COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00029-CV

BRENDA LUND, IN HER 

INDIVIDUAL CAPACITY, AND 

KRISTIN ALRICK, IN HER 

INDIVIDUAL CAPACITY

APPELLANTS

V.

ERIC AND RUTH GIAUQUE, 

INDIVIDUALLY AND AS NEXT 

FRIEND OF H.G., N.G., M.G., C.G., 

AND B.G., MINOR CHILDREN

APPELLEES 

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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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OPINION

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Appellants Brenda Lund and Kristin Alrick appeal from the trial court’s 

order denying their motion to dismiss, which raised the statutory right to dismissal

conferred by civil practice and remedies code section 101.106(f). Tex. Civ. Prac. 

& Rem. Code Ann. § 101.106(f) (West 2011). We reverse the trial court’s order 
2

and render judgment dismissing Appellees’ claims against Lund and Alrick. See

Tex. R. App. P. 43.2(c).

I. BACKGROUND

In 2006, the Texas Department of Family and Protective Services (DFPS) 

obtained a court order terminating parental rights as to four siblings (the 

children). After the termination, the children were placed with a relative in El 

Paso, Texas. It appears that the children were sexually and physically abused 

during that placement, which led DFPS to remove the children. This abuse 

caused the children to become “sexually reactive.”

Meanwhile, appellees Eric and Ruth Giauque decided to adopt several 

children and signed a contract with Building Arizona Families (BAF), a non-profit 

adoption agency in Arizona, to accomplish that goal. In November 2008 and 

soon after the children were removed from their relative in El Paso, Alrick (a 

DFPS adoption caseworker) and Lund (a DFPS adoption supervisor) arranged 

with BAF to place the children with the Giauques for possible adoption. The 

children “perpetrated sexually reactive behaviors” on three of the Giauques’ five 

biological children. In February 2009, the Giauques relinquished the children, 

who were returned to DFPS’s custody.

The Giauques filed suit against Alrick and Lund, raising claims for 

negligence or gross negligence in the placement of the children with the 
3

Giauques.1

 The Giauques specified that their claims were not brought under the 

Texas Tort Claims Act (the Act) and that they were bringing their claims against 

Alrick and Lund in their individual capacities.2

 Alrick and Lund answered and 

asserted the defense of immunity. They also filed a motion to dismiss the 

Giauques’ claims on the basis of section 101.106(f), which provides:

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 [the Act] against the 

governmental unit, the suit is considered to be against the employee 

in the employee’s official capacity only. On the employee’s motion, 

the suit against the employee shall be dismissed unless the plaintiff 

files amended pleadings dismissing the employee and naming the 

governmental unit as defendant on or before the 30th day after the 

date the motion is filed.

Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).

In short, section 101.106(f) extends governmental immunity to acts of 

individual governmental employees acting within the scope of their employment.

3

 

LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 89–90 (Tex. 2011). 

 1

The Giauques originally raised a claim for federal civil-rights violations but 

later amended their complaint to delete their federal claim.

2

The Giauques’ attempt to place their common-law tort claims outside the 

reach of the Act is of no moment. It is clear that “any tort claim against the 

government is brought ‘under’ the Act for purposes of section 101.106, even if 

the Act does not waive immunity.” Franka v. Valasquez, 332 S.W.3d 367, 375 

(Tex. 2011) (quoting section 101.106(f)).

3

The Giauques did not plead in the trial court and do not assert on appeal 

that Alrick and Lund were not acting within the general scope of their 

employment when they placed the children for adoption through BAF. See Tex. 

Civ. Prac. & Rem. Code Ann. § 101.001(5) (West Supp. 2013); Ballantyne v. 

Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004).
4

Alrick and Lund raised their right to dismissal under section 101.106(f) shortly 

after the supreme court held that section 101.106(f)’s phrase “could have been 

brought” applies to claims raised under the Act “regardless of whether the Act 

waives immunity from suit.” Franka, 332 S.W.3d at 385. Therefore, Franka

mandates dismissal of a governmental employee sued in her individual capacity 

under section 101.106(f) even if the governmental employer’s immunity is not 

waived by the Act. Id. at 375–81.

Instead of dismissing Alrick and Lund and naming DFPS as the defendant

as contemplated by section 101.106(f), the Giauques instead argued that section 

101.106(f) violates the due-process guarantee provided by the open-courts 

provision of the Texas Constitution “as to [the Giauques] and as to the People of 

Texas as a whole.” See Tex. Const. art. I, § 13 (“All courts shall be open, and 

every person for an injury done him, in his lands, goods, person or reputation, 

shall have remedy by due course of law.”); Sax v. Votteler, 648 S.W.2d 661, 664 

(Tex. 1983) (recognizing article 1, section 13 is due-process guarantee).

On March 11, 2011, the trial court held a hearing on Alrick and Lund’s 

motion to dismiss. Although a record of the hearing is not a part of the appellate 

record, it appears the trial court requested supplemental briefing on the opencourts issue. The trial court later requested further briefing regarding whether 

Alrick and Lund were acting in loco parentis as to the children in facilitating their 

adoption, which the trial court believed would render the application of section 

101.106(f) a violation of the open-courts provision because an in-loco-parentis
5

claim of negligence was well established at common law. After the briefing was 

completed, the trial court held a non-evidentiary hearing on September 30, 2011,

to determine “whether or not the . . . Act effectively immunizes the defendants, 

and more specifically, whether or not the Open Court provision has been 

impacted by that immunization.” Because the trial court determined more 

evidentiary discovery was needed to determine whether Alrick and Lund acted in 

loco parentis, it again delayed ruling on the motion to dismiss.

On October 26, 2012, the trial court held a third hearing on the motion to 

dismiss and stated the pertinent issue as “whether or not the Open Courts 

Provision is violated by . . . the manner in which the [Texas] Supreme Court[’s] 

. . . interpretation of subsection (f) [in Franka] creates a violation of the Open 

Courts Doctrine.” The trial court then denied Alrick and Lund’s motion to dismiss 

based on the trial court’s belief that application of section 101.106(f) would 

violate the open-courts provision. Alrick and Lund now appeal from the trial 

court’s interlocutory order denying their motion to dismiss. See Tex. Civ. Prac. & 

Rem. Code Ann. § 51.014(a)(5) (West Supp. 2013); City of Arlington v. Randall, 

301 S.W.3d 896, 902 n.2 (Tex. App.—Fort Worth 2009, pet. denied). In a sole 

issue, they argue that the trial court erred by denying their motion to dismiss 

based on section 101.106(f).
6

II. DISCUSSION

On appeal, the Giauques do not assert that section 101.106(f) is 

inapplicable to their suit.4

 Thus, the propriety of Franka is not at issue. See 

Franka, 332 S.W.3d at 367 (noting constitutional challenge to section 101.106(f) 

not raised). Instead, the Giauques argue that section 101.106(f)’s mandatory 

dismissal of a governmental employee sued in her individual capacity, even in 

the absence of a waiver of sovereign immunity, violates the open-courts 

provision. In other words, they argue that section 101.106(f)’s statutory 

extension of governmental immunity to acts of individual government employees 

acting within the scope of their employment unconstitutionally violates their dueprocess rights under the open-courts provision of the Texas Constitution.

A. STANDARDS OF REVIEW

1. Constitutional Review

The open-courts provision prohibits arbitrary or unreasonable legislative 

action that abrogates well-established, common-law remedies. Lebohm v. City of 

Galveston, 275 S.W.2d 951, 955 (Tex. 1955) (op. on reh’g). This provision 

ensures that Texas citizens bringing common-law causes of action will not 

unreasonably be denied the right to redress in the courts. Hanks v. City of Port 

Arthur, 48 S.W.2d 944, 945 (Tex. 1932). “[A] mere difference of opinion, where 

 4

The Giauques raised this argument in the trial court but abandoned it after 

the supreme court denied rehearing in Franka.
7

reasonable minds could differ, is not a sufficient basis for striking down legislation 

as arbitrary or unreasonable.” Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968).

Because we are asked to review a trial court’s legal determination—that 

section 101.106(f) violates the Texas Constitution—we must look at the issue de 

novo. See Stockton v. Offenbach, 336 S.W.3d 610, 614–15 (Tex. 2011); accord

Nat’l Rifle Ass’n of Am. v. McCraw, 719 F.3d 338, 343 (5th Cir. 2013) (applying

de-novo standard of review to issue of constitutionality of Texas state statute). In 

such a review, we begin with the presumption that the statute is constitutional. 

Tex. Gov’t Code Ann. § 311.021(1) (West 2013); Sax, 648 S.W.2d at 664; see 

also Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 

285 (Tex. 2010); HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex. 1994). As 

such, we must attempt to “interpret legislative enactments in a manner to avoid 

constitutional infirmities.” Barshop v. Medina Cnty. Underground Water 

Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996).

The Giauques bore the burden at trial (and now on appeal) to show that 

the statute unconstitutionally violates the open-courts provision. See Rankin, 

307 S.W.3d at 285. The Giauques assert that Alrick and Lund bear the burden to 

establish the constitutionality of section 101.106(f). However, case law is clear 

that the party challenging a statute’s constitutionality has the burden of proving 

that the statute fails to meet constitutional requirements. See Walker v. 

Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); Zaborac v. Tex. Dep’t of Pub. Safety, 

168 S.W.3d 222, 225 (Tex. App.—Fort Worth 2005, no pet.). However, and as 
8

stated above, we review the trial court’s constitutional conclusion, and all legal 

determinations leading to that conclusion, de novo, which allows us to “take a 

completely fresh look at the trial court’s rulings.” W. Wendell Hall et al., Hall’s 

Standards of Review in Texas, 42 St. Mary’s L.J. 3, 14 (2010).

2. Type of Constitutional Challenge

To establish an open-courts violation, the Giauques must show that (1) the 

statute restricts a well-recognized, common-law cause of action (the wellrecognized prong) and (2) the restriction is unreasonable or arbitrary when 

balanced against the Act’s purpose (the balance prong).

5

 Thomas v. Oldham, 

895 S.W.3d 352, 357 (Tex. 1995); Sax, 648 S.W.2d at 664; Flores v. Law, 8 

S.W.3d 785, 787 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

This two-pronged inquiry applies to open-courts issues whether the 

underlying challenge is an as-applied or a facial attack. Boyd v. Kallam, 152 

S.W.3d 670, 680 (Tex. App.—Fort Worth 2004), pets. denied, 232 S.W.3d 774 

(Tex. 2007). Even so, the well-recognized prong is affected by the type of 

challenge raised. With a facial challenge, the party charging that a statute is 

unconstitutional must show that “the statute, by its terms, always operates 

 5

We agree with Alrick and Lund that we must look to the purposes served 

by the Act as a whole and not just to the purposes served by section 101.106(f). 

Cf. Franka, 332 S.W.3d at 380 (noting error to not consider “the Act as a whole” 

in interpreting section 101.106). The Giauques concede that our determination 

regarding the legislature’s purpose “is the same regardless of whether the Court 

examines the issue in terms of section 101.106(f) specifically . . . or the Tort 

Claims Act as a whole.”
9

unconstitutionally.” Barshop, 925 S.W.2d at 627. Under an as-applied 

challenge, on the other hand, “a party concedes that a statute is generally 

constitutional but contends that the statute is unconstitutional when applied to a 

particular person or set of facts.” City of Corpus Christi v. Pub. Util. Comm’n of 

Tex., 51 S.W.3d 231, 240 (Tex. 2001). Thus, an as-applied challenge looks to 

the particular set of facts before the court in determining whether the cause of 

action was well recognized at common law, while a facial challenge does not look 

to the specific facts of the case at hand.

The Giauques assert that their challenge raises the unconstitutionality of 

section 101.106(f) on its face or “as applied to a broad class of people,” i.e., 

persons whose claims are not included within the Act’s waiver of immunity. We 

question whether, indeed, there is a separate and distinct challenge that a statute 

is unconstitutional as applied to a broad class of people. In fact, case law 

recognizes only two constitutional challenges to a statute: as-applied and facial. 

See, e.g., HCA Healthcare Corp. v. Tex. Dep’t of Ins., 303 S.W.3d 345, 349 (Tex. 

App.—Austin 2009, no pet.). We do not need to wade into this argument, 

however, because even if there were such a constitutional challenge, it would be 

subject to the same two-pronged analysis applicable to as-applied and facial 

challenges and, thus, the dictates of the balance prong, which is not affected by 

the type of constitutional challenge raised. See generally Boyd, 152 S.W.3d 680 

(recognizing uniform application of two-pronged, open-courts inquiry to asapplied and facial challenges to statute). Further, the tenor of the Giauques’ trial 
10

and appellate arguments and the fact that the trial court ruled the statute 

unconstitutional on an as-applied basis rebuff their attempt to avoid an as-applied 

analysis. Cf. A.H.D. Houston, Inc. v. City of Houston, 316 S.W.3d 212, 222 (Tex. 

App.—Houston [14th Dist.] 2010, no pet.) (looking behind label placed on 

constitutional challenge and determining appellants’ attempts to avoid facialchallenge test unavailing).

B. APPLICATION

1. Franka and Its Precedential Import

As recognized above, the supreme court in Franka was not presented with 

a constitutional challenge to section 101.106(f). However, it opined that an opencourts challenge to the statute would not be tenable:

We recognize that the Open Courts provision of the Texas 

Constitution “prohibits the Legislature from unreasonably abrogating 

well-established common-law claims,” but restrictions on 

government employee liability have always been part of the tradeoff 

for the Act’s waiver of immunity, expanding the government’s own 

liability for its employees’ conduct, and thus “a reasonable exercise 

of the police power in the interest of the general welfare.”

Franka, 332 S.W.3d at 385 (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 

202 (Tex. 2002) and Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 

520 (Tex. 1995)). Relying on this language in Franka, one of our sister courts 

and two federal trial courts have concluded that section 101.106(f) does not 

violate the open-courts provision because its restriction is reasonable when 

balanced against its purpose and is, thus, not arbitrary or unreasonable. Zepeda 

v. Sizemore, No. SA:11-CV-901-DAE, 2013 WL 4677964, at *7–9 (W.D. Tex. 
11

Aug. 30, 2013); Kelley v. Chambers Cnty., No. 3:12-CV-00194, 2013 WL 

1003455, at *4 (S.D. Tex. Mar. 13, 2013); Harold v. Carrick, No. 01-12-00175-

CV, 2013 WL 4828744, at *3 (Tex. App.—Houston [1st Dist.] Sept. 10, 2013, no 

pet. h.) (mem. op.); Williams v. Nealon, 394 S.W.3d 9, 13–14 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied); cf. Hintz v. Lally, 305 S.W.3d 761, 773

(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding, before Franka was 

decided, section 101.106(f) did not violate open-courts provision because statute 

was “reasonable when balanced against the statute’s purpose”).

While recognizing the above-quoted language from Franka and its 

potential import to the survival of their claims against Alrick and Lund, the 

Giauques assert that because the Franka language was dictum, we instead are 

bound by several cases decided by the supreme court before Franka: Sax, 648 

S.W.2d at 667, Lucas v. United States, 757 S.W.2d 687, 692 (Tex. 1988)

(certified questions), and Weiner v. Wasson, 900 S.W.2d 316, 319–20 (Tex. 

1995). The Giauques argue that these cases demonstrate that section 

101.106(f) violates the open-courts doctrine under the balance prong because no 

substitute remedy was provided. Indeed, the trial court seemed to agree with this 

argument.

a. Dictum

First, the language in Franka, while dictum, was not a brusque statement 

unworthy of deference; rather, the supreme court’s statement that section 

101.106(f) would survive the balance prong of an open-courts challenge was tied 
12

to its extensive discussion of the legislative purposes of and the legislature’s

legitimate use of police powers in section 101.106. Franka, 332 S.W.3d at 382–

85. The precedential value of dictum is based on its classification: obiter dictum 

or judicial dictum. Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston 

[14th Dist.] 1999, pet. denied). Obiter dictum is a statement not necessary to the 

determination of the case and that is neither binding nor precedential. Id. 

Conversely, judicial dictum is a statement made deliberately after careful 

consideration and for future guidance in the conduct of litigation. Palestine 

Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964). Such a statement 

is “at least persuasive and should be followed unless found to be erroneous.” Id. 

Because the supreme court’s conclusion regarding section 101.106(f) and the 

open-courts provision was the natural consequence of its reasoned and careful 

analysis of the legislature’s use of its police power in the interest of the general 

welfare, its open-courts conclusion was judicial dictum and should be viewed at 

least as persuasive. Cf. Elledge v. Friberg–Cooper Water Supply Corp., 240 

S.W.3d 869, 870 (Tex. 2007) (rejecting court of appeals’s determination that 

supreme court’s prior statement was obiter dictum because although prior 

statement not “essential to the outcome,” it “should have been followed”);

Reardon v. Reardon, 359 S.W.2d 329, 330 (Tex. 1962) (recognizing dicta in 

previous case “deliberately made by this Court after a careful consideration” and 

suggesting it was due some degree of deference).
13

b. Cases decided before Franka

Second, the cases primarily relied on by the Giauques to overcome the 

balance prong do not support their argument that a substitute remedy is required

to address the balance prong of an open-courts analysis. Almost sixty years 

ago, the supreme court explicitly held that while a reasonable substitute remedy 

alone might be sufficient to defeat an open-courts challenge, such a remedy is 

not required to survive an open-courts attack under the balance prong:

[L]egislative action withdrawing common-law remedies for well 

established common-law causes of action for injuries to one’s “lands, 

goods, person or reputation” is sustained only when it is reasonable 

in substituting other remedies, or when it is a reasonable exercise of 

the police power in the interest of the general welfare.

Lebohm, 275 S.W.2d at 955 (quoting the open-courts provision) (emphasis 

added).6

 This has been described as a recognition “that an individual quid pro 

quo is unnecessary if a societal quid pro quo exists.” Lucas, 757 S.W.2d at 697 

(Gonzalez, J., dissenting). The Giauques argue that the supreme court “refined” 

 6

It has been suggested that the balance prong as set forth in Lebohm is a 

two-part inquiry:

If the Legislature has provided or left in place a reasonable 

alternative remedy, judicial scrutiny is at an end, and properly so. . . . 

If the Legislature has not provided or left in place a reasonable 

alternative remedy, however, the Constitution requires a second, 

separate inquiry. The courts must independently determine if the 

legislative action constitutes a reasonable exercise of the police 

power.

Lucas, 757 S.W.2d at 718 (Phillips, C.J., dissenting). This is a clear and helpful 

statement of the Lebohm holding and the balance prong.
14

the Lebohm test in Sax, Weiner, and Lucas. They contend that these cases 

mandate that the legislature’s means to achieve a valid purpose may never be 

held reasonable in the absence of a substitute remedy.

In Sax, the supreme court concluded that a statute of limitations, which 

limited a minor’s opportunity to file a healthcare-liability claim, violated the opencourts provision because the means (i.e., the limitation statute as it applied to 

minors) used by the legislature to achieve its purpose (i.e., controlling the rates 

insurers charged by reducing the length of time insureds are exposed to potential 

liability) were not “reasonable when . . . weighed against the effective abrogation 

of a child’s right to redress.” 648 S.W.2d at 667. The supreme court then held 

that both prongs of the open-courts test were met to establish an open-courts 

violation because the “statute effectively abolishes a minor’s right to bring a wellestablished common law cause of action without providing a reasonable 

alternative.” Id. However, this holding does not mandate that a substitute 

remedy must be provided to satisfy the balance prong. It was merely a 

conclusion, expressly limited to the facts of that case, that the lack of a substitute 

remedy combined with the means used by the legislature and the abrogation of a 

right of redress equated to an open-courts violation. Id. at 665–67. Nothing in 

Sax vitiated the Lebohm mandate that, alternatively, a reasonable exercise of the 

police power in the interest of the general welfare could render the legislature’s 

means to achieve a legitimate purpose reasonable and not arbitrary. Indeed, the 

Sax court quoted the Lebohm language with approval. Id. at 665.
15

Likewise, Lucas gives the Giauques no succor. In that case, the supreme 

court was asked on certified questions to decide whether the damages cap for

healthcare-liability claims violated the open-courts provision of the Texas 

Constitution. 757 S.W.2d at 687. In concluding that the cap violated the opencourts provision, the court stated: “[W]e hold it is unreasonable and arbitrary for 

the legislature to conclude that arbitrary damages caps, applicable to all 

claimants no matter how seriously injured, will help assure a rational relationship 

between actual damages and amounts awarded.” Id. at 691. Although its 

holding was based, in part, on the fact that the legislature failed to provide a 

substitute remedy (specifically, a patient-compensation fund), the supreme court 

did not explicitly hold that the lack of a substitute remedy in all instances would, 

ipso facto, compel a conclusion that the legislature’s action was arbitrary or 

unreasonable. See id. at 697 (Gonzalez, J., dissenting) (recognizing that lack of 

substitute remedy invalidating legislature’s means to achieve purpose was only 

majority’s implicit holding); see also id. at 716 (Phillips, C.J., dissenting) 

(acknowledging that “Texas restricts arbitrary legislative abolition of wellrecognized common law causes of action under the open courts provision, while 

declining to require a quid pro quo whenever common law remedies are 

changed”).

Finally, we address the impact of Weiner. In Weiner, the supreme court 

looked at the successor statute to the statute considered in Sax. 900 S.W.2d at 

318. Because the successor statute was substantially the same as its 
16

predecessor, which was found unconstitutional in Sax, the supreme court 

similarly concluded that the means used to achieve the legislature’s purpose 

were unreasonable when weighed against the abrogation of the minor litigant’s 

right of redress. Id. at 318. As with Sax, the Weiner court did not explicitly nullify 

the possibility that the abolition of a common-law cause of action could be 

justified as a reasonable exercise of police power. Id. at 325 (Owen, J., 

dissenting) (recognizing Sax did not compel an analysis devoid of police-power 

exception).

Contrary to the Giauques’ argument that a reasonable substitute remedy is 

required to justify the abrogation of a litigant’s right of redress, it is clear that the 

Lebohm test to determine whether legislative action is arbitrary or 

unreasonable—availability of a substitute remedy or a reasonable exercise of the 

legislature’s police power—is alive and well. Recently, the supreme court, in 

reviewing a statute of repose for compliance with the open-courts provision, 

reaffirmed the relevance of the legislature’s valid exercise of its police power:

But [an] Open Courts analysis is not . . . myopic; focusing solely on 

[the litigant’s] lost right to sue ignores the broader societal concerns 

that spurred the Legislature to act. . . .

. . . .

In enacting the repose [statute], lawmakers made a 

fundamental policy choice: the collective benefits of a definitive cutoff are more important than a particular plaintiff’s right to sue more 

than a decade after the alleged malpractice. . . . The constitutional 

inquiry is whether the Legislature acted unreasonably or arbitrarily.

. . . .
17

[The statute of repose] is a reasonable exercise of the 

Legislature’s police power . . . .

. . . . 

. . . Our constitutional review asks only if the statute represents “a 

reasonable exercise of the police power in the interest of the general 

welfare,” a review that focuses on whether the legislation is “arbitrary 

or unreasonable.”

Rankin, 307 S.W.3d at 287–88, 290, 292 (quoting Lebohm); see also Trinity 

River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 261–62 (Tex. 1994) 

(citing and applying Lebohm to unsuccessful open-courts challenge to statute of 

repose). Likewise, this court and other intermediate courts of appeals explicitly 

have recognized, even after Sax, Lucas, and Weiner, that the legislature’s 

reasonable exercise of its police power can justify its action in abrogating a 

litigant’s well-established, common-law claims, thereby saving the abrogation 

from being held as violative of the open-courts provision as an arbitrary or 

unreasonable legislative act. See, e.g., Williams, 394 S.W.3d at 12; Rivera v. 

Compton, 392 S.W.3d 326, 332–33 (Tex. App.—El Paso 2012, pet. filed); Garza 

v. Zachry Constr. Corp., 373 S.W.3d 715, 723–24 (Tex. App.—San Antonio 

2012, pet. denied); In re Hinterlong, 109 S.W.3d 611, 631 (Tex. App.—Fort 

Worth 2003, orig. proceeding) (op. on reh’g).

Further, we find it instructive that in Lucas and Weiner, the dissenting 

justices specifically took issue with the majority opinions because they seemed to 

gloss over the fact that legislative action could be justified as a valid exercise of 
18

its police power and to rely exclusively on the lack of a substitute remedy in 

striking down the statutes at issue under the open-courts provision. Weiner, 900 

S.W.2d at 324–26 (Owen, J., dissenting); Lucas, 757 S.W.2d at 696–98 

(Gonzalez, J., dissenting) & 716–19 (Phillips, C.J., dissenting). In deciding

Franka, the supreme court certainly was aware of the implicit dilution or 

obscuring of the balance prong as set out in Lebohm and pointed out by the 

dissenting justices in Weiner and Lucas, and it firmly restated the Lebohm

balance prong. 332 S.W.3d at 385; see Lucas, 757 S.W.2d at 716 (Phillips, C.J., 

dissenting) (noting majority “obscures” the correct balance prong). Indeed, the 

dissenting justices in Franka did not take issue with the majority opinion’s 

statement of the appropriate test for an open-courts challenge, which included 

both the substitute-remedy language and the police-power language under the 

balance prong. 332 S.W.3d at 394 (Medina, J., dissenting). Thus, we follow 

Lebohm and Franka and conclude that the balance prong considers whether the 

legislature’s action was arbitrary or unreasonable by deciding (1) whether a 

substitute remedy was provided or (2) whether the legislative action was a 

reasonable exercise of the legislature’s police power in the interest of the general 

welfare.

2. The Balance Prong

We start with an analysis of the balance prong. See Zepeda, 2013 WL 

4677964, at *9 (not discussing well-recognized prong and deciding open-courts 

challenge solely on basis of balance prong); Harold, 2013 WL 4828744, at *3 
19

(same); Williams, 394 S.W.3d at 14 (same). No party suggests that the 

Giauques have been provided with a reasonable, substitute remedy to counteract 

the effect of section 101.106(f) on their claims. Thus, we must now 

independently determine whether the legislature reasonably exercised its police 

power in the interest of the general welfare in enacting section 101.106(f). See

Lucas, 757 S.W.2d at 718 (Phillips, C.J., dissenting).

Before the Act was passed, if suit against a governmental entity was 

barred by immunity, a plaintiff could sue and recover against a government 

employee in her individual capacity even though she could be shielded by official 

immunity if she were sued in her official capacity. Franka, 332 S.W.3d at 383.

Further, the State could waive the government’s immunity. See Prairie View 

A&M Univ. v. Chatha, 381 S.W.3d 500, 512 (Tex. 2012); Hosner v. DeYoung, 1 

Tex. 764, 769 (1847). Indeed, in 1969, the legislature passed the Act, which 

included limited waivers with respect to specific types of claims against 

governmental entities. Act of May 14, 1969, 61st Leg., R.S., ch. 292, 1969 Tex. 

Gen. Laws 874, 874–79 (current version at Tex. Civ. Prac. & Rem. Code Ann. 

§§ 101.001–.109 (West 2011 & Supp. 2013)). Admittedly, this avenue, which 

provides for common-law recovery against the governmental entity, is narrow. 

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008). 

But its purpose was to mandate that plaintiffs pursue lawsuits against 

governmental entities rather than the entities’ employees when the claims are 

based on the employee’s conduct within the scope of employment. Tex. Adjutant 
20

Gen.’s Office v. Ngakoue, 56 Tex. Sup. Ct. J. 1131, 2013 WL 4608867, at *1 

(Aug. 30, 2013). In short, the legislature “sought to discourage or prevent 

recovery against an employee.” Franka, 332 S.W.3d at 384.

To avoid the Act’s restrictions on cognizable claims against the 

governmental entity, claimants began to sue the individual employees of 

governmental entities and not the entities. Ngakoue, 2013 WL 4608867, at *7

(citing Garcia, 253 S.W.3d at 656). As a result, the 1985 legislature added a 

provision to the Act that barred any action against governmental employees after 

claims against the governmental entity were reduced to a judgment or settled. 

Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 

3305 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 101.106).

Claimants, however, continued to sue both the governmental entity and its 

employee. Garcia, 253 S.W.3d at 656. The result was an increase in litigation 

costs for the government. Id. The legislature responded by amending section 

101.106 in 2003 to force claimants

to decide at the outset whether an employee acted independently 

and is thus solely liable, or acted within the general scope of his or 

her employment such that the governmental unit is vicariously liable, 

thereby reducing the resources that the government and its 

employees must use in defending redundant litigation and 

alternative theories of recovery. By requiring a plaintiff to make an 

irrevocable election at the time suit is filed between suing the 

governmental unit under the . . . Act or proceeding against the 

employee alone, section 101.106 narrows the issues for trial and 

reduces delay and duplicative litigation costs.
21

Id. at 657. In other words, the legislature sought to limit a common-law 

claimant’s tort remedy against a governmental employee to those remedies 

provided under the Act against the governmental entity. Franka, 332 S.W.3d at 

385; Michael S. Hull et al., House Bill 4 & Proposition 12: An Analysis with 

Legislative History, Part Three, 36 Tex. Tech L. Rev. 169, 292 (2005). The 

amendment was an attempt to “address the open courts objections in Sax.” Hull, 

House Bill 4, supra, at 190. “As a result, the need for determining if official 

immunity applies is eliminated.” Id. at 293.

We conclude that the legislature’s action in enacting section 101.106(f) 

was a reasonable exercise of its police power to achieve the societal goal of 

limiting claims against individual governmental employees. See id. at 292 

(“Official immunity benefits the public by removing the threat of personal liability 

for officials who should be vigorously administering the policies of government.”) 

Indeed, “restrictions on government employee liability have always been part of 

the tradeoff for the Act’s waiver of immunity, expanding the government’s own 

liability for its employees’ conduct.” Franka, 332 S.W.3d at 385. The fact that 

the governmental entity’s liability in this case was not expanded under the Act

does not affect the underlying reasonableness of the purpose the legislature 

sought to codify through section 101.106(f). See Ngakoue, 2013 WL 4608867, at 

*7 n.12 (noting language of subsection (f) chosen “in furtherance of the purposes 

of the statute”). Therefore, the legislature did not act arbitrarily or unreasonably, 

which is fatal to the Giauques’ open-courts claim. See Barshop, 925 S.W.2d at 
22

629 (cautioning statutes should be interpreted “in a manner to avoid 

constitutional infirmities”); Lucas, 757 S.W.2d at 721 (Phillips, C.J., dissenting) 

(cautioning that a “carefully crafted legislative response to a major social 

problem” cannot be found unconstitutional merely because the solution is 

“distasteful”). Because we conclude that the Giauques have failed to show that 

section 101.106(f) violates the open-courts provision under the balance prong, 

we need not address whether the Giauques’ claims were well recognized at 

common law. Cf. Young v. Jones Lumber Co., 784 S.W.2d 949, 950 (Tex. 

App.—Houston [14th Dist.] 1990, writ denied) (declining to address balance

prong of open-courts analysis after concluding well-recognized prong not 

satisfied).

III. CONCLUSION

We sustain Alrick and Lund’s issue, reverse the trial court’s order, and 

render judgment dismissing the Giauques’ claims against Alrick and Lund under 

section 101.106(f).

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, MCCOY, and GABRIEL, JJ.

DELIVERED: October 31, 2013