IN THE

TENTH COURT OF APPEALS

No. 10-13-00029-CV

MICHAEL V. PISHKO, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY, N.K. ANAND,

INDIVIDUALLY AND IN HIS OFFICIAL 

CAPACITY, AND TEXAS A&M UNIVERSITY,

Appellants

v.

DR. LALE YURTTAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 12-000579-CV-361

MEMORANDUM OPINION

Lale Yurttas originally sued the Texas A&M University System, Texas A&M 

University, and two of its employees, Michael V. Pishko and N.K. Anand, in their 

official and individual capacities. She asserted a discrimination claim under Texas 

Labor Code section 21.051 and a defamation claim. In her first amended petition, 

Yurttas omitted the Texas A&M University System as a defendant.
Pishko v. Yurttas Page 2

Yurttas alleges that she is a former employee of the University; she had been 

employed as a nontenure-track lecturer and then senior lecturer on a year-to-year 

contract in the Chemical Engineering Department. She also served various leadership 

roles at the departmental and university level. In June 2010, Yurttas was notified that 

her employment with the University would be terminated effective July 31, 2011 as part 

of a reduction in force (RIF). Pishko, then-department head, and Anand, then-Associate 

Dean of the Department of Engineering, were involved in the termination decision, and 

Yurttas alleges that their decision was motivated by their discriminatory animus 

pertaining to her gender, age, race, and religion.

After Yurttas filed her first amended petition, the University, Pishko, and Anand 

filed a plea to the jurisdiction seeking dismissal on sovereign-immunity grounds of all 

claims against the University, except for the Labor Code claims, and of all claims 

against Pishko and Anand in their official capacities. The University also filed a motion 

to dismiss on behalf of Pishko and Anand; it sought dismissal of all claims against 

Pishko and Anand under subsection 101.106(e) of the Tort Claims Act.

In her second amended petition, Yurttas added a free-speech retaliation claim 

under the Texas Constitution and a civil conspiracy claim against Pishko and Anand. 

In her fourth amended petition, Yurttas added a retaliation claim under section 21.051 

of the Labor Code. In all of her petitions, Yurttas alleged that the University was liable 

for Pishko’s and Anand’s actions under the doctrine of respondeat superior because 

they were acting in the course and scope of their employment and that Pishko and 

Anand were acting as the University’s agents in their actions against Yurttas.
Pishko v. Yurttas Page 3

At the hearing on the plea to the jurisdiction and the motion to dismiss, counsel 

for Yurttas did not oppose the plea to the jurisdiction. In her brief, Yurttas notes that an 

approved order granting the plea has been submitted to the trial court. The trial court

denied the motion to dismiss, and this interlocutory appeal followed.

In two issues, Pishko and Anand assert that subsection 101.106(e) applies to 

Yurttas’s tort claims against them in their individual capacities and that the trial court 

erred in denying the motion to dismiss the tort claims against them in their individual 

capacities.

In response, Yurttas initially contends that we lack jurisdiction because no 

interlocutory appeal lies from a denial of a motion to dismiss under subsection 

101.106(e). Yurttas is incorrect:

Section 51.014(a)(5) of the Civil Practice and Remedies Code allows 

an appeal from an interlocutory order that “denies a motion for summary 

judgment that is based on an assertion of immunity by an individual who 

is an officer or employee of the state or a political subdivision of the state.” 

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5). The Supreme Court of 

Texas has held that section 51.014(a)(5) authorizes interlocutory appeal of 

an order denying a motion to dismiss pursuant to section 101.106(e) 

because section 51.014(a)(5) encompasses any order denying assertion of 

an employee’s immunity regardless of the procedural vehicle through 

which such assertion is raised.

Tex. Dep’t. Aging & Disability Servs. v. Cannon, 383 S.W.3d 571, 576 (Tex. App.—Houston 

[14th Dist.] 2012, pet. denied) (citing Austin State Hosp. v. Graham, 347 S.W.3d 298, 299-

301 (Tex. 2011)).

Subsection 101.106(e) provides: “If a suit is filed under this chapter against both 

a governmental unit and any of its employees, the employees shall immediately be 
Pishko v. Yurttas Page 4

dismissed on the filing of a motion by the governmental unit.” TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(e) (West 2011).

We review de novo a trial court’s denial of a motion to dismiss under subsection 

101.106(e) because it is a question of immunity and thus subject-matter jurisdiction. 

City of Webster v. Myers, 360 S.W.3d 51, 56 (Tex. App.—Houston [1st Dist.] 2011, pet. 

denied); City of Corpus Christi v. Eby, No. 13-09-00205-CV, 2011 WL 1437002, at *2 (Tex. 

App.—Corpus Christi Apr. 14, 2011, no pet.) (mem. op.).

“[T]he Tort Claims Act’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.” Mission Consol. ISD v. Garcia,

253 S.W.3d 653, 657 (Tex. 2008) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e), 

(f)).

Under the Tort Claims Act’s election scheme, recovery against an 

individual employee is barred and may be sought against the 

governmental unit only in three instances: (1) when suit is filed against 

the governmental unit only, id. § 101.106(a); (2) when suit is filed against 

both the governmental unit and its employee, id. § 101.106(e); or (3) when 

suit is filed against an employee whose conduct was within the scope of 

his or her employment and the suit could have been brought against the 

governmental unit, id. § 101.106(f). When suit is filed against the 

employee, recovery against the governmental unit regarding the same 

subject matter is barred unless the governmental unit consents to suit. Id.

§ 101.106(b). Because the decision regarding whom to sue has irrevocable 

consequences, a plaintiff must proceed cautiously before filing suit and 

carefully consider whether to seek relief from the governmental unit or 

from the employee individually.

Id. (emphasis added).

[S]ection 101.106 is intended to “force a plaintiff to decide at the outset 

whether an employee acted independently and is thus solely liable, or 
Pishko v. Yurttas Page 5

acted within the general scope of his or her employment such that the 

governmental unit is vicariously liable.” Garcia, 253 S.W.3d at 657. In 

turn, section 101.106’s election scheme favors the expedient dismissal of 

governmental employees when suit should have been brought against the 

government. Id. An early determination of who constitutes the proper 

defendant “narrows the issues for trial and reduces delay and duplicative 

litigation costs” by removing a plaintiff’s ability “to plead alternatively 

that the governmental unit is liable because its employee acted within the 

scope of his or her authority but, if not, that the employee acted 

independently and is individually liable.” Id. Thus, when determining 

the meaning of section 101.106’s various provisions, we must favor a 

construction that most clearly leads to the early dismissal of a suit against 

an employee when the suit arises from an employee's conduct that was 

within the scope of employment and could be brought against the 

government under the TTCA.

Tex. Adjutant General’s Office v. Ngakoue, ___ S.W.3d ___, ___, 2013 WL 4608867, at *4 

(Tex. Aug. 30, 2013).

[W]hen suit is filed against both a governmental unit under the TTCA and 

its employee [,] ... “the employee shall immediately be dismissed on the 

filing of a motion by the governmental unit.” [TEX. CIV. PRAC. & REM.

CODE ANN. § 101.106(e)]. By filing such a motion, 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. Further, subsection (e) does not provide for dismissal of the 

governmental unit, so when the employee is dismissed under that 

provision, the suit then proceeds solely against the government, assuming 

immunity is otherwise waived.

Id., ___ S.W.3d at ___, 2013 WL 4608867, at *6.

Yurttas first argues that, because she agreed to the University’s plea to the 

jurisdiction, she no longer has claims “under this chapter” (the Tort Claims Act) against 

the University and subsection 101.106(e) is not triggered. But because the University’s 

motion to dismiss was filed after the filing of Yurttas’s first amended petition and 

before Yurttas’s agreement to the plea to the jurisdiction, we must look to the first 
Pishko v. Yurttas Page 6

amended petition to determine the applicability of subsection 101.106(e). See Myers, 360 

S.W.3d at 58 n.4 (citing Brown v. Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st 

Dist.] 2008, no pet.); and Villasan v. O’Rourke, 166 S.W.3d 752, 762 (Tex. App.—

Beaumont 2005, pet. denied)); see also Skoda v. Montague County, No. 02-09-00362-CV, 

2010 WL 3075718, at *2 (Tex. App.—Fort Worth Aug. 5, 2010, pet. denied) (mem. op.)

(“Even if the plaintiff amends her petition after the governmental entity files a motion 

to dismiss, the amended petition does not moot the right created by the filing of a 

motion under section 101.106.”). In her first amended petition, Yurttas asserted a 

defamation claim against the University, Pishko, and Anand. We thus disagree that 

subsection 101.106(e) was not triggered.

Yurttas next argues that subsection 101.106(e) does not require dismissal of her 

pending tort claims against Pishko and Anand because she has sued them in their 

individual capacities. But every court that has addressed this precise issue has held that 

subsection 101.106(e) applies when the governmental employee is sued in his 

individual capacity, and Yurttas cites no contrary authority. See Tex. Bay Cherry Hill, 

L.P. v. City of Fort Worth, 257 S.W.3d 379, 399-401 (Tex. App.—Fort Worth 2008, no pet.) 

(“whether a plaintiff sues a governmental employee in the employee’s official or 

individual capacity is irrelevant under the applicable subsections of section 101.106 and 

because all tort theories alleged against a governmental unit are assumed to be claims 

under the Tort Claims Act for purposes of section 101.106. ... [A] suit under the Tort 

Claims Act against a governmental unit bars a same-subject-matter suit against an 

employee in both the employee’s official and individual capacities. We therefore hold 
Pishko v. Yurttas Page 7

that Cherry Hill’s assertion that it sued Haskin only in her individual capacity does not 

bar dismissal under subsection (e).”); see also Myers, 360 S.W.3d at 58-60; Eby, 2011 WL 

1437002, at *6; Skoda, 2010 WL 3075718, at *2; Cox v. City of Fort Worth, 762 F.Supp.2d 

926, 932-33 (N.D. Tex. 2010).

Accordingly, the trial court erred in denying the University’s motion to dismiss 

Pishko and Anand. We sustain Appellants’ two issues and reverse the trial court’s 

order denying the University’s motion to dismiss Pishko and Anand. We render 

judgment dismissing Pishko and Anand from the pending suit in the trial court and 

remand this case for further proceedings consistent with this opinion.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and 

Justice Scoggins

Reversed and rendered, and remanded

Opinion delivered and filed October 31, 2013

[CV06]