Terry A. Leonard, P.A. and April Dawn Hain, M.D. v. Andre Glenn ( 2011 )

MEMORANDUM OPINION
No. 04-08-00200-CV
TERRY A. LEONARD, P.A. and April Dawn Hain, M.D.,
Appellants
v.
Andre GLENN,
Appellee
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CI-11855
Honorable Barbara Hanson Nellermoe, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: August 17, 2011
REVERSED & RENDERED
We issued our first opinion in this case on May 20, 2009. While this case was on appeal
from this court, the supreme court decided Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011),
holding that for purposes of section 101.106(f) of the Civil Practice & Remedies Code, “a tort
action is brought ‘under’ the Texas Tort Claims Act, even if the government has not waived its
immunity for such actions.” Leonard v. Glenn, 332 S.W.3d 403, 403 (Tex. 2011) (per curiam)
(citing Franka, 332 S.W.3d at 370–71). In light of Franka, this case was remanded to us for
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further proceedings. Id. The underlying background and procedural facts of this appeal are
outlined in our May 20, 2009 opinion. See Terry A. Leonard, P.A. v. Glenn, 293 S.W.3d 669
(Tex. App.—San Antonio 2009), rev’d sub nom. Leonard v. Glenn, 332 S.W.3d 403 (Tex. 2011).
Reconsidering this case in light of Franka, we reverse the trial court’s order and render judgment
dismissing Glenn’s claims.
Under section 101.106(f) of the Civil Practice & Remedies Code, a trial court shall
dismiss a suit against an employee of a governmental unit if the suit is “considered to be against
the employee in the employee’s official capacity only” and the plaintiff fails to file amended
pleadings naming the governmental unit as defendant within thirty days of a motion to dismiss.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2005). A suit is “considered to be
against the employee in the employee’s official capacity only” if the suit (1) “is filed against an
employee of a governmental unit based on conduct within the general scope of that employee’s
employment,” and (2) “could have been brought under [the Texas Tort Claims Act] against the
governmental unit.” Id.; Franka, 332 S.W.3d at 369.
We hold that the trial court erred in failing to dismiss Glenn’s suit against Leonard and
Dr. Hain. “There is no question that both Dr. Hain and Leonard were acting within the scope of
their employment.” Glenn, 293 S.W.3d at 681. Under Franka, Glenn’s negligence claims
against Leonard and Dr. Hain could have been brought under the Texas Tort Claims Act
regardless of whether the Act waives immunity. See Franka, 332 S.W.3d at 369. Thus, Glenn’s
claims are against Leonard and Dr. Hain in their official capacities only. See § 101.106(f);
Franka, 332 S.W.3d at 382–83. Because Glenn failed to amend his pleadings to name Bexar
County Hospital District d/b/a University Health Systems (UHS) as a defendant within thirty
days of Leonard’s and Dr. Hain’s motions to dismiss, the trial court should have granted the
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motions. See § 101.106(f); Franka, 332 S.W.3d at 370. We reverse the trial court’s orders and
render judgment dismissing Glenn’s claims.
Rebecca Simmons, Justice
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