Opinion issued September 1, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-01071-CV

———————————

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

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Case No. 2015-23764

O P I N I O N

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., 
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F.C.C.P., Richard W. Smalling, M.D. PhD, Rachshunda 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.
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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 [Rios]’s employer.” The doctors 

asserted that, “[p]ursuant 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 
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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 
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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. 

Valasquez, 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) 
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(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. PRAC. & 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 
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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—
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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 
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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 plaintiff’s 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 plaintiff’s 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 
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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.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Chief Justice Radack, concurring in the judgment.

Justice Keyes, dissenting.