (f) If a=20
suit is filed against an employee of a governmental unit based on =
conduct=20
within the general scope of that employee's employment and if it =
could=20
have been brought under this chapter against the governmental =
unit, the=20
suit is considered to be against the employee in the employee's =
official=20
capacity only. On the employee's motion, the suit against the =
employee=20
shall be dismissed unless the plaintiff files amended pleadings =
dismissing=20
the employee and naming the governmental unit as defendant on or =
before=20
the 30th day after the date the motion is filed. Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 101.106(a), (b), (e), (f) (Vernon=20
2005). Sotelo=20
moved for a dismissal under subsections (a) and (f) of section =
101.106 of=20
the Texas Tort Claims Act. Because we find the application of =
section=20
101.106(f) to be dispositive, we address it solely. To be=20
entitled to a dismissal under section 101.106(f), a defendant must =
show=20
that the plaintiff's suit (1) was based on conduct within the =
general=20
scope of the defendant's employment with a governmental unit and =
(2) could=20
have been brought under the Texas Tort Claims Act against that=20
governmental unit. Williams, 199 S.W.3d at 466 =
(citing=20
Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex. App.--Houston =
[14th=20
Dist.] 2006, no pet.)). Here, Kamel seeks to pursue Sotelo =
individually as=20
well as UTHSCH The first=20
component of the test actually encompasses two inquiries: whether =
the=20
individual defendant was an employee of a governmental unit and =
whether=20
she was acting in the scope of that employment at the relevant =
time.=20
See Poland v. Willerson, No. 01-07-00198-CV, 2008 WL =
660334, at=20
*4 (Tex. App.--Houston [1st Dist.] March 13, 2008, pet. denied);=20
Turner v. Zellers, 232 S.W.3d 414, 417 (Tex. App.--Dallas =
2007,=20
no pet.). Subsection (f) provides "a procedure for dismissing =
government=20
employees and substituting the governmental entity in cases in =
which only=20
employees were named as defendants," allowing "the government =
employee=20
whose conduct is alleged to have been within the scope of =
employment to=20
force the plaintiff to amend the suit and name the governmental =
entity as=20
the sole defendant." Tejada v. Rowe, 207 S.W.3d 920, 924 =
(Tex.=20
App.--Beaumont 2006, pet. filed). The statute strongly favors =
dismissal of=20
governmental employees. Johnson, 181 S.W.3d at =
785.IV.=20
Discussion Kamel=20
challenges the trial court's granting of Sotelo's dismissal motion =
under=20
section 101.106 of the Texas Tort Claims Act. Section=20
101.001(2) of the Act defines "employee" as follows: "Employee"=20
means a person, including an officer or agent, who is in the paid =
service=20
of a governmental unit by competent authority, but does not =
include an=20
independent contractor, an agent or employee of an independent =
contractor,=20
or a person who performs tasks the details of which the =
governmental unit=20
does not have the legal right to control. Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 101.001(2). Thus, the=20
statutory definition requires control and paid employment to =
invoke the=20
Tort Claims Act's waiver of immunity. See Adkins v. =
Furey, 2=20
S.W.3d 346, 348 (Tex. App.--San Antonio 1999, no pet.). It is=20
undisputed that UTHSCH For her=20
part, Sotelo asserts that she was a Q: What is=20
University of Texas Medical - I'm sorry. University of Texas =
System=20
Medical Foundation? What is that?
. =
. .=20
. A: I am not=20
the person to ask that question. I don't work for the people that =
make the=20
names. I don't know.
Q: But=20
didn't you sign a contract with the University of Texas System =
Medical=20
Foundation?
A: As far=20
as I know, I signed a contract with the University of Texas, and =
the=20
System Foundation. I'm not sure what that is. Part of the =
University of=20
Texas. . =
. . .=20
Q: . . .=20
What about your paycheck? Do you ever receive a pay check from the =
University of Texas Health Science Center at Houston?
A: I'm not=20
sure what it says on my paychecks. They just go straight to the=20
bank. . =
. .=20
.
Q: Okay.=20
Have you ever received a paycheck that said University of Texas =
Health=20
Science Center on it?
A: Like I=20
said before, I'm not sure where my paychecks come from. I have =
direct=20
deposit. I don't look at them. I don't know, but I know they come =
from the=20
University of Texas is my understanding. In addition=20
to Sotelo's testimony that she was paid by the University of Texas =
during=20
her residency, Sotelo relies on Knizel v. Bozarth, No.=20
04-06-00242-CV, 2007 WL 1481428, at *3 (Tex. App.--San Antonio May =
23,=20
2007, no pet.), for the proposition that a medical resident is an =
employee=20
of a governmental unit for the purposes of the Act. In that case, =
Knizel=20
underwent knee replacement surgery at University Hospital =
performed by=20
Peter Holmes, M.D., and Gordon Bozarth, M.D. Id. at *1. =
At the=20
time, Bozarth was a resident physician engaged in a cooperative=20
educational program with the University of Texas Health Science =
Center San=20
Antonio ("UTHSCSA"); however, University Hospital, part of the =
University=20
Health System, paid Bozarth's salary. Id. After =
experiencing=20
complications from the procedure, Knizel brought suit against =
Holmes,=20
Bozarth, and the University Health System. Id. Knizel =
argued that=20
because Bozarth was paid by University Hospital, not UTHSCSA, the =
Election=20
of Remedies provision contained in section 101.106(f) was =
inapplicable=20
because Bozarth did not fit the definition of "employee" as set =
forth in=20
the Act. Id. at *1-2. The trial court, however, refused =
to apply=20
the Act's definition and instead applied the definition of =
"employee"=20
contained in the Texas Health and Safety Code (the "Code"), which =
provides=20
that: A =
medical=20
and dental unit, supported medical or dental school, or =
coordinating=20
entity, is a state agency, and a director, trustee, officer, =
intern,=20
resident, fellow, faculty member, or other associated health care=20
professional or employee of a medical or dental unit, supported =
medical or=20
dental school, or coordinating entity is an employee of a state =
agency for=20
purposes of Chapter 104, Civil Practice and Remedies Code, and for =
purposes of determining the liability, if any, of the person for =
the=20
person's acts or omissions while engaged in the coordinated or =
cooperative=20
activities of the unit, school, or entity. The San=20
Antonio Court of Appeals affirmed the trial court's judgment, =
holding that=20
"despite the definition of 'employee' contained within the Act, =
Bozarth=20
is, pursuant to the Code, a UTHSCSA employee for purposes of =
liability."=20
Id. The Court went on to agree with Bozarth that the Act =
and the=20
Code can be read together so that effect can be given to both and =
that the=20
two provisions do not irreconcilably conflict. Id. at =
*3. Similarly,=20
in Adkins v. Furey, also relied upon by appellant, Furey, =
an=20
operating room technician, sued Dr. Adkins, a resident at the =
University=20
of Texas Health Science Center, for shooting a staple into her arm =
while=20
Furey was assisting Adkins with a cesarean delivery. 2 S.W.3d 346, =
347=20
(Tex. 1999). The issue arose as to whether Adkins, in performing =
the=20
cesarean procedure, did so as an employee of UTHSC or as an =
employee of=20
the Bexar County Hospital District. Id. The Texas Supreme =
Court=20
held that Adkins did not conclusively establish that he was in the =
University's "paid service" in part because the District paid =
Adkins an=20
annual stipend and provided Adkins's benefits. Id. at =
348-49.=20
Again, there is no similar evidence in the instant case that =
Sotelo=20
received benefits from any source other than the University of =
Texas at=20
the time of Kamel's surgery. Based on=20
the foregoing reasons, we hold that the trial court did not err in =
granting Sotelo's motions to dismiss the claims against her. =
Accordingly,=20
appellant's issues are overruled. We affirm=20
the judgment of the trial court.
Davie L.=20
Wilson Panel=20
consists of Justices Taft, Bland, and Wilson. 1. The trial=20
court subsequently severed the claims against Dr. Sotelo.=20
3. 4. 5. 6. The=20
legislature finds that it will improve the quality of the delivery =
of=20
medical care to the citizens of this state and, therefore, that it =
will be=20
in the public interest of this state for the resident physicians =
being=20
educated, trained, developed, and prepared, for a career in =
medicine by=20
the schools of medicine in the University of Texas System . . . to =
be=20
compensated by those schools while the resident physicians are =
undergoing=20
education, training, development, and preparation. Tex. Educ.=20
Code Ann. =A7 58.001 (Vernon 2006). 7. 8. The Honorable Davie L. Wilson, retired =
Justice,=20
First Court of Appeals, participating by assignment.=20