JOHN DEWEY UPDEGROVE JANQUILYN MERIDA DNP MEDICAL SURGICAL ASSOCIATES CORSICANA RUBEN GARCIA ETMC PHYSICIAN GROUP INC UT HEALTH EAST TEXAS UROLOGY IN CORSICANA UROLOGY CENTER OF EAST TEXAS RUBEN GARCIA PLLC APPELLANTS v. RODNEY SIMINGTON AND KRISTILYNN SIMINGTON INDVIDUALLY AND AS HEIRS OF THE ESTATE OF MICHAEL SIMINGTON DECEASED APPELLEES (2026)

OPINION

Ruben Garcia, M.D. appeals the trial court's denial of his motion for summary judgment. In a single issue, Garcia urges he is a government employee entitled to immunity under the Texas Tort Claims Act (TTCA). We affirm.

BACKGROUND

Michael Simington filed a medical malpractice suit against Garcia and UT Health East Texas Physicians (ET Physicians) stemming from medical treatment he received from October 2019 through March 2021. Simington alleges Garcia failed to adequately diagnose and treat cancer over an eighteen-month period. Simington passed away in April 2023, and his children substituted in the lawsuit.

Garcia filed a motion for summary judgment asserting that the University of Texas Health Science Center at Tyler (the University), a governmental entity, is his employer and that, as a result, he is entitled to immunity under the TTCA's election of remedies provision. After conducting discovery, Simington responded that while it appears Garcia is employed by the University, he is compensated by ET Physicians under a “Master Services Agreement”. Simington also filed a motion for summary judgment. Following a hearing, the trial court denied Garcia's motion and declined to hear Simington's. This interlocutory appeal followed.

GOVERNMENTAL EMPLOYEE IMMUNITY

In his sole issue, Garcia contends he conclusively established that he is a government employee subject to immunity under the TTCA.

Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). We apply the same standard for reviewing the denial of summary judgment where there is an assertion of immunity as we do for the granting of summary judgment. Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229, 233 (Tex. App.—Dallas 1995, no writ); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5); Ervin v. James, 874 S.W.2d 713, 715 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

The standard for reviewing a summary judgment is well established:

To obtain summary judgment, a movant must either negate at least one element of the plaintiff's theory of recovery, ․ or plead and conclusively establish each element of an affirmative defense. Once the defendant produces sufficient evidence to establish the right to summary judgment, the plaintiff must present evidence sufficient to raise a fact issue.

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (internal citations omitted).

We follow these rules when reviewing a summary judgment: (1) the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in favor of the non-movant. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985)). A properly pleaded affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the basis for summary judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991); Tex. Dep't of Pub. Safety v. Perez, 905 S.W.2d 695, 698 (Tex. App.—Houston [14th Dist.] 1995, writ denied).

In this case, Garcia moved for summary judgment based on the affirmative defense of governmental employee sovereign immunity set forth in Section 101.106 of the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106. To be entitled to summary judgment on the affirmative defense of governmental employee sovereign immunity, the movant has the burden to conclusively establish all the elements of that defense as a matter of law. See Perez, 905 S.W.2d at 698; see also KPMG, 988 S.W.2d at 748; Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). “No disputed question of material fact can remain on the affirmative defense.” Colbert v. Hollis, 102 S.W.3d 445, 448 (Tex. App.—Dallas 2003, no pet.); see Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990).

On appeal, the burden is on the appellant to direct the appellate court to evidence in the record supporting his contentions. Hope's Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 108 (Tex. App.—Dallas 2005, pet. denied); see Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons of Tex. & Jurisdiction v. Jackson, 732 S.W.2d 407, 412 (Tex. App.—Dallas 1987, writ ref'd n.r.e.). This Court is not required to search the record for evidence supporting a litigant's position under particular points of error. Jackson, 732 S.W.2d at 412; see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994) (stating “it has never been a part of an appellate court's duties to search the record for evidence itself.”). Pleadings do not constitute summary judgment proof. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex. 1971). Additionally, conclusory statements are not proper summary judgment proof. Yancy v. United Surgical Partners Intern., Inc., 170 S.W.3d 185, 192 (Tex. App.—Dallas 2005), aff'd, 236 S.W.3d 778 (Tex. 2007); Hodgkins v. Bryan, 99 S.W.3d 669, 674 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

Applicable Law

When a plaintiff alleges a tort against a governmental unit or its employees, the plaintiff must elect whether to sue the governmental unit or its employees; suing one irrevocably bars suit against the other. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a), (b). If the plaintiff chooses to sue only the employees, those employees—if they can meet Section 101.106(f)'s requirements—can force the plaintiff to dismiss its suit against them and to file an amended petition against the governmental unit. Cathcart v. Jones, No. 05-18-01175-CV, 2020 WL 2214105, at *5 (Tex. App.—Dallas May 7, 2020, pet. denied) (mem. op.).

Section 101.106(f) states:

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. 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). “By adopting [S]ection 101.106(f), the Legislature has effectively mandated that only a governmental unit can be sued for a governmental employee's work-related tortious conduct.” Garza v. Harrison, 574 S.W.3d 389, 393–94 (Tex. 2019).

Under Section 101.106(f), a governmental employee may move to dismiss a suit that is “considered to be against the employee in the employee's official capacity only.” See id. To qualify as such, the suit must be one that (1) is “based on conduct within the general scope of that employee's employment” and (2) “could have been brought under this chapter against the governmental unit.” Id. If so, the suit “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.” Id. Section 101.106(f) compels a plaintiff 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.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008). “[S]ection 101.106's election scheme favors the expedient dismissal of governmental employees when suit should have been brought against the government.” Tex. Adjutant Gen.'s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013).

The TTCA 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).

Analysis

In support of his motion for summary judgment, Garcia included (1) an affidavit in which he explained he is employed full time by the University; (2) his Memoranda of Appointment and his agreements to participate in the University's Medical Service, Research, and Development Plan; (3) tax documents showing that the University paid him as a W-2 employee; and (4) an affidavit from the University's human resources officer in which he swore that Garcia is the University's full-time employee as a physician paid by the University and designated as an employee for tax purposes.

In response, Simington provided the Master Services Agreement (MSA), a contract between the University and ET Physicians by which the University agreed to provide physicians for ET Physicians' clinics. Under the agreement, ET Physicians engaged the University “to arrange for certain of its employed physicians to provide clinical and administrative physician services on behalf of” ET Physicians. The University accepted the engagement as an independent contractor of ET Physicians. The MSA further states that the physicians are intended to be University employees for tax purposes. It provides that the physicians are not ET Physicians' employees for tax purposes.

Simington argues that the MSA indicates that the physicians are ultimately paid by ET Physicians instead of the University.¹ Specifically, Simington notes that the MSA provides for the following compensation plan:

As consideration for the Services to be provided by [the University] and Physicians pursuant to the terms of this Agreement, [ET Physicians] shall pay [the University] an amount equal to (i) the SWB Payment (as defined in Section 4.1(a)), plus (ii) the Indirect Cost Reimbursement Payment (as defined in Section 4.1(b)), plus (iii) pre-approved Other Allowable Expenses (as defined in Section 4.1(c)) ․

The SWB Payment includes “the total salary, wages, and payroll expense (including all payroll expenses and payroll taxes ․)” as well as “the cost to [the University] for providing benefits to the Physicians (including, but not limited to, [University]-paid portions of medical health insurance, professional liability insurance ․).” The payment further includes continuing medical education and related travel expenses. The payment must be made to the University monthly at least three business days before the payroll date.

Pursuant to the MSA, the University authorized and ensured each physician authorized ET Physicians to bill and collect all professional fees of each physician. Any sums payable to or received by the University, other than the SWB Payment, are assigned to ET Physicians.

Reviewing the evidence in favor of the non-movant, the evidence raises a genuine issue of material fact about which entity employed Garcia. See Scheele v. Murk, 121 S.W.3d 1, 3 (Tex. App.—San Antonio 2001), aff'd in part & rev'd in part, 120 S.W.3d 865 (Tex. 2003). Via tax records, Garcia presented evidence that he is employed by the University. However, because the definition of “employee” under the TTCA requires “paid service,” the University must have borne the burden of paying Garcia. See Murk v. Scheele, 120 S.W.3d 865, 867 (Tex. 2003). The terms of the MSA provide that ET Physicians reimburses the University for Garcia's salary and benefits for his time at ET Physicians' clinics, which is where Simington alleged his injury occurred.² Therefore, a fact issue as to who ultimately employs Garcia exists and the trial court properly denied Garcia's summary judgment motion.³ We overrule Garcia's sole issue.

DISPOSITION

Having overruled Garcia's sole issue, we affirm the trial court's order.

JUDGMENT

THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the Appellant, RUBEN GARCIA, M.D.; for which execution may issue, and that this decision be certified to the court below for observance.

FOOTNOTES

1.   Simington and Garcia each point to deposition testimony and discovery admissions by which both ET Physicians and the University claim they either pay Garcia directly or reimburse for his salary. However, we focus on the terms of the contract because deposition testimony does not change the contract's express terms. See Kachina Pipeline Co., Inc. v. Lillis, 471 S.W.3d 445, 454 (Tex. 2015).

2.   Garcia urges that the MSA was not signed at the time Simington's injury occurred in October 2019. However, Simington urges his negligent care spanned from October 30, 2019, through at least March 24, 2021. The MSA was signed in March 2020; therefore, it encompasses Simington's complaints.

3.   We do not opine whether Garcia is employed by either the University or ET Physicians. At this juncture, we only hold that a fact issue exists sufficient to defeat summary judgment.

C. MICHAEL DAVIS Justice