
    The UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Bella Patel, M.D., F.C.C.P., Richard W. Smalling, M.D. PHD, Rachshunda Majid, M.D., and Francisco Fuentes, M.D., Appellants v. Tomas G. RIOS, M.D., Appellee
    NO. 01-15-01071-CV
    Court of Appeals of Texas, Houston (1st Dist.).
    Opinion issued September 1, 2016
    
      Ken Paxton, Attorney General of Texas, Douglas D. Geyser, Assistant Solicitor General, Austin, TX, for Appellants
    Jeremy D. Saenz, WAGNER SAENZ DORITY LLP, Houston, TX, for Appellee
    Panel consists of Chief Justice Radack and Justices Keyes and Higley.
   OPINION

Laura Carter Higley, Justice

Appellee, Tomas G. Rios, M.D., filed suit against appellants, The University of Texas Health Science Center at Houston (“UT Health”), Bella Patel, M.D., F.C.C.P., Richard W. Smalling, M.D. PhD, Ra-chshunda Majid, M.D., and Francisco Fuentes, M.D. Appellant claimed injury from allegedly defamatory statements, which he asserted resulted in, among other things, the withdrawal of an offer to work a second year of residency with UT Health. The individual doctors brought a motion to dismiss. The trial court denied their motion to dismiss. They now bring this interlocutory appeal. In one issue, the individual doctors argue that the trial court was compelled to dismiss them from the suit.

We affirm.

Background

On April 24, 2015, Rios brought suit against UT Health and the individual doctors. Rios alleged in his original petition that he had accepted a one-year appointment with UT Health in 2013. During that year, he wrote a complaint to the UT Health “compliance office reporting issues relating to patient endangerment, quality improvement, and other issues that were present during his overnight calls.” He alleged that, following this complaint, UT Health and the individual doctors took steps to discredit him, to publish false statements about him, and to interfere with his current and future employment. He asserted a claim of breach of contract against UT Health. He asserted claims of tortious interference with existing contract, tortious interference with future relations, and defamation against UT Health and the individual doctors.

After answering, UT Health filed a plea to the jurisdiction, and the individual doctors filed motions to dismiss. In their motion to dismiss, the individual doctors asserted that Rios had received a one-year appointment “to the Cardiovascular Disease Training Program.” “[The] appointment was made to The University of Texas System Medical Foundation ... which was [Riosj’s employer.” The doctors asserted that, “[pursuant to its regular practice, the Program issued a reappointment letter to [Rios] for the following appointment year.” The reappointment was rescinded, however, due to a “lack of minimum competencies essential for continuation in the program.”

In its plea to the jurisdiction, UT Health asserted that it was part of the University of Texas System, which is a governmental entity. Based on this, UT Health asserted that it had governmental immunity and that, accordingly, Rios’s claims against it were barred. In their motion to dismiss, the individual doctors asserted that, because Rios had asserted tort claims against UT Health and them, the trial court was statutorily required by the Texas Tort Claims Act to dismiss the individual doctors from the lawsuit and proceed against UT Health only. UT Health and the individual doctors attached evidence of Rios’s employment arrangement but did not attach any evidence of the individual doctors’ employment arrangements.

Rios filed an amended petition. In the amended petition, he asserted his claims of tortious interference with existing contract, tortious interference with future relations, and defamation against the individual doctors only. His only claim against UT Health in the amended petition was for breach of contract. Rios also added a Section 1983 claim against the individual doctors in his amended petition.

UT Health and the individual doctors amended their plea to the jurisdiction and motions to dismiss. Their arguments in the motions remained the same, but their motions referred to Rios’s amended petition instead of his original petition.

Rios filed a response to the plea to the jurisdiction and motions to dismiss. In it, Rios pointed out that there was no proof that the individual doctors were employees of UT Health. Accordingly, Rios argued, the individual doctors failed to establish that they were entitled to be dismissed from the suit. Rios raised this same argument at the hearing on the motions. The trial court dismissed Rios’s breach of contract claim against UT Health but denied the remainder of the motions.

Texas Tort Claims Act

In their sole issue, the individual doctors argue the trial court was compelled to dismiss them from the suit.

A. Standard of Review

A trial court’s order on a motion to dismiss is commonly reviewed under an abuse of discretion standard. Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)). “However, the proper standard of review is not necessarily determined by the caption of the motion to which the order relates, rather it is determined by the substance of the issue to be reviewed.” Id. (citing Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex. App.-Houston [14th Dist.] 2008, pet. denied)).

Here, the motions to dismiss raised the issue of immunity. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating that Section 101.106 of Texas Tort Claims Act confers immunity in some instances to employees of governmental units); Fink, 477 S.W.3d at 465 (same). If immunity applies, the trial court lacks subject-matter jurisdiction over the case. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells, 327 S.W.3d 233, 240 (Tex. App.-San Antonio 2010, no pet.). Subject-matter jurisdiction is a question of law, which we review de novo. Miranda, 133 S.W.3d at 226. Likewise, matters of statutory construction are reviewed under a de novo standard. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003).

B. Analysis

Section 101.106 of the Texas Tort Claims act provides, in pertinent part, “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.” Tex Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2011). The Supreme Court of Texas has held that, in a plea to the jurisdiction for a party claiming governmental immunity, the party filing the plea bears the initial burden of establishing that it is a governmental entity. Lubbock Cty. Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 305 (Tex. 2014). We have held that employees of a governmental entity seeking the application of immunity under the Texas Tort Claims Act bear the initial burden of proving they are employees of a governmental unit. See Fink, 477 S.W.3d at 465-66 (applying subsection 101.106(f)); see also Olivares v. Brown & Gay Eng’g, Inc., 401 S.W.3d 363, 376-77 (Tex. App.-Houston [14th Dist.] 2013), aff'd, 461 S.W.3d 117 (Tex. 2015) (holding party claiming to be employee bears burden of proving “it is- in the paid service of a governmental unit and that it is not an independent contractor, agent or employee of an independent contractor, or someone who performs tasks the details of which the governmental unit does not have a legal right to control”).

Subsection 101.106(e) applies when suit is filed “against both a governmental unit and any of its employees.” Civ, Prao. & Rem. § 101.106(e). Because the individual doctors were seeking to be dismissed based on their status as employees of UT Health, it was necessary for the individual doctors to establish that UT Health was a governmental entity and that the individual doctors were employees of UT Health. See Lubbock Cty., 442 S.W.3d at 305; Fink, 477 S.W.3d at 465-66. 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.

Tex. Civ. Prac. & Rem. Code Ann. § 101.001(2) (Vernon Supp. 2015).

The individual doctors presented no proof in their motions to dismiss that they were employees of UT Health as defined by the Act. Accordingly, they did not carry their burden of establishing a right to dismissal. See Fink, 477 S.W.3d at 465-66.

The individual doctors never addressed Rios’s argument that they failed to establish they were employees of a governmental entity until their reply brief on appeal. In it, the individual doctors suggest that UT Health’s filing the motion to dismiss was itself proof that they were governmental employees. The individual doctors reason that “the government would not take on the additional risk for the benefit of a non-employee.” Their only support for this assertion is Texas Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350 (Tex. 2013). Their reliance on Ngakoue is misplaced.

In Ngakoue, the Texas Supreme Court distinguished between subsection (f) of section 101.106—which requires proof that the employee’s actions were within the general scope of his employment—and subsection (e) of the same statute—which does not have this requirement. Id. at 357-58. The court reasoned, “By filing such a motion [based on subsection (e) ], the governmental unit effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.” Id. at 358. The court was explaining, then, the reason the “general scope of employment” language was absent from subsection (e). See id. Regardless of what other language is absent, subsection (e) explicitly makes dismissal contingent on a defendant being an employee of a governmental unit. Civ. Prac. & Rem. § 101.106(e). The individual doctors bore the burden of proof on this to obtain dismissal, which they did not do. See Fink, 477 S.W.3d at 465-66.

The dissent strives to establish that the record firmly shows that the individual doctors were employees (as defined by the Texas Tort Claims Act) of UT Health. The dissent relies on two things as proof that the individual doctors are employees of UT Health: the allegations in the motion to dismiss and one exhibit attached to the motion.

The exhibit upon which the dissent relies is a letter designated as a “notice of non-reappointment and rescission of appointment.” The letter was signed by Fuentes, one of the individual doctors. The letterhead contains UT Health’s logo. Under the signature, Fuentes identifies himself as “Program Director.” This does nothing to establish that Fuentes was an employee of UT Health as defined by the Texas Tort Claims Act, to say nothing of the remaining individual doctors. See Civ. Prac. & Rem. § 101.001(2) (defining employee as person “in the paid service” of the governmental entity that is not independent contractor, agent or employee of independent contractor, or person who performs tasks which governmental entity does not have right to control); Olivares, 401 S.W.3d at 376-77 (same).

The remainder of the dissent’s proof rests on UT Health’s assertion in its motion to dismiss that all of the individual doctors were employees of UT Health. It is a well-established principal of law, however, that pleadings are not proof. See, e.g., Marshall v. Telecomms. Specialists, Inc., 806 S.W.2d 904, 908 (Tex. App.-Houston [1st Dist.] 1991, no writ) (“Pleadings are not proof.”).

Even the plea-to-the-jurisdiction law upon which the dissent relies establishes that the dissent has flipped the proper application of the law. In a plea to the jurisdiction, the jurisdictional facts alleged in the plaintiffs pleadings are presumed to be true. See Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502-03 (Tex. 2010) (“It has long been the rule that a plaintiffs good faith allegations are used to determine the trial court’s jurisdiction.”). A defendant who challenges the pleadings must come forth with proof that the jurisdictional allegations are wrong. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (holding only after defendant “asserts and supports with evidence” jurisdictional facts does burden shift to plaintiff to present proof of jurisdiction). There is no law to support the dissent’s assertion that UT Health’s allegations in its motion somehow constitutes proof to affirmatively negate jurisdiction. See Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 793 (Tex. App.-Houston [1st Dist.] 2012, no pet.) (rejecting raising jurisdictional challenges in motion for no-evidence summary judgment because doing so would, among other things, deny plaintiff right “to stand on the pleadings in the absence of evidence negating jurisdiction”).

Appellants’ sole issue is overruled.

Conclusion

We affirm the judgment of the trial court.

Chief Justice Radack, concurring in the judgment.

Justice Keyes, dissenting.

Sherry Radack, Chief Justice,

concurring.

Because Rios properly and timely amended his petition to nonsuit his tort claims against the University of Texas Health Science Center at Houston [“UT Health”], I believe that the trial court properly denied the Defendants’ Amended Motion to Dismiss. Accordingly, I concur in the judgment.

On April 24, 2015, Rios sued UTHealth and four doctors [“the Physician Defendants”] in connection with the non-renewal of his fellowship appointment, alleging both breach of contract and tort claims. On July 15, 2015, UTHealth filed a Plea to the Jurisdiction and a Motion to Dismiss the Physician Defendants, asserting that, under Tex. Civ. Prac. & Rem. Code § 101.106(e) (West 2011), when a plaintiff sues both a governmental unit and any of its employees under the Texas Tort Claims Act, the employees “shall immediately be dismissed on the filing of a motion by the governmental unit.”

On July 24, 2015, before the trial court had ruled on UTHealth’s Motion to Dismiss, Rios amended his petition. In his First Amended Petition, Rios nonsuited his tort claims against UTHealth, proceeding against the governmental entity based only on a breach of contract claim. Rios asserted his tort claims against the Physician Defendants only, and included for the first time claims for violations of 42 U.S.C. § 1983.

UTHealth did not stand on and obtain a ruling on its previously filed Motion to Dismiss. Instead, it canceled the July 27, 2015 submission date, and, on August 11, 2015, filed Defendants’ Amended Plea to the Jurisdiction and Motion to Dismiss, which addressed the allegations in Rios’s First Amended Petition, specifically “breach of contract against UTHealth, and tortious interference with an existing contract, tortious interference with future relationships, defamation and violation of his first amendment rights pursuant to 42 U.S.C. 1983 against the [Physician] Defendants.” Again, UT Health and the Physician Defendants sought dismissal of the tort claims against the Physician Doctors pursuant to § 101.106(e).

The trial court granted the Defendants’ Amended Plea to the Jurisdiction as to the breach of contract claim against UTHealth, but denied the Amended Motion to Dismiss the tort claims and the § 1983 claims against the Physician Defendants.

On appeal, the UT Health and Physician Defendants contend that the trial court erred in denying their Amended Motion to Dismiss, arguing that “Section 101.106(e) Prevents a Plaintiff from Amending His Petition to Preclude Dismissal of Tort Claims against [the Physician Defendants].” Specifically, the Defendants argue that “the Plain Text of Section 101.106(e) Makes Dismissal of Tort Claims Mandatory Upon the Filing of the Government’s Motion.”

The first issue is whether Section 101.106(e) ever permits a plaintiff to amend his or her petition. Texas Department of Aging and Disability Services v. Cannon, 453 S.W.3d 411, 418 (Tex. 2015) answers this question in the affirmative and makes clear that the governmental entity’s employees do not have “an absolute right to dismissal upon the [101.106(e)] motion’s filing.” As the supreme court notes “a court order, along with certain filings, is required to effectuate dismissal.” Id. The supreme court agreed that nothing in subsection (e) precludes a plaintiff from amending her petition before that dismissal in accordance with applicable procedural rules. Id. at 417. Indeed, the supreme court disavowed several prior appeals court decisions that had held that amended pleadings filed after the government’s subsection (e) motion could not moot the right created by the filing of the motion. Id. at n.12. In so holding, the supreme court stated, “we disapprove of those decisions to the extent they hold that an amended petition filed while a subsection (e) motion is pending is never properly considered.” Id.

The more complicated question is whether the “applicable procedural rules,” id. at 416, permit Rios’s amendment under the specific facts and circumstances of this case. More specifically, was Rios’s initial petition against both UTHealth and the Physician Defendants an “irrevocable election,” id. at 417, to pursue the tort claims against UTHealth only, even though Rios amended his petition to omit tort claims against UTHealth before UTHealth filed its Amended Motion to Dismiss? I believe that Cannon, when considered with Austin State Hosp. v. Graham, 347 S.W.3d 298 (Tex. 2011), compels the conclusion that a plaintiffs amendment, if filed before the governmental entity files a motion to dismiss its employees, is timely and not prohibited.

In Graham, the plaintiff brought tort claims against a state hospital and two of its employee doctors. Id. at 299. The hospital filed a subsection (e) motion to dismiss the doctors, but before the trial court signed an order dismissing the doctors, the plaintiff nonsuited his claims against the hospital. Id. On appeal to the supreme court, the plaintiff argued that his nonsuit precluded the trial court from ruling on the Hospital’s motion to dismiss. Id. at 301. Citing Rule 162 of the Texas Rules of Civil Procedure, the supreme court disagreed, holding that the plaintiffs nonsuit could not prejudice the Hospital’s right to be heard on its “pending claim for affirmative relief,” i.e., its motion to dismiss the employee doctors. Graham, 347 S.W.3d at 301.

In this case, had UTHealth and the Physician Defendants chosen to stand on their first Motion to Dismiss, . Graham would have controlled and Rios’s Amended Petition would have been filed too late to prejudice UTHealth’s and the Physician Doctors’ rights to seek a ruling on their previously filed section 101.106(e) Motion to Dismiss. That, however, is not what happened.

Instead, after Rios amended his petition to nonsuit all tort claims against UTHealth, UTHealth and the Physician Defendants did not seek a ruling on their then-pending Motion to Dismiss. Instead, they filed Defendants’ Amended Motion to Dismiss. As such, the Defendants’ Amended Motion to Dismiss canceled and replaced its first Motion to Dismiss. See Tex. R. Civ. P. 66 (stating that “[ujnless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause_”).

Because the Defendants’ first Motion to Dismiss ceased to exist once they amended it, there was no “pending claim for relief’ when Rios amended his petition to nonsuit the tort claims against UTHealth. Thus, under the reasoning of Graham, Rios’s Amended Petition, which was filed before the Defendants’ Amended Motion to Dismiss—the motion from which this appeal arises—was timely. To hold otherwise under these facts would cause “subsection (e) to conflict with our liberal procedural rules governing pleading amendments.” See Cannon, 453 S.W.3d at 418 (holding that absolute right to dismissal upon filing of 101.106(e) motion would conflict with liberal rules governing pleading amendments).

And, nothing in the language of subsection (e) compels the conclusion that a suit against the government and its employees is an “irrevocable election” to sue the government, if and when the plaintiff amends to sue only the employees before a subsection (e) motion is filed.

The relevant portions of the statute provide:

(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.
(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 unity 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.

Tex. Civ. Prac. & Rem. Code § 101.106(a), (b), (e).

Subsections (a) and (b) use the language “irrevocable election”; subsection (e) does not. Indeed, subsection (e) makes the dismissal of the employees mandatory upon on the filing of a motion by the governmental unit, not upon the filing of a suit against a governmental unit and its employees. We construe a statute’s words according to their plain and common meaning unless they are statutorily defined otherwise, a different meaning is apparent from the context, or unless such a construction leads to absurd or nonsensical results. See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Determining legislative intent requires that we consider the statute as a whole, reading all its language in context, and not reading individual provisions in isolation. See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 51 (Tex. 2014). Because the Legislature used the words “irrevocable election” in subsections (a) and (b), and not subsection (e), and because subsection (e) hinges upon the filing of a motion by the government to obtain the dismissal of the employee defendants, I would interpret subsection (e) to allow a plaintiff to amend his petition to nonsuit claims against the government until the government files a motion to dismiss the claims against the employees.

I believe that, by filing an Amended Motion to Dismiss, UTHealth and the Physician Defendants have waived any right to complain about the trial court’s refusal to grant their first Motion to Dismiss, And, because their Amended Motion to Dismiss was filed after Rios amended his petition, there was no “pending claim for relief’ at the time the amended petition was filed. As such, Rios’s amendment was timely under the reasoning of Graham.

For this reason, I would affirm the trial court’s order denying the Amended Motion to Dismiss the Defendant Physicians.

Evelyn V. Keyes, Justice,

dissenting.

I respectfully dissent. I disagree with the majority’s refusal to dismiss appellee Tomas G. Rios’s suit against appellants Bella Patel, M.D., F.C.C.P., Richard W. Smalling, M.D., Ph.D., Rachshunda Majid, M.D., and Francisco Fuentes, M.D. (the “Physician Defendants”), employees of appellant the University of Texas Health Science Center at Houston (“UTHSC”), on sovereign immunity grounds. I would dismiss this suit under the election of remedies provision of the Texas Tort Claims Act (“TTCA”), Texas Civil Practice and Remedies Code section 101.106(e), which provides, “If a suit is filed under [the Tort Claims Act] 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.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2011).

The majority holds that UTHSC failed to produce evidence of the jurisdictional fact that the Physician Defendants were employees of UTHSC, an undisputed governmental entity, and affirms the trial court’s denial of UTHSC’s motion to dismiss the Physician Defendants. It does not address the central issue on appeal— whether the trial court erred in permitting Rios to amend his Original Petition and thereby avoid dismissal of his claims against the Physician Defendants under section 101.106(e). I disagree with the decision of the majority to decide this case on an evidentiary issue not raised in the trial court—and refuted by the jurisdictional pleadings and evidence—and to ignore the critical central issue in the case.

In his Original Petition, Rios sued UTHSC and the Physician Defendants for torts he alleged UTHSC committed through the Physician Defendants. He also asserted a contract claim against UTHSC. While UTHSC’s motion to dismiss the Physician Defendants under the election of remedies provisions in section 101.106 was pending, Rios amended his pleadings. He retained his contract claim against UTHSC in his Amended Petition, but he dropped his tort claims against UTHSC while retaining the same tort claims he had alleged against the Physician Defendants in his Original Petition. He also added a claim under Title 42, section 1983 of the United States Code against the Physician Defendants based on the exact same allegedly tortious acts of those defendants.

In my view, the majority improperly diverts this case away from the critical legal issue pled by UTHSC on appeal and follows a red herring by holding that UTHSC had the burden of proving that the Physician Defendants were its employees and affirming the case on this ground. It thus ignores the central issue in this case—whether Rios had the right to amend his pleadings as he did and thereby to avoid' dismissal of his suit against the Physician Defendants. I would first respond to the majority’s holdings on its merits. I would hold that the majority’s conclusion that UTHSC had the burden of proving that the Physician Defendants were its employees in order to obtain dismissal of the Physician Defendants under section 101.106(e) of the Tort Claims Act is incorrect under the facts of this case, where the pleadings of both parties characterized the Physician Defendants as employees of UTHSC, the status of these defendants as employees of UTHSC was uncontested by either party in the trial court, and UTHSC nevertheless produced evidence showing that the Physician Defendants were its faculty members in the same Program that employed Rios.

I would then address UTHSC’s central issue on appeal, and I would hold that the trial court erred by allowing Rios to maintain his claims against the Physician Defendants in his Amended Petition. I would hold that Rios was barred by the plain language of section 101.106(a) from amending his pleadings as he did and that his suit against the Physician Defendants must be dismissed under the election of remedies provision in section 101.106(e). I would, therefore, reverse the judgment of the trial court denying UTHSC’s motion to dismiss Rios’s suit against the Physician Defendants under section 101.106(e) for lack of subject-matter jurisdiction. And I would dismiss Rios’s suit against the Physician Defendants with prejudice.

Texas Tort Claims Act

In their sole issue, UTHSC and the Physician Defendants argue that the trial court was compelled to dismiss the Physician Defendants from the suit under section 101.106(e) of the Tort Claims Act.

A. Dismissal for Lack of Subject Matter Jurisdiction Under Section 101.106(e)

Section 101.106 provides, in relevant part,

(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.
(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 ....

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (e), (f) (emphasis added).

A motion to dismiss under section 101.106 raises the issue of sovereign immunity. See Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating that Section 101.106 confers immunity in some instances on employees of governmental units); Fink v. Anderson, 477 S.W.3d 460, 465 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (same). “Sovereign immunity from suit defeats a trial court’s subject-matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Fink, 477 S.W.3d at 465 (noting that although we generally review order on motion to dismiss for abuse of discretion, proper standard of review is determined by substance of issue to be reviewed, not caption of motion). Whether the court has subject-matter jurisdiction is a question of law that we review de novo. Miranda, 133 S.W.3d at 226; Fink, 477 S.W.3d at 465.

We may not presume subject-matter jurisdiction; rather, “the burden is on the plaintiffl ] to allege facts affirmatively demonstrating the trial court’s subject-matter jurisdiction over the case.” Fink, 477 S.W.3d at 465 (emphasis added). “When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. ... If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff[ ] an opportunity to amend.” Miranda, 133 S.W.3d at 226-27; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). “However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised.” Miranda, 133 S.W.3d at 227.

1. Rios’s Claim that UTHSC Had the Burden to Prove the Physician Defendants Were Its Employees to Obtain Their Dismissal Under Section 101.106(e) of the Tort Claims Act

UTHSC and the Physician Defendants argue that the trial court erred in refusing to grant UTHSC’s motion seeking dismissal of its employees, the Physician Defendants, under section 101.106 of the Tort Claims Act. In response, Rios claims that there are “genuine issues of material fact concerning whether the Doctor Defendants are ‘employees’ under section 101.001(5) and covered under section 101.106(e),” and therefore there is a genuine fact issue as to whether the Tort Claims Act applies to his claims against them. If the Act applies, Rios asks whether the trial court properly denied ÚTHSC’s Amended Plea to the Jurisdiction. He states, “Appellants have proffered no evidence to both the appellate and trial court to prove that the Doctor Defendants were actually employed by UT Health at the time that Appellee’s claims arose, and not independent contractors.” He contends, “If the Doctor Defendants were not employees of a government unit, Texas Civil Practice and Remedies Code § 101.106 is not applicable.” This entire argument is a red herring.

At no point in the trial court did Rios allege in his pleadings that the Physician Defendants were not employees of UTHSC or plead that they were independent contractors. In his Original Petition, Rios alleged that UTHSC breached its employment contract with him. He further pled that UTHSC “separately, and through Dr. Smalling, Dr. Majid, and Dr. Patel willfully and intentionally interfered with [his] contract by making false statements about Dr. Rios”; that UTHSC “separately, and through Dr. Smalling, Dr. Majid, Dr. Patel, and Dr. Fuentes individually, intentionally interfered with [his] relationship by submitting false information to the Texas Medical Board”; and “Defendants published a statement of fact to the Texas Medical Board on or about June 23, 2014.” (Emphasis added.)

UTHSC immediately filed a Plea to the Jurisdiction and Motion to Dismiss the Physician Defendants under section 101.106(e). But, before the trial court ruled on UTHSC’s motion, Rios filed a First Amended Petition. In that Amended Petition, Rios dropped his claim that UTHSC had committed torts against him through the Physician Defendants. Instead, he pled that “UT Health Science Center is a local government entity under section 276.112 of the Texas Local Government Code,” and he reasserted his contract claim against UTHSC. He made the exact same factual allegations supporting the exact same tort claims against the Physician Defendants that he had alleged in his Original Petition, claiming that the Physician Defendants had committed torts against him by publishing a defamatory statement of fact about him to the Texas Medical Board and by making false statements that led to his employment contract’s termination. And he added federal section 1983 claims against the Physician Defendants on the exact same basis.

UTHSC responded to Rios’s Original Petition with an Amended Plea to the Jurisdiction and Motion to Dismiss filed on behalf of itself and the Physician Defendants. In it, UTHSC identified the Physician Defendants as members of its faculty and its Program Director for the Cardiovascular Disease Training program to which Rios had been appointed for a one-year term that was not renewed, prompting his suit against his employer— UTHSC. UTHSC identified the University of Texas System Medical Foundation, the administrator of the UTHealth Training Programs for all University of Texas health systems, as both Rios’s and the Physician Defendants’ direct employer. In addition, it produced as an exhibit Rios’s employment termination notice from UTHSC dated April 29, 2014. This exhibit is a letter on UTHSC Medical School Department of Internal Medicine Division of Cardiology and Hyperbaric Mediciné letterhead addressed to Rios signed by Physician Defendant Francisco Fuentes, M.D., Program Director; and it expressly refers to Rios’s deficiencies in participating in the Cardiovascular Diseases Fellowship Training Program. These statements included expressions of concern regarding Rios’s progress in the program received irom Physician Defendants Drs. Smalling and Patel.

Rios did not challenge in the trial court any of the' jurisdictional allegations and exhibits showing that the Physician Defendants were all members of the UTHSC faculty and that they all made the representations evaluating Rios’s performance about which he complains in their capacity as faculty members and as Director of the Program that employed him and failed to renew his contract at UTHSC. Only in his response to UTHSC’s Amended Motion to Dismiss, filed in response to Rios’s Amended Petition, did Rios raise the question of whether the Physician Defendants were really UTHSC employees, without challenging either UTHSC’s pleadings or its evidence. He merely stated, “Assuming arguendo that the Doctor Defendants are employees of UT Health (since discovery may reveal a contractor status), the inquiry then moves toward whether the Doctor Defendants were acting within the scope of their employment.” At no point did Rios allege as a jurisdictional fact that the Physician Defendants were not employees of UTHSC. And, indeed, not only would any such allegation contradict the legal basis of his own pleadings, it would also contradict UTHSC’s allegations (and evidence) that UTHSC is a governmental entity and that the torts of which Rios complains. were alleged torts of the Physician Defendants acting as Program Director and faculty members of the UTHSC program by which he too was employed.

Only in his appellate brief did Rios specifically assert that UTHSC had the burden of proving in the trial court that the Physician Defendants were its employees. He ignored the fact that the plaintiff—not the defendant—has the burden of alleging facts in the trial court sufficient to procure jurisdiction and that the only facts either he or UTHSC alleged in the trial court asserted jurisdiction over the Physician Defendants under the Tort Claims Act, which applies only to governmental entities and their employees. See Miranda, 133 S.W.3d at 224; Fink, 477 S.W.3d at 465 (burden is on plaintiff to allege facts affirmatively demonstrating trial court’s subject-matter jurisdiction over case). In his Amended Petition, Rios did add a claim against the Physician Defendants under 42 U.S.C. section 1983. However, section 1983 applies only to governmental actors acting under color of state law. See 42 U.S.C.A. § 1983; Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982) (“[I]n a § 1983 action brought against a state official, the statutory requirement of action ‘under color of state law* and the ‘state action’ requirement of the Fourteenth Amendment are identical.”). And Rios himself had pled that UTHSC was a governmental entity. Rios could not both bring his section 1983 claims against the Physician Defendants as state actors and simultaneously allege that they were not employees of the governmental entity he had sued.

Moreover, Rios made no factual allegation until his appellate brief that the Physician Defendants were independent contractors and that UTHSC was required to produce evidence in the trial court to show that they were its employees. Nor, of course, did he provide any evidentiary support for his claim—which contradicted UTHSC’s evidence in the trial court as well as both parties’ pleadings in that court. Rios’s factually incorrect claim that UTHSC failed to produce evidence that the Physician Defendants were its employees could not properly be alleged for the first time at the appellate level, as it would require UTHSC to have produced evidence on a non-issue in the trial court—whether the Physician Defendants were or were not employees of a governmental entity, UTHSC. See Miranda, 133 S.W.3d at 227 (“[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties token necessary to resolve the jurisdictional issues raised ....”) (emphasis added).

The majority, however, disregards both the pleadings and the evidence that the Physician Defendants were employees of UTHSC, as Rios himself was. It holds, nevertheless, that a section 101.106(e) defendant must produce evidentiary proof of the unchallenged jurisdictional facts alleged by both sides in the trial court demonstrating that the Physician Defendants were employees of UTHSC to be entitled to dismissal of those employees from Rios’s suit under section 101.106(e). It observes that “[t]he Texas Supreme Court has held that, in a plea to the jurisdiction for a party claiming governmental immunity, the party filing the plea bears the initial burden of establishing that it is a governmental entity.” Op. at 316 (citing Lubbock Cty. Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 305 (Tex. 2014), and Fink, 477 S.W.3d at 466-66 (applying subsection 101.106(f)). That is true, but irrelevant, as it is undisputed that UTHSC is a governmental entity, and Rios expressly pled that it was.

What Miranda actually says is that “[w]hen a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause." Miranda, 133 S.W.3d at 226. “However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised.” Id. at 227 (emphasis added). Here, UTHSC did not have to challenge the jurisdictional facts set out by Rios, as Rios plainly filed his tort suit against a governmental unit and its employees—the jurisdictional facts necessary to bring the ease within the subject-matter jurisdiction of the district court under the Tort Claims Act.

The cases cited by the majority do not hold to the contrary. Lubbock County Water Control, relied upon by the majority, deals with an entirely different set of circumstances, namely those in which a plaintiff sues a governmental entity in contract and seeks waiver of immunity for a suit in contract. This issue is irrelevant to whether the Tort Claims Act waived immunity to Rios’s tort claims alleged against the Physician Defendants. Lubbock County Water Control was not a tort case, like the instant case, for which waiver of governmental immunity must be found in the Tort Claims Act. It was a suit brought against the Lubbock County Water Control and Improvement District, an undisputed governmental entity, under Local Government Code section 271.151, which provides a limited waiver of immunity of its own for local governmental entities that enter into certain contracts. Lubbock Cty. Water Control, 442 S.W.3d at 300, 305. And, in Lubbock County Water Control the jurisdictional facts necessary to provide waiver of immunity, hence to bring the suit within the jurisdiction of the district court, were in dispute.

As the Texas Supreme Court stated in Lubbock County Water Control, the principal issue on appeal was “whether the parties’ contract includes an ‘agreement for providing goods or services to the [Water District].’” Id. at 301. The determination whether the contract was of a type that would entitle the Water District to governmental immunity under Local Government Code section 271.151(2)(A), and thus make it immune from suit, required evidence; whether the Water District was a governmental entity, being an undisputed jurisdictional fact, did not. See id. at 301-02. There is no relationship between the facts and law in Lubbock County Water Control and the facts and law involved in this case.

The majority also cites Fink, a case from this Court, as support for its claim that an individual who seeks dismissal on sovereign immunity grounds from a suit filed against a governmental entity as well as himself is required to produce eviden-tiary proof that he is an employee of that governmental entity. Fink, in fact, supports exactly the opposite conclusion. In Fink, unlike this case, suit was not brought against Fink’s undisputed governmental employer, the University of Texas, but against Fink alone, a situation covered by section 101.106(f) of the TTCA, which is not at issue in this case. See Fink, 477 S.W.3d at 462. The issue on appeal from denial of dismissal under section 101.106(f) was whether representations made by Professor Manfred Fink, an undisputed employee of the University of Texas, regarding a technology he had developed whose patent was held by the university, were within the course and scope of Fink’s employment and thus should have been brought under the Tort Claims Act against the university and not against Fink personally. See id. at 462-63. As it was “undisputed that the University of Texas is a governmental unit and that it was [the defendant] Fink’s employer at the relevant time,” this Court took those undisputed facts to be established as a matter of law and “turn[ed] to whether Fink ha[d] established the two remaining statutory requirements for dismissal under Section 101.106(f),” namely, whether his remarks were within the scope of his employment and whether suit could have brought against the university under the Tort Claims Act. Id. at 466 (emphasis added). Those requirements are inapplicable to suits for dismissal under section 101.106(e).

It is simply error for the majority to cite either Lubbock County Water Control or Fink as authority for the proposition that, to obtain dismissal under section 101.106(e), a governmental entity seeking dismissal of its employees has the eviden-tiary burden of proving the unchallenged jurisdictional fact that they are indeed its employees. I would hold, contrary to the majority, that the trial court plainly erred to the extent that it requires UTHSC to provide evidentiary proof that the Physician Defendants were its employees to be entitled to dismissal under section 101.106(e). Thus, the majority errs by entertaining Rios’s argument and affirming the case.

2. Rios’s Right to Replead His Claims in an Amended Petition After UTHSC’s Filing of a Section 101.106 Motion to Dismiss

Because it holds that UTHSC and the Physician Defendants did not meet their evidentiary burden to prove the employee status of the Physician Defendants, the majority does not address the critical issue raised by UTHSC’s appeal, which is whether Rios could properly amend his petition to replead his claims after UTHSC filed a motion to dismiss under section 101.106(e). I would address this issue, and I would decide it adversely to Rios.

Immediately after Rios filed his Original Petition alleging breach of contract against UTHSC and tort claims against UTHSC “separately and through” the Physician Defendants, UTHSC filed its motion to dismiss the Physician Defendants under section 101.106(e). But before the trial court ruled on UTHSC’s section 101.106(e) motion to dismiss, Rios filed his First Amended Petition. In his Amended Petition, Rios maintained his contract claim but dropped his tort claims against UTHSC. He reasserted his common-law tort claims solely against the Physician Defendants in the exact same language he had used in his Original Petition, and he added a federal section 1983 claim against the Physician Defendants based on the exact same conduct. In response, UTHSC filed its Amended Motion to Dismiss under section 101.106(e).

Under section 101.106(a) of the Tort Claims Act, “[t]he 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.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a) (emphasis added). The suit filed by Rios was unambiguously a suit against a governmental unit that barred any recovery against any of its employees. Once that suit was filed, naming both UTHSC and its employees, the Physician Defendants, UTHSC was entitled to immediate dismissal of its employees under the plain language of section 101.106(e). Id. § 101.106(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”).

The purpose of section 101.106(e) is clear. The TTCA “provides a limited waiver of immunity for certain suits against governmental entities and caps recoverable damages,” and the Act includes an election of remedies provision—section 101.106—to prevent plaintiffs’ attempts “to avoid the Act’s damages cap or other strictures by suing governmental employees.” Mission Consol Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655-56 (Tex. 2008). Section 101.106’s purpose is thus “to force a plaintiff to decide at the outset whether an employee acted independently and is thus solely hable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable .... ” Id. at 657. This provision therefore “favors the expedient dismissal of governmental employees when suit should have been brought against the government.” Tex. Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013); Garcia, 253 S.W.3d at 657 (“[The TTCA’s] election scheme is intended to protect governmental employees by favoring their early dismissal when a claim regarding the same subject matter is also made against the governmental employer.”).

Because the TTCA “is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.” Garcia, 253 S.W.3d at 659 (quoting Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997)) (emphasis added). That is the case here. By contrast, claims against the government that are brought pursuant to waivers of sovereign immunity existing apart from the TTCA, are not brought “under [the Tort Claims Act],” and thus the election of remedies provision does not apply. Id. That was the case, for example, in Lubbock County Water Control. But it is not the case here.

As the Texas Supreme Court has stated, section 101.106 of the Tort Claims Act expressly provides for the dismissal of the employees of a governmental unit on proper motion so that “the suit must proceed against the government or not at all.” Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453 S.W.3d 411, 412 (Tex. 2015); see Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (e). It thus provides certain defendants—“government employees who are sued in tort for conduct within the scope of them employment”—protection against the limited waiver of governmental immunity by the TTCA. Cannon, 453 S.W.3d at 412. Under section 101.106, “by asserting common-law tort claims against both the [government] and the [employees, [the plaintiff] ma[kes] an irrevocable election under subsection (e) to pursue those claims against the government only.” Id. at 417; see Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (e).

I would hold that, under the plain language of section 101.106 and under Cannon, Rios was barred by the exclusive election provision in section 101.106(e) from amending his petition to drop his tort claims against UTHSC while reasserting his contract action against it. And he was barred from reasserting his claims against the Physician Defendants as both common-law tort claims and a section 1983 claim based on the exact same acts and seeking the exact same damages he had sought in his tort claims in his Original Petition. To allow such pleading is to contravene the express purpose of section 101.106 and is therefore improper. See Tex. Civ. Prac. & Rem, Code Ann. § 101.106(a), (e); Tex. Gov’t Code Ann. § 311.021 (2)-(3) (Vernon 2013) (providing that, in enacting statute, it is presumed that entire statute is intended to be effective and that “a just and reasonable result is intended”); In re M.N., 262 S.W.3d 799, 802 (Tex. 2008) (holding same).

Rios, however, relies upon Cannon as authority for filing his Amended Petition and treating his Original Petition as a nullity. Therefore, it is necessary to examine that case in some detail. In Cannon, the Texas Supreme Court considered the issue presented by this case: whether a trial court could accept an amended petition filed by a plaintiff who had initially asserted only tort claims subject to the TTCA against both a governmental employer and its employees after the defendant governmental entity and its employees had filed a motion to dismiss under section 101.106(e) and before the trial court ruled on the motion to dismiss. In Cannon, the plaintiff sued both the Texas Department of Aging and Disability Services (“the Department”) and three of its employees, raising claims of negligent hiring, training, and supervision against the Department and negligent use of excessive force against the individual employees, all torts. Cannon, 453 S.W.3d at 413. The Department and the employees filed both a plea to the jurisdiction and a motion to dismiss under section 101.106(a) and (e). Id. As here, before the trial court ruled on the motion to dismiss, Cannon amended her petition to add federal claims under section 1983 of the United States Code against both the Department and the employees. She then agreed to dismiss all of her common-law tort claims, leaving only her federal section 1983 claims remaining. Id. The trial court denied the Department’s plea to the jurisdiction and denied its motion to dismiss the employees. Id.

Relying on the language in subsection 101.106(e) requiring “immediate” dismissal of the employees upon the filing of a motion by the governmental entity, the Department argued on appeal that the trial court should not have considered Cannon’s amended petition, which was filed while its section 101.106(e) motion to dismiss was pending. Id. at 416. Cannon, on the other hand, argued that “because court action is required to effectuate dismissal of government employees, nothing in subsection (e) precludes a plaintiff from amending her petition before that dismissal in accordance with applicable procedural rules.” Id.

The Texas Supreme Court agreed with Cannon’s interpretation of section 101.106(e) under the circumstances of that case. Id. The supreme court first noted that section 1983 “provides a statutory remedy to individuals whose constitutional rights are violated by state officials,” and, as such, Cannon’s section 1983 claims in her amended petition were federal statutory and constitutional claims not “brought under the Tort Claims Act.” Id. (emphasis added). The court also held that, despite the language of section 101.106(e) stating that “the employees shall immediately be dismissed on the filing of a motion by the governmental unit,” that language “does not translate to an absolute right to dismissal upon the motion’s filing” .because “a court order, along with certain findings, is required to effectuate dismissal.” Id. at 418. The court thus concluded that section 101.106(e) does not “conflict with our liberal procedural rules governing pleading amendments,” and it held that “when a governmental unit files a motion to dismiss under subsection 101.106(e), the plaintiff is not foreclosed from amending her petition in accordance with applicable procedural rules to assert claims that are not brought under the Tort Claims Act.” Id. at 418, 419.

In reaching this holding, however, the Texas Supreme Court specifically noted that Cannon’s amended petition “did not omit claims against the government in an attempt to preserve tort claims against employees that would otherwise be subject to dismissal.” Id. at 417. Indeed, Cannon did “not dispute that, by asserting common-law tort claims against both the Department and the Employees, she made an irrevocable election under subsection (e) to pursue those claims against the government only, even though the court of appeals ultimately determined that the government was immune from suit.” Id. The court concluded, however, that Cannon’s irrevocable election did not extend to her section 1983 claims against the employees, as those claims “were not brought under the Tort Claims Act and thus were not otherwise subject to dismissal.” Id. (emphasis in original).

The posture of the pleadings in Cannon is exactly the opposite of this case. In amending his petition before the trial court could dismiss his claim pursuant to section 101.106(e), Rios did not elect to continue to pursue his tort claim solely against the governmental entity, UTHSC. He did the opposite. He elected to drop his tort claim against UTHSC and to continue to pursue it solely against UTHSC’s employees—in direct violation o'f the plain language and intent of section 101.106(e). See Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013) (stating that section 101.106 “favors the expedient dismissal of governmental employees when suit should have been brought against the government”); Garcia, 253 S.W.3d at 657 (“[The TTCA’s] election scheme is intended to protect governmental employees by favoring their early dismissal when a claim regarding the same subject matter is also made against the governmental employer.”). And Rios did “omit claims against the government in an attempt to preserve tort claims against employees that would otherwise be subject to dismissal,” again putting himself exactly at odds with Cannon. See 453 S.W.3d at 417.

Disregarding Cannon’s, warnings, Rios points out that the Texas Rules of Civil Procedure permit amendments of pleadings that do not “operate as a surprise to the opposite party” until seven days before trial without court permission, and they provide that amended pleadings substitute for the original pleadings. See Tex. R. Civ. P. 63, 65. He then specifically relies upon Cannon’s statement that the plaintiffs section 1983 claims in Cannon, filed in an amended petition after the defendants had moved to dismiss pursuant to section 101.106(e), were not brought under the TTCA and “[sjubsection 101.106(e) of the Tort Claims Act does not contemplate dismissal of claims asserted independently of that Act.” 453 S.W.3d at 412, 416.

Rios, however, overlooks the statement in Cannon pointing out that the amended petition in that case did not “omit claims against the government in an attempt to preserve tort claims against employees that would otherwise be subject to dismissal.” Id. at 417. And indeed, Rios did exactly the opposite from Cannon. After UTHSC and the Physician Defendants moved to dismiss under section 101.106, Rios amended his petition to drop his common-law tort claims against UTHSC and to assert these claims solely against the Physician Defendants, and he added a section 1983 claim against the Physician Defendants based on the exact same alleged conduct and ultimate issues of fact that had formed the basis for his tort claims in his Original Petition.

Rios’s tort claims in his Amended Petition, as well as his federal section 1983 claims, are indistinguishable in subject matter from the common-law tort claims asserted against the Physician Defendants as employees of UTHSC in his Original Petition. Even the language of the Amended Petition is identical to that of the Original Petition except for the addition of language recasting as violations of section 1983 the exact same acts Rios pled in both petitions against the Physician Defendants as the common-law torts of tortious interference with his employment contract, tor-tious interference with future relations, and defamation—namely “making false statements that eventually led to his contract being terminated.” This case is, thus, the exact contrary of Cannon, in which the plaintiff expressly dismissed all of her common-law tort claims and disclaimed reasserting her tort claims as her section 1983 claims. See Cannon, 453 S.W.3d at 413 (noting that after Cannon filed her amended petition asserting 1983 claims, she dismissed all of her common-law tort claims).

I would conclude that Rios amended his petition for the precise purpose of “omit[ting] claims against the government in an attempt to preserve tort claims against employees that would otherwise be subject to dismissal.” Id. at 417. I would hold, therefore, that Rios’s amendment of his pleadings was impermissible and improper under Cannon. I would also hold that Rios could not recast his common-law tort claims as section 1983 claims against the Physician Defendants in his Amended Petition while still pleading his common-law tort claims based on the exact same facts regarding the exact same subject matter as in his Original Petition, as that action was plainly designed to circumvent the election of remedies provision in section 101.106(a). Nor could he cast his section 1983 claims as claims against state actors—the only persons to whom such claims apply—while contradictorily maintaining that the Physician Defendants were not state actors because they had not been shown to be state employees.

I conclude that Rios’s filing of his Original Petition in tort against UTHSC and its employees constituted an irrevocable election to bring his claims against UTHSC only. Therefore, the filing of his Amended Petition, which dropped his tort claims against UTHSC and reasserted the exact same claims against UTHSC’s employees only, constituted a direct violation of the plain language of section 101.106, and that cause of action was barred by the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(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”) (emphasis added).

I would hold, therefore, that, under the circumstances of this case, UTHSC was entitled to immediate dismissal of Rios’s claims against the Physician Defendants upon the filing of his Original Petition. See id. § 101.106(e) (“If a suit is filed under [the Tort Claims Act] 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.”); see also Cannon, 453 S.W.3d at 417 (“Cannon does not dispute that, by asserting common-law tort claims against both the Department and the Employees, she made an irrevocable election under subsection (e) to pursue those claims against the government only, even though the court of appeals ultimately determined that the government was immune from suit.”).

As the pleadings in Rios’s Original Petition affirmatively negated the existence of jurisdiction over the Physician Defendants, UTHSC’s plea to the jurisdiction should be granted, and Rios should not be allowed to replead. See Miranda, 133 S.W.3d at 226-27.

3. The Concurrence

My opinion is not changed by the concurrence. The concurring opinion takes the position that Rios timely amended and replaced his Original Petition and that UTHSC’s Amended Motion to Dismiss, filed in response to Rios’s Amended Petition, “canceled and replaced [its] first Motion to Dismiss.” See Op. at 315. Thus, only the Amended Petition and the Amended Motion to Dismiss remained to be adjudicated. See id. at 8.1 cannot agree with the concurrence that a plaintiff in a suit subject to the Tort Claims Act has an automatic right to amend his original petition after a motion to dismiss the original suit under section 101.106 has been filed and thereby to initiate a new suit that voids the original.

Section 101.106(a) expressly states that “[i]he filing of a suit under [the Tort Claims Act] 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.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a) (emphasis added). By allowing the plaintiff to amend and automatically nullify the original petition while a motion to dismiss under section 101.106 is pending before the trial court can rule on the pending motion to dismiss, a court necessarily declares that the original election was not irrevocable and that no determination is needed as to whether the second suit was barred; it automatically is not barred. This judicial action contradicts the express language of section 101.106(a). And it also nullifies the intent of section 101.106(e), which provides that “[i]f a suit is filed under [the Tort Claims Act] 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(e).

It cannot have been the intent of the Legislature to enact a null statute. See Tex. Gov’t Code Ann, § 311.021 (“In enacting a statute, it is presumed that ... (2) the entire statute is intended to be effective; [and] (3) a just and reasonable result is intended — ”); see also In re M.N., 262 S.W.3d at 802 (in construing statute, “our objective is to determine and give effect to the Legislature’s intent”; court presumes that “the Legislature intended a fair and reasonable result” and that “the Legislature included each word in the statute for a purpose”). Therefore, I cannot agree with the position taken by the concurrence that Rios’s filing of an amended petition during the pendency of a section 101.106 motion to dismiss automatically nullified Rios’s original petition. Nor can I agree that UTHSC’s filing of an amended motion to dismiss responding to the pleading in the amended petition nullified the motion to dismiss pending with respect to the original petition.

The trial court should have considered the allegations in both Rios’s Original Petition and his Amended Petition in order to determine whether he amended his petition solely in an effort to avoid the requirements of section 101.106 and to'nullify the intended effect of the statute. Otherwise, every plaintiff with a claim potentially subject to dismissal under section 101,106 can negate his original pleading—and negate the purpose of section 101.106—simply by filing an amended petition on the exact same grounds against the exact same governmental entity and governmental employees with the exact same ultimate issues of fact, but under a different name for the claims, as soon as the defendant files a motion to dismiss under section 101.106 and before the trial court has the opportunity to rule on the pending motion to dismiss the original petition. He can then claim that the amended petition constitutes the filing of a new suit that nullifies the original petition and any pending motion to dismiss and that any amended motion to dismiss filed in response to the amended petition is not meritorious under section 101.106 because the original suit disappeared. That is exactly what Rios did here. And it is exactly what the concurrence would permit him to do, without providing any means for determining whether the second suit was barred because it merely restated the first suit with respect to the same parties and the same subject matter under an additional theory that merely redesigned his tort claims as federal sec-: tion 1983 claims based on the same ultimate issues of fact.

I would review Rios’s Amended Petition and his Original Petition in light of section 101.106 to determine whether Rios’s “filing of [his original] suit” under the Tort Claims Act constituted an “irrevocable election” that “b.ar[red] any suit”—namely the suit brought by Rios’s substituted amended petition—regarding the same subject matter and therefore whether the second suit was barred. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a). Under the circumstances of this suit, I would hold that the suit pled in Rios’s Amended Petition was barred by section 101.106.

Conclusion

I would reverse the judgment of the trial court denying UTHSC’s motion to dismiss the Physician Defendants. I would grant the motion and dismiss with prejudice Rios’s suit against the Physician Defendants. 
      
      . See FKM P’Ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632-33 (Tex. 2008) (holding that filing an amended petition that omits a previously asserted cause of action “effectively nonsuits or voluntarily dismisses the omitted claims,” which “are effectively dismissed at the time the amended pleading is filed.").
     
      
      . Rule 162 provides in part that "[a]ny dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief Tex. R. Civ. P. 162 (West 2003).
     