Fielding Harwell v. James W. Schrieve

• Court: Court of Appeals of Texas
• Decided: May 22, 2008
• Docket: 09-07-00445-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-07-445 CV

FIELDING HARWELL, Appellant

V.

JAMES W. SHRIEVE, Appellee

On Appeal from the 410th District Court

Montgomery County, Texas

Trial Cause No. 05-10-09376-CV

MEMORANDUM OPINION

Pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, ⁽¹⁾ Fielding Harwell appeals the denial of his motion for summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon Supp. 2007). Harwell, a Technical Guidance Biologist for the Texas Parks & Wildlife Department ("TPWD"), was sued by James W. Shrieve for defamation. ⁽²⁾ Harwell filed combination traditional and no-evidence motions for summary judgment asserting, inter alia, absolute privilege. Shrieve's summary judgment response included a reply to Harwell's absolute privilege contention. As noted, the trial court ultimately denied Harwell's summary judgment motions. Harwell's third appellate issue complains of the trial court's denial of his motions for summary judgment based upon absolute privilege. He contends that Shrieve failed to point out any allegedly defamatory statements by Harwell that were made outside either a judicial proceeding or a quasi-judicial proceeding and, therefore, not absolutely privileged.

Shrieve's suit against Harwell was filed on October 21, 2005, in Montgomery County. Prior to this, Shrieve filed suit against TPWD in a Travis County district court on September 24, 2004, seeking, inter alia, injunctive relief, declaratory judgment, and damages for "tortious interference, business disparagement." Shrieve's request for a temporary injunction against TPWD was denied by the district judge in Travis County, with Shrieve's interlocutory appeal resulting in an affirmance of the trial court's denial. See Shrieve v. Tex. Parks And Wildlife Dept., No. 03-04-00640-CV, 2005 WL 1034086 (Tex. App.--Austin May 5, 2005, no pet.). At their core, Shrieve's lawsuits against TPWD and Harwell relate to TPWD's declaring Shrieve ineligible to participate in the Managed Land Deer Permit ("MLDP") program for a three-year period. ⁽³⁾ Shrieve's interest in the MLDP program stemmed from his ownership of Whitetail Junction Ranch, an expanse of property located in Kimble County, and operated as a hunting lodge specializing in guided hunts for white-tailed deer.

To participate in the MLDP program, a landowner must agree to subject his property to a Wildlife Management Plan ("WMP"), a comprehensive wildlife and habitat management program created and overseen by TPWD. See 31 Tex. Admin. Code § 65.25 (2008) (Tex. Parks and Wild. Dept., Wildlife Management Plan (WMP)). To be eligible to participate at the program level chosen by Shrieve, his WMP was required to include deer population data and deer harvest data from particular years, and include at least four recommended habitat management practices. Id. § 65.25(C)(i)-(iii). WMPs are valid for only one year and to be valid the WMP must be signed by a TPWD biologist or technician. Id. § 65.25(a)(3)(B). A landowner may apply for MLD permits by submitting to TPWD, by August 15 of each year, the required data. See id. § 65.26(h) (2008) (Tex. Parks and Wild. Dept., Managed Lands Deer Permits (MLDP)-White-Tailed Deer).

TPWD may deny a request for MLD permits for three years if the landowner is not in compliance with his or her WMP. Id. § 65.26(g)(2). However, denial of a request for MLD permits does not affect the landowner's ability to hunt on his own property or to allow commercial hunting on the property during the standard open hunting season. Compare 31 Tex. Admin. Code § 65.26 with Tex. Parks & Wild. Code Ann. § 42.0175 (Vernon 2002). A landowner may request review of TPWD's denial of an application for MLD permits. See 31 Tex. Admin. Code § 65.24(e) (2008) (Tex. Parks and Wild. Dept., Permits). A request for review is entertained by a review panel consisting of the Director of the Wildlife Division, the Regional Director with jurisdiction, the Big Game Program Director, and the White-tailed Deer or Mule Deer program leader, as appropriate. Id. § 65.24(e)(3)(A)-(D). The decision by the review panel is final. Id. § 65.24(e)(4).

Summary judgment evidence indicates the decision to initially declare Shrieve ineligible for the program for the three-year period was based in large part on information Harwell provided to his immediate supervisor, Max S. Traweek, Wildlife District Leader, District 4. Shrieve was informed of his ineligibility by a letter dated August 20, 2004, from Max Traweek. The letter also informed Shrieve how to seek review of Traweek's decision. The review panel was assembled and a hearing conducted with Shrieve and his attorney being permitted to participate. The review panel handed down its decision via a letter to Shrieve dated September 15, 2004. The review panel upheld Traweek's decision. The reasons provided by the review panel for upholding Shrieve's ineligibility for the MLD permits reads, in pertinent part, as follows:

The Appeals Panel was presented no new arguments to refute the following points:

1. The population goal of the Wildlife Management Plan (WMP), agreed upon by you and Fielding Harwell, is "8 - 10 acres per deer."

2. You and others in your party acknowledged that population reduction was necessary to achieve the population goal.

3. TPWD records indicate that over 400 deer were added to the property over a three-year period although the population reduction goal had not been achieved.

4. The TPWD biologist in charge of the WMP was not notified of these stockings that were in direct contradiction to the WMP.

The sum of these points clearly demonstrates noncompliance with the WMP, and the absence of trust and cooperation that TPWD expects of landowners being afforded liberal management opportunities through MLDPs.

Harwell was the TPWD biologist in Shrieve's district who formulated Shrieve's yearly WMPs for the 2000 through 2003 hunting seasons. In his second amended petition, Shrieve alleged the following:

5. Harwell has made false, disparaging, material statements about Shrieve and his business, and, as a result of these statements, Shrieve has suffered a three-year plus suspension of his Managed Land Deer Permit ("Permit") on his Whitetail Junction Ranch in Kimble County, Texas. See Exhibit "A," August 20, 2004 notification of suspension and Exhibit "B," August 5, 2005 confirmation of suspension. Harwell's slander suggests Shrieve was involved in illegal conduct and is dishonest. Harwell's statements constitute slander per se and damage Shrieve's character and reputation.

. . . .

8. Harwell's statements are not privileged and Harwell has no immunity.

As a threshold matter, Shrieve disputes our jurisdiction to entertain Harwell's interlocutory appeal. Therefore, we must first determine whether we have the authority to review the trial court's denial of Harwell's motion for summary judgment which raised the defensive issues of absolute privilege, qualified privilege, official immunity, and substantial truth. ⁽⁴⁾ Shrieve contends that as Harwell appealed pursuant to section 51.014(a)(5) of the Texas Civil Practice and Remedies Code, we have no jurisdiction to address any ground except those related to Harwell's "position as a government employee." Citing City of Houston v. Kilburn, 849 S.W.2d 810, 812 n.1 (Tex. 1993), Shrieve argues that the Supreme Court reads section 51.014(a)(5) "to apply to claims of qualified or official immunity." Shrieve further contends that the Supreme Court in Kilburn "refus[ed] to hear interlocutory claims of sovereign immunity unless such claims are based on the employee's official immunity."

However, since Kilburn was decided, section 51.014(a) has been amended on at least four occasions, and the Supreme Court has expanded its approach to interlocutory appeals by both governmental entities and government employees. For example, in Newman v. Obersteller, 960 S.W.2d 621 (Tex. 1997), the issue involved whether section 101.106 of the Texas Tort Claims Act conferred immunity on a public school employee, once a suit against a governmental entity arising out of the same facts had proceeded to judgment. Id. at 621-22. The Texas Supreme Court held:

[t]he language 'bars any action' is an unequivocal grant of immunity in this context. That section 101.106 does not use the word 'immunity' is of no consequence. Our reading of section 101.106 is consistent with the structure and intent of the Tort Claims Act. It is also consistent with section [51.014(a)(5)], ⁽⁵⁾ which protects public officials asserting an immunity defense from the litigation process.

Id. at 622.

In Univ. of Tex. S.W. Med. Ctr. of Dallas v. Margulis, 11 S.W.3d 186 (Tex. 2000), the Supreme Court held the court of appeals had jurisdiction over an interlocutory appeal under section 51.014(a)(5) from the denial of a partial summary judgment. Id. at 188. The court of appeals dismissed the case because it found the partial summary judgment motion did not assert immunity but was, instead, based on a defect in the plaintiff's pleadings. Id. Pointing out that the motion's first sentence read that the government employees "'hereby move for partial summary judgment on their defense of qualified immunity[,]'" the Supreme Court held the motion was "'based on' immunity within the meaning of the statute that permits interlocutory appeals." Id. The Court concluded thusly:

Even if we assume that the motion should not have been granted because it was not supported by evidence, a question that we do not decide on this interlocutory appeal, the motion was 'based on an assertion of immunity.' The court of appeals has jurisdiction to consider whether the trial court erred in denying that motion.

Id.

The ruling in Margulis is similar to the one made in City of Beverly Hills v. Guevara, 904 S.W.2d 655 (Tex. 1995). In Guevara, the Supreme Court permitted a governmental entity to appeal under section 51.014(a)(5) the denial of a summary judgment motion grounded on official immunity when the alleged tortfeasor, a police officer, was not sued in his individual capacity. Id. at 656. The court of appeals had dismissed the appeal for lack of jurisdiction, reasoning that because the governmental entity could not rely on the employee's official immunity, an appeal brought pursuant to section 51.014(a)(5) did not confer appellate jurisdiction over the interlocutory order. Id. Reversing the court of appeals, the Supreme Court ruled as follows:

Section [51.014(a)(5)] authorizes interlocutory appeals for claims 'based on an assertion of immunity by an individual. . . .' The City's motion for summary judgment was clearly 'based on' official immunity within the meaning of section [51.014(a)(5)]. Whether the claim of official immunity was valid should have been decided on the merits.

In Thomas v. White, 102 S.W.3d 318 (Tex. App.--Beaumont 2003, pet. denied), we found jurisdiction of an interlocutory appeal under section 51.014(a)(5) brought by a school district superintendent, Thomas, following a denial of his summary judgment motion on the grounds of sovereign immunity. Id. at 320. Relying on City of Cockrell Hill v. Johnson, 48 S.W.3d 887, 892 (Tex. App.--Fort Worth 2001, pet. denied), we initially observed that "[a]s a government employee asserting immunity, Thomas may appeal the denial of his motion for summary judgment." Thomas, at 320. In discussing the scope of our jurisdiction when presented with an interlocutory appeal via section 51.014(a)(5), we noted the statute does not limit the type of immunity claim upon which the government employee may base his summary judgment motion. Id. at 320 n.1. We then pointed out that "in Newman, 960 S.W.2d at 622, the Texas Supreme Court interpreted section 51.014(a)(5) as permitting an appeal of immunity conferred by statute." Id.

Admittedly, our interpretation of section 51.014(a)(5), as stated in Thomas, appears to conflict with the holdings in certain cases cited by Shrieve on this point. More recent intermediate appellate opinions have indeed embraced this narrowed scope of appellate jurisdiction when a government employee appeals pursuant to section 51.014(a)(5). See Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 626-27 (Tex. App.--Fort Worth 2007, pet. denied); Castillo v. Flores, No. 01-05-00760-CV, 2006 WL 488609, at *10 (Tex. App.--Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.); Colbert v. Hollis, 102 S.W.3d 445, 448 (Tex. App.--Dallas 2003, no pet.) (opinions noting appellate jurisdiction is strictly limited to reviewing interlocutory orders denying summary judgment on official immunity ground). We are certainly mindful that we must strictly construe statutes authorizing interlocutory appeals, and that we may not expand our jurisdiction beyond that conferred by the Legislature. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007). Nevertheless, in construing section 51.014(a)(5), our "sole objective" must be to "give effect to the Legislature's intent[,]" beginning by looking at the plain meaning of the statute. Id. at 840-41. As we observed in Thomas, under section 51.014(a)(5), the type of "immunity" asserted by a government employee in a summary judgment motion is unconditional. Thomas, 102 S.W.3d at 320 n.1. The Legislature attached no restrictive or provisional modifier. See generally Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 694 (Tex. App.--San Antonio 1997, no pet.); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 428-29 (Tex. App.--Waco 1997, writ denied).

In Newman, the Supreme Court stated that section 51.014(a)(5) "protects public officials asserting an immunity defense from the litigation process." Newman, 960 S.W.2d at 622 (citing Gonzalez v. Avalos, 866 S.W.2d 346, 353 n.1 (Tex. App.--El Paso 1993) (Larsen, J., concurring), writ dism'd w.o.j., 907 S.W.2d 443 (Tex. 1995)). That portion of Justice Larsen's concurring opinion in Gonzalez, to which the Newman Court referred, reads as follows:

See Legislative History of Tex. S.B. 908, 71st Leg., R.S. (1989) committee hearings of 3/28/89 and floor discussion of 4/11/89. Senator Whitmire, who sponsored the legislation, stated before the committee that: "It [the bill] follows federal law, which is the rule particularly in civil rights cases and others, where an immunity from prosecution would ultimately be upheld, it would not be right to put that person through the [litigation] process."

Gonzalez, 866 S.W.2d at 353 n.1 (Larsen, J., concurring). Apparently the Legislature's main concern in enacting section 51.014(a)(5) was to provide government employees, who raise immunity from liability or suit from any source, a fast-track procedure for appellate review when such contentions are denied at the trial level. In the instant case, should Harwell's claim of absolute privilege be sustained, he possesses immunity from suit. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 767-68 (Tex. 1987); Linan v. Strafco, Inc., No. 13-05-027-CV, 2006 WL 1766204, at *2 (Tex. App.--Corpus Christi June 29, 2006, no pet.) (mem. op.) (citing Hernandez v. Hayes, 931 S.W.2d 648, 650 (Tex. App.--San Antonio 1996, writ denied)); Ross v. Heard, No. 04-04-00110-CV, 2005 WL 357032, at *2 (Tex. App.--San Antonio Feb. 16, 2005, no pet.) (citing Hurlbut, 749 S.W.2d at 767). We therefore conclude that Harwell's "absolute privilege" ground for summary judgment is sufficiently based on an assertion of immunity to give us jurisdiction under section 51.014(a)(5) to decide the claim on the merits. See Guevara, 904 S.W.2d at 656.

Although Harwell filed both traditional and no-evidence motions for summary judgment, our analysis will focus only on the traditional summary judgment standard. See Tex. R. App. P. 47.1. In Texas, summary judgment is used "'to eliminate patently unmeritorious claims and untenable defenses[.]'" Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989) (quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979)). To obtain summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Summary judgment for a defendant is proper when the summary judgment evidence negates an essential element of the plaintiff's cause of action as a matter of law or conclusively establishes all elements of an affirmative defense as a matter of law. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the nonmovant to produce controverting evidence raising a fact issue as to the elements negated. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); see also Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex. 1970). We review the granting or denial of a summary judgment motion de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

The elements of a cause of action for defamation are stated as follows in the Restatement of Torts, Second:

To create liability for defamation there must be:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Restatement (Second) Of Torts § 558 (1977). As noted above, one of Harwell's grounds for summary judgment was absolute privilege as to any of the statements Shrieve alleged to be defamatory. Shrieve's summary judgment response to the absolute privilege ground was limited to the assertion that Harwell failed to establish the existence of a quasi-judicial proceeding for which the defamatory statements were made. However, "[w]hether an alleged defamatory statement is related to a proposed or existing judicial or quasi-judicial proceeding, and is therefore absolutely privileged, is a question of law." 5-State Helicopters, Inc. v. Cox, 146 S.W.3d 254, 257 (Tex. App.--Fort Worth 2004, pet. denied). When deciding the issue, we consider the entire communication in its context, and we must extend the privilege to any communication that bears some relation to a proposed or existing quasi-judicial proceeding. Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 28 (Tex. App.--Houston [1st Dist.] 2004, pet. denied). "All doubts should be resolved in favor of the communication's relation to the proceeding." Cox, 146 S.W.3d at 257.

An absolutely privileged communication is one for which, due to the occasion upon which it was made, no civil remedy exists, even though the communication is false and was made or published with express malice. See Bird v. W.C.W., 868 S.W.2d 767, 771-72 (Tex. 1994); James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982); Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942). "The falsity of the statement or the malice of the utterer is immaterial, and the rule of nonliability prevails even though the statement was not relevant, pertinent and material to the issues involved in the case." Reagan, 166 S.W.2d at 912. The absolute privilege doctrine applies to communications related to both proposed and existing judicial and quasi-judicial proceedings. See James, 637 S.W.2d at 916-17; Reagan, 166 S.W.2d at 912-13; Cox, 146 S.W.3d at 257. The doctrine

protects the public interest by shielding responsible government officials against harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of actions taken in the exercise of their official responsibilities, even when, at times, it may result in individual citizens suffering pecuniary loss as a result of oppressive or malicious actions by governmental officials.

Town of S. Padre Island v. Jacobs, 736 S.W.2d 134, 143 (Tex. App.--Corpus Christi 1986, writ denied) (op. on reh'g) (citing Barr v. Matteo, 360 U.S. 564, 565, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)). A proceeding is considered to be "quasi-judicial" if it is conducted by a governmental executive officer, board, or commission that has the authority to hear and decide the matters coming before it or to redress grievances over which it extends its authority. Cox, 146 S.W.3d at 257; Hernandez, 931 S.W.2d at 651.

In his summary judgment response, Shrieve argued that under the existing facts:

there was no proceeding of any governmental or quasi-governmental body. Harwell simply made defamatory statements (apparently over a period of time prior to August of 2004, as Harwell corroborated by his August 28, 2004 letter), outside of any proceedings, in fact in advance of even any investigation. The letter states that after the statements were made "an investigation began."

A similar argument was addressed by the Fort Worth Court of Appeals in the following manner:

Even communications made in contemplation of or preliminary to a quasi-judicial proceeding are privileged if they concern a matter that the quasi-judicial body is authorized to investigate and decide. Such communications stand 'on the same footing [regarding] libel as do communications made in a court of justice.'

Cox, 146 S.W.3d at 257 (citations omitted). In describing the WMP/MLDP program, the Austin Court of Appeals in Shrieve v. TPWD began with this observation:

The Department [TPWD] has the statutory responsibility of managing the state's deer population. See Tex. Parks & Wild. Code Ann. §§ 12.001, 61.002, 61.051, 61.054 (West 2002). An important aspect of deer population management is hunting, which is both a traditional recreational pastime for many Texans and a lucrative commercial activity for Texas landowners who lease their property for hunting. Through the statutes and regulations administered by the Department, Texas endeavors to strike a balance among the goals of preventing deer overpopulation, fostering hunting as a recreational and economic activity, and preventing excessive depletion of the deer population. See id.

Shrieve, 2005 WL 1034086, at *1.

Additionally, section 12.001(a) of the Texas Parks and Wildlife Code states that TPWD "shall administer the laws relating to game, fish, oysters, and marine life, as set out in this code." Tex. Parks & Wild. Code Ann. § 12.001(a) (Vernon 2002). Section 12.0011(a) provides that TPWD "is the state agency with primary responsibility for protecting the state's fish and wildlife resources." Id. § 12.0011(a). Chapter 61 of the Parks and Wildlife Code, commonly referred to as the Wildlife Conservation Act of 1983, includes section 61.051 which reads, in pertinent part, as follows:

§ 61.051. Duty to Investigate and Study Certain Wildlife Resources

(a) The department [TPWD] shall conduct scientific studies and investigations of all species of game animals, game birds, and aquatic animal life to determine:

(1) supply;

(2) economic value;

(3) environments;

(4) breeding habits;

(5) sex ratios; and

(6) effects of any factors or conditions causing increases or decreases in supply.

(b) The studies and investigations may be made periodically or continuously.

Id. § 61.051(a)(1)-(6), (b).

As noted above, a body is deemed to be quasi-judicial in nature when it possesses "the power or duty to investigate and to draw conclusions from such investigations." Parker v. Holbrook, 647 S.W.2d 692, 695 (Tex. App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.). It is readily apparent from the facts and circumstances contained in the record that the review panel does qualify as a quasi-judicial body. Shrieve does not direct our attention to any evidence contained in the record which indicates Harwell's letter was communicated to anyone other than the members of the review panel, and our review of the record revealed none. We must resolve all doubts in favor of the communication's relation to a proposed or existing quasi-judicial proceeding. See Daystar Residential, Inc., 176 S.W.3d at 28; Cox, 146 S.W.3d at 257. We conclude that Harwell met his summary judgment burden of proving that any alleged defamatory communication was absolutely privileged because it was related to a proposed or existing quasi-judicial proceeding. See Bird, 868 S.W.2d at 771-72; James, 637 S.W.2d at 916-17; Reagan, 166 S.W.2d at 912-13; Cox, 146 S.W.3d at 257. In sustaining this burden, Harwell has demonstrated he is entitled to summary judgment as a matter of law. See Sci. Spectrum, Inc., 941 S.W.2d at 911.

Under this circumstance, the burden shifted to Shrieve to produce controverting evidence raising a fact issue as to Harwell's claim of absolute privilege. See Walker, 924 S.W.2d at 377; Torres, 457 S.W.2d at 52. However, Shrieve failed to carry this burden, as his summary judgment evidence focuses on either the alleged untruthfulness of Harwell's statements or on Harwell's other summary judgment grounds. ⁽⁶⁾ Therefore, based on the record before us and the law as discussed above, we sustain Harwell's third issue. We therefore reverse the trial court's order denying Harwell's motion for summary judgment and render judgment dismissing Shrieve's defamation action against Harwell. We need not address Harwell's remaining issues, as they would not result in greater relief. See Tex. R. App. P. 47.1.

REVERSED AND RENDERED.

__________________________________

CHARLES KREGER

Justice

Submitted on December 12, 2007

Opinion Delivered May 22, 2008

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Section 51.014 reads, in pertinent part, as follows: "(a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that: (5) 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[.]"

2. A second TPWD employee, Mitch Lockwood, was also named as a defendant by Shrieve, but was later non-suited.

3. On March 28, 2008, the Texas Supreme Court issued its ruling in Mission Consol. ISD v. Garcia, 51 Tex. Sup. Ct. J. 621, 2008 WL 821037, at *4 (Tex. Mar. 28, 2008), wherein it held,

Because the Tort Claims Act 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.

While section 101.106(a) appears to provide an election of remedies to a plaintiff that would bar any suit against any individual employee of the governmental unit regarding the same subject matter, because of our holding under the third appellate issue, we need not analyze this issue by applying the holding in Mission Consolidated. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005).

4. The denied summary judgment motions also made defensive claims of statute of limitations and statutory immunity under section 101.106. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005).

5. When Newman was decided in April of 1997, section 51.014(a)(5) was numbered "51.015(5)." See Newman, 960 S.W.2d at 622. Later that year, the Texas Legislature amended section 51.014 by designating the existing text as subsection "(a)," establishing a subsection (b), and adding two new bases for interlocutory appeal. See Act of May 27, 1997, 75th Leg., R.S., ch. 1296, § 1, 1997 Tex. Gen. Laws 4936, 4937. In this opinion, we will refer to the current version of section 51.014(a)(5) as its wording is identical to that of former section 51.014(5).

6. Recall that Harwell also requested summary judgment based on statute of limitations, qualified privilege, official immunity, substantial truth, and section 101.106. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2005).