author: TERRIE LIVINGSTON, Justice.

text:
    Efrain ALAMEDA, Appellant, v. The STATE of Texas, State.
    No. 2-04-522-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 23, 2005.
    Rehearing Overruled Dec. 15, 2005.

      Swanda & Swanda, P.C., Dean M. Swan-da, Arlington, for Appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallín, James Gibson, Asst. Criminal Dist. Attys., Fort Worth, for State.
    Panel F: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant Efrain Alameda appeals his convictions for aggravated sexual assault of a child under fourteen. In two issues, appellant argues that an audiotape of his sexual conversations with a minor child and a transcription of the audiotape should have been excluded. In his third issue, appellant contends that the cumulation of his sentences is not authorized by the United States Constitution. We affirm.

II. Background Facts

In 2002, Deborah H. let appellant move in with her and her twelve-year old daughter, J.H., while appellant was going through a divorce. Deborah had known appellant for eight to nine years before he moved in. Appellant lived with Deborah and J.H. for approximately a year and moved out because he was upset that his ex-wife kept calling Deborah and asking her to watch their kids instead of calling him.

During his stay with Deborah, appellant stayed in the third bedroom, which was right next to J.H.’s bedroom and across the hall from Deborah’s bedroom. Deborah was home almost every night. While appellant was living with her, Deborah did not see or hear anything that would indicate that appellant and J.H. were engaging in a sexual relationship.

When appellant moved out, Deborah told him and J.H. that if they wanted to talk to each other they would have to go through her. However, after appellant left, Deborah was suspicious that the two were communicating without her knowledge, so she bought a recording device to pick up all incoming and outgoing phone calls to and from her home. Deborah testified that she bought the device because she was concerned for the safety of her daughter. However, she also testified that she did not know that appellant and J.H. were engaging in sexual intercourse when she bought the device, but felt like they were engaging in inappropriate behavior.

Deborah attached the recording device to the phone in the garage. All six phone jacks in the house had the same phone number, and Deborah paid all of the phone bills. For two weeks, she recorded all incoming and outgoing phone calls from her house. During those weeks Deborah obtained fifteen to twenty hours of audiotape between appellant and J.H. Neither appellant nor J.H. was aware that they were being recorded. The audiotapes contained sexually explicit language, and during the conversations, appellant and J.H. discuss having a baby together and moving into an apartment. After listening to the audiotapes of appellant and J.H., Deborah gave them to the Arlington Police Department.

After appellant was charged with aggravated sexual assault of a child, he filed a motion to suppress the audiotapes on the basis that they are not admissible under article 38.23 of the code of criminal procedure because section 16.02 of the penal code makes it an offense to intentionally intercept wire communications when no consent has been given. Tex.Code Crim. PROC. Ann. art. 38.23 (Vernon 2006); Tex. Penal Code Ann. § 16.02 (Vernon Supp. 2006). The State argued that Deborah vicariously consented to the recording of the conversations on J.H.’s behalf. The State pointed out that there is no Texas case law on the vicarious consent doctrine; however, several federal courts have held that the doctrine applies under the federal wiretap laws. Appellant countered that the vicarious consent doctrine has not been adopted in Texas, and two state courts have failed to extend the exception because it does not exist in Texas statutes. Appellant also asserted that in Pollock v. Pollock, the Sixth Circuit held that a parent must have a good faith basis for believing that recording is in the best interest of his or her child before he or she uses the doctrine of vicarious consent to record the child’s telephone conversations. 154 F.3d 601, 607 (6th Cir.1998). According to appellant, the only harm that Deborah was trying to protect J.H. from was driving a car when she was not supposed to and violating house mies. In denying appellant’s motion to suppress, the trial court stated, “[T]he Court specifically finds that a parent can vicariously consent to tape recording of their own child’s testimony.”

At trial, the State introduced an edited audiotape for the jury to hear. Deborah was not sure if the events on the audiotape were in chronological order. The State also gave the jury a transcription of the edited audiotape so the jury could follow along. Appellant objected to the transcription under the best evidence rale stating that it was a duplicate of the audiotape and that there was no need for it. The trial court overruled appellant’s objection.

On October 26, 2004, the jury found appellant guilty of two counts of aggravated sexual assault of a child and assessed his punishment at two thirty-year terms in the Institutional Division of the Texas Department of Criminal Justice.

III. Discussion

A. Motion to Suppress

In his first issue, appellant contends that the trial court erred by not suppressing the audiotape. He argues that Deborah violated Texas wiretap laws because neither J.H. nor appellant knew that their conversations were being recorded and, under article 38.23 of the Texas Code of Criminal Procedure, any evidence that is illegally obtained is not admissible in court. Tex.Code CRIM. Pkoc. Ann. art. 38.23. Additionally, appellant asserts that the vicarious consent doctrine does not apply in Texas, and even if it does, it is not applicable here. The State argues that the trial court did not err in concluding that the vicarious consent doctrine applied.

1. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 67 (Tex.App.-Fort Worth 2005, pet. ref'd); Harrison v: State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62: However, when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

When the trial court does not file findings of fact, we are to view the evidence in the “light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Ross, 32 S.W.3d at 856-58; Guzman, 955 S.W.2d at 89; State v. Maldonado, 176 S.W.3d 419, 421 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

2. Applicable Law

Article 38.23 of the code of criminal procedure states that

no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused oh the trial of any criminal case.

Tex.Code CRiM. PROC. Ann. art. 38.23(a). The penal code addresses the unlawful interception of communications. Tex. Penal Code Ann. § 16.02. Section 16.02(b) states in pertinent part:,

A person commits an offense if the person:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; [or]
(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

Id. § 16.02(b)(1)-(3). The statute lists eleven affirmative defenses to prosecution under section 16.02(b). Id. § 16.02(c). The pertinent part of section 16.02(c) states:

It is an affirmative defense to prosecution under Subsection (b) that:
(4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if:
(A) the person is a party to the communication; or
(B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act.

Id. § 16.02(c)(4). The statute does not state whether consent can be given vicariously by a parent.

3. Analysis

We recognize that this is a case of first impression in Texas. Although no Texas court has addressed this issue in regard to the penal code wiretap laws, several federal and state courts have.

The federal wiretap laws are similar to Texas’s wiretap law, and provide that it is unlawful for a person not acting under color of law to intercept a wire, oral, or electronic communication when one of the parties to the communication has not consented to the recording. 18 U.S.C. § 2511(2)(d) (West 2000). Although the federal statute does not have an explicit exception that allows parents to vicariously consent for their children, several federal courts have held that one exists.

In Pollock, a mother recorded conversations between her daughter and ex-husband and between her daughter and her ex-husband’s new wife because she was concerned that her ex-husband was emotionally abusing her daughter. Pollock, 154 F.3d at 603. Although none of the recorded parties consented to the recording, the mother argued that she had vicariously consented on behalf of her daughter. Id. The mother stated that she placed the tape recorder on the extension telephone in her bedroom and that she recorded the telephone conversations for only a few weeks. Id. at 604. The mother stated that she believed it was in the best interest of her daughter to record the conversations. Id. The Sixth Circuit recognized that it was the first federal circuit court to address the issue of vicarious consent, and that only three federal district courts had previously addressed the issue. Id. at 606-07. The Sixth Circuit Court adopted the vicarious consent doctrine, stating that

as long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.

Id. at 610.

In Thompson v. Dulaney, one of the three cases cited in Pollock, the Utah federal district court held that a mother could vicariously consent to the recording of her minor children’s telephone conversations with their father as a matter of law. 838 F.Supp. at 1545. The mother recorded the conversations after suspecting that the father was interfering with her relationship with the children. Id. at 1544.

The Eastern District of Arkansas has also adopted the vicarious consent doctrine in Campbell v. Price, and held that the doctrine applies when a parent has a good faith belief that the recording of his or her minor child’s telephone conversations is in the child’s best interest. 2 F.Supp.2d at 1191-92.

In Wagner v. Wagner, the Minnesota federal district court also adopted the vicarious consent doctrine after recognizing that all other federal courts that have addressed the issue had adopted it. 64 F.Supp.2d at 900-01.

Turning to a review of state court decisions on the vicarious consent doctrine, we first look to an Alabama opinion. In Silas v. Silas, an Alabama court of civil appeals held that a father has the authority to vicariously consent to the recording of his child’s telephone conversations under the federal wiretap laws. 680 So.2d 368, 372 (Ala.Civ.App.1996). In Silas, the father recorded the telephone conversations between his minor child and his ex-wife while the minor child was at his house during visitation and after witnessing his child getting “extremely upset” and crying after talking with his ex-wife on the telephone. Id. at 371. The Alabama court held that the father had a good faith, objectively reasonable basis for suspecting “that the minor child was being abused, threatened, or intimidated by the mother,” thereby adopting and applying the doctrine. Id. at 372.

An Arizona court of appeals has also adopted the vicarious consent doctrine in State v. Morrison. 203 Ariz. 489, 56 P.3d 63, 65 (2002). In Morrison, a mother installed a tape recorder in her home to pick up all telephone conversations after reading passages in her fourteen-year-old daughter’s diary that contained sexual descriptions referencing the defendant, who was thirty-five years old. Id. at 64. The mother did not obtain consent from either her daughter or the defendant before recording the conversations. Id. The defendant appealed, arguing that the trial court erred in failing to suppress the audiotapes because they were obtained in violation of the federal and state wiretap laws. Id. The court of appeals, citing the language in Pollock, held that a parent can vicariously consent to the recording of his or her minor child’s telephone conversations as long as the parent has a good faith, objectively reasonable basis for doing so. Id. at 65. In so holding, the Arizona court stated that “although the Circuit Courts addressing the issue have used different approaches [vicarious consent doctrine and the extension phone exception], they are uniform in holding that under certain circumstances a parent may surreptitiously record the telephone conversations of their children without violating [the federal wiretap laws].” Id.

We agree with the federal and state courts that have adopted the vicarious consent doctrine. We hereby adopt the standard set forth in Pollock, and hold that as long as a parent has a good faith, objectively reasonable basis for believing that the taping of telephone conversations is in the best interest of the parent’s minor child, the parent may vicariously consent to the recording on behalf of the child.

Our holding that parents may vicariously consent to the recording of their child’s telephone conversations is consistent with the rights and duties our laws give parents in regard to their children. Parents have the statutory duty of care, control, and protection of their children. Tex. Fam. Code Ann. § 151.001(a)(2) (Vernon Supp. 2005). They also have the right to make “decisions of substantial legal significance concerning [their] child.” Id. § 151.001(a)(7). For example, the court of criminal appeals has held that a child has no reasonable expectation of privacy in his bedroom, that a parent has a right to be in the child’s bedroom, and that a parent could consent to the search of his or her child’s bedroom. Sorensen v. State, 478 S.W.2d 532, 534-35 (Tex.Crim.App.1972); Jacobs v. State, 681 S.W.2d 119, 122 (Tex.App.Houston [14th Dist.] 1984, pet. ref'd).

Further, the United States Supreme Court has recognized a parent’s authority over minor children:

[T]he family [is] a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations” .... The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979) (citations omitted); see Miller, 118 S.W.3d at 766. Therefore, even though not specifically stated in the family code, we believe that a parent can, in order to protect his or her minor child, record his or her minor child’s telephone conversations if the parent meets the Pollock criteria discussed above. As a recognized exception to Texas wiretap laws, we further hold that a recording that meets the Pollock standards is therefore not excluded by article 38.23.

4. Application of the Vicarious Consent Doctrine

Having recognized a vicarious consent doctrine exception to the Texas penal code wiretap statute and article 38.23, we must determine whether Deborah could vicariously consent for J.H. under the Pollock standards. At the October 25, 2004 suppression hearing, Deborah testified that while appellant lived in her house, he allowed J.H. to do things she was not supposed to. For example, Deborah stated that appellant allowed J.H. to drive a car when she was only thirteen years old. On one occasion, appellant called Deborah after the car he and J.H. were driving in ran off the road. When Deborah asked who was driving, appellant said he was; however, J.H. later admitted that she was the one driving. Deborah heard from friends that appellant was continuing to let J.H. drive, although she did not personally see it. Additionally, Deborah testified that appellant told her that he enrolled J.H. in a gym and had her lie about her age because the minimum age limit was sixteen. Moreover, after appellant moved out, he continued to contact J.H. Deborah testified that she knew that appellant and J.H. were still in contact with each other because appellant’s family would tell her things about herself and J.H. that no one knew but them.

Deborah also testified that the reason she recorded J.H.’s telephone conversations was because she believed that J.H. and appellant were engaging in inappropriate behavior. Although she did not suspect that the two were engaging in sexual behavior at the time she started the recording, Deborah did believe that J.H. and appellant were communicating with each other without her knowledge and consent. The fact that Deborah did not know that J.H. and appellant were in a sexual relationship until after listening to the recordings is not fatal. In the cases cited above construing the federal wiretap law, the parents only suspected that the child was being manipulated or abused before installing the recording device, and the recordings confirmed their suspicions. It would seem logical that parents could install a recording device on their telephone after suspecting that their child was engaging in inappropriate behavior with an adult, regardless of whether parents suspected the behavior was sexual in nature. Thus, viewing this evidence in the light most favorable to the trial court’s rulings, we hold that the evidence shows that Deborah had a good faith, objectively reasonable basis for believing that the taping of the telephone conversations was in J.H.’s best interest.

Because we hold that the trial court correctly determined that Deborah had a good faith, objectively reasonable belief that recording J.H.’s telephone conversations was in J.H.’s best interest, we hold that the trial court did not err in allowing the audiotapes to be admitted and denying appellant’s motion to suppress. We overrule appellant’s first issue.

B. The Transcription of the Audiotape

In his second issue, appellant argues that the trial court abused its discretion in admitting the transcription of the audiotape for record purposes and as a demonstrative aid for the jury because he contends the audiotapes were inadmissible. However, appellant concedes admitting the transcription was not improper if the audiotape was properly admitted. Because we have held that the audiotape was properly admitted and appellant has conceded this issue, we need not address it. Appellant’s second issue is overruled. Tex. R.App. P. 47.1.

C. Cumulation of Sentences

In his third issue, appellant argues that the trial judge’s cumulation of his sentences violated the United States Constitution and is therefore void. Appellant contends that the jury, not the trial judge, should have cumulated his sentences because they assessed his punishment. He is not arguing that the statute allowing the cumulation of sentences is unconstitutional; rather, he is complaining about who decides whether or not the sentences are cumulated when a jury assesses punishment.

The pertinent section of article 42.08 of the code of criminal procedure provides as follows:

When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction .... in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin with the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases.

Tex.Code CRim. PROC. Ann. art. 42.08(a) (Vernon Supp.2005). Section 3.03(b) of the penal code states that if a person is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of an offense under section 22.021 of the penal code committed against a victim younger than seventeen years of age at the time of the commission of the offense. Tex. Penal Code Ann. § 3.03(b)(2) (Vernon Supp. 2005). Appellant argues that this case falls within the rule established by the Supreme Court in Apprendi v. New Jersey that a defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. 530 U.S. 466, 483, 120 S.Ct. 2348, 2359, 147 L.Ed.2d 435 (2000).

Here, after the jury assessed appellant’s punishment at two thirty-year sentences, the trial judge entered an order cumulat-ing the sentences. The cumulation of the sentences, sixty years, does not exceed the statutory maximum for the offense. Aggravated sexual assault of a child under fourteen is a first degree felony punishable by not more than 99 years to life in the state penitentiary. Tex. Penal Code Ann. § 12.32 (Vernon 2003); § 22.021 (Vernon Supp.2005). Thus, the sentence appellant received, sixty years, does not run afoul of Apprendi.

Appellant further argues that he chose a jury to assess his punishment, so they should determined whether the sentences would be cumulated, not the trial judge. We have recently rejected this same argument in Tyson v. State. 172 S.W.3d 172, 176-77 (Tex.App.Fort Worth 2005, pet. filed). Appellant’s third issue is overruled.

IV. Conclusion

Having overruled appellant’s issues, we affirm the judgment of the trial court.

      . Appellant cites Duffy v. State, 33 S.W.3d 17, 25 (Tex.App.El Paso 2000, no pet.) and Kent v. State, 809 S.W.2d 664, 668 (Tex.App.Amarillo 1991, pet. ref'd). However, these cases deal with the recording of a spouse's telephone conversations. Duffy, 33 S.W.3d at 20-21; Kent, 809 S.W.2d at 667. They are distinguishable from the present case because here we are addressing whether a parent can vicariously consent to the recording of a minor child's conversations, not whether a married person can consent to the recording of his or her spouse’s conversations.

      . In Allen v. Mancini, a modification of a parent-child relationship case construing chapter 123 of the civil practice and remedies code, the Eastland Court of Appeals looked at the federal wiretap laws and stated that Mancini had the right to consent to the audiotape recordings because he was the joint managing conservator of the minor child, following the criteria set forth in Pollock. 170 S.W.3d 167, 172-73 (Tex.App.Eastland 2005, pet. filed).

      . See, e.g., Pollock, 154 F.3d at 610; Wagner v. Wagner, 64 F.Supp.2d 895, 901 (D.Minn.1999); Campbell v. Price, 2 F.Supp.2d 1186, 1191-92 (E.D.Ark.1998); Thompson v. Dulaney, 838 F.Supp. 1535, 1545 (D.Utah 1993). The Fifth Circuit has not addressed this issue.

      . Other federal circuit courts have addressed the issue under the extension phone exception, which exempts from the federal wiretap law any telephone instrument being used by the subscriber in the ordinary course of business. See Scheib v. Grant, 22 F.3d 149, 154 (7th Cir.1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977).

      . The legislature has recognized that parents are presumed to be appropriate decision-makers, giving parents the explicit legal right to consent to their minor child’s medical care and surgical treatment. Tex. Fam.Code Ann. § 151.001(a)(6); Miller ex. rel. Miller v. HCA, Inc., 118 S.W.3d 758, 766 (Tex.2003).

      . Appellant argues that a minor child has a right to privacy; however, we need not address this issue after determining that a parent can vicariously consent to the recording of his or her child's telephone conversations. See Tex.R.App. P. 47.1.


source: Caselaw Access Project

author:
FELIPE REYNA, Justice.
      TOM GRAY, Chief Justice,

license: Public Domain

text:
    WAXAHACHIE INDEPENDENT SCHOOL DISTRICT, Appellant, v. Tim JOHNSON and Ed White, Appellees.
    No. 10-04-00367-CV.
    Court of Appeals of Texas, Waco.
    Nov. 23, 2005.
    Dissenting Opinion of Sept. 7, 2005.

      Dennis Eichelbaum, Schwartz & Ei-chelbaum PC, Frisco, for appellant.
    Daniel A. Ortiz, V. Shane Goetz, Rossetti & Goetz, Arlington, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Waxahachie Independent School District (WISD) files this appeal arguing that the trial court erred in denying its plea to the jurisdiction under newly-enacted section 101.106(b) because the plaintiffs, Tim Johnson and Ed White, filed the underlying lawsuit against both WISD and its employees regarding the same subject matter. Because we find that the cause of action against WISD does not involve the same subject matter as the cause of action against WISD’s employees, we affirm.

Factual and Procedural History

Tim Johnson and Ed White were employed by WISD as maintenance coordinators. In August 2003, Johnson and White (Appellees) filed a written grievance against certain members of the Board of Trustees, complaining of harassment, stalking, and micromanagement. Superintendent Bobby E. Parker told Appellees that the filing of the grievance “pretty much sealed [their] fate.” The next day they were placed on administrative leave, and five days later their employment was terminated. Appellees appealed the termination of their employment through WISD’s administrative procedures. Their administrative appeal was denied by the WISD Board of Trustees on November 11, 2003.

In October 2003, WISD employees Jerry McLemore and Charles Tims, acting at Parker’s direction, reported to the local police that Appellees had accessed the WISD computer network and obtained the social security numbers of all WISD employees. Shortly after the Board of Trustees denied the Appellees’ administrative appeal, Johnson was arrested by the Wax-ahachie Police for tampering with government records, a third-degree felony. White was arrested and charged with the same offense on December 4. However, both Appellees were no-billed by separate grand juries in April 2004.

In September 2004, Appellees filed suit against WISD for wrongful termination of their employment and against Parker, McLemore, and Tims (Defendant Employees) for malicious prosecution. WISD and the Defendant Employees filed separate pleas to the jurisdiction. The Defendant Employees filed a motion to dismiss and argued that the Appellees had not exhausted their administrative remedies against the Defendant Employees on the malicious prosecution claim. WISD filed a plea to the jurisdiction and argued that because the Appellees had filed suit against both the school district and the Defendant Employees, Appellees are barred from filing suit against WISD under the election of remedies statute of the Texas Tort Claims Act (TTCA). The trial court granted the Defendant Employees’ motion and denied WISD’s plea and motion to reconsider. The trial court severed the Defendant Employees from WISD and both parties appealed in separate actions to this Court.

In this appeal, WISD argues that the trial court erred in denying its plea to the jurisdiction.

Sovereign Immunity

Governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.1998). Sovereign immunity has two components: immunity from liability and immunity from suit. Wichita Falls St. Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003). Immunity from suit is waived to the extent of liability created by the TTCA. Tex. Crv. PRAC. & Rem.Code Ann § 101.025(a) (Vernon 2005); Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Immunity from suit protects the state from being sued without its consent. Texas DOT v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Absent the State’s consent to suit, a trial court lacks subject matter jurisdiction. See id. Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo. Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

In a suit against a governmental entity, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity and pleading facts showing that the trial court has jurisdiction. Miranda, 133 S.W.3d at 226. When deciding whether to grant a plea to the jurisdiction, the trial court looks to the allegations in the petition together with any relevant jurisdictional evidence. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

The substance of WISD’s plea to the jurisdiction involves newly-amended section 101.106 of the Texas Civil Practice and Remedies Code. Tex. Civ. PRAC. & Rem.Code Ann. § 101.106 (Vernon 2005). Previously section 101.106, entitled “Employees Not Liable After Settlement or Judgment” stated: “A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Civ. PRAC. & Rem. Code § 101.106). In 2003, the Legislature amended section 101.106 to its current form. Entitled “Election of Remedies,” section 101.106 is as follows:

(a)The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) 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.
(f) 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 § 101.106.

The Legislature amended section 101.106 apparently to force a plaintiff to choose whether he would seek to impose tort liability on a governmental unit or on governmental employees acting as individuals outside their official capacity. See Villasan v. O’Rourke, 166 S.W.3d 752, 758, 759-60 (Tex.App.-Beaumont 2005, pet. filed). The choice of one immediately and irrevocably bars the plaintiff’s claims against the other. Tex. Civ. PRác. & Rem. Code § 101.106(a)-(d). A plaintiff unwise in his choices potentially faces an irrevocable bar against both the governmental entity and its’ employees. Id. The effect of the statute is that a plaintiff is no longer able to include every potential tortfeasor in a suit, argue alternative theories of recovery based on the same conduct, and allow a fact finder to decide which party was the wrongdoer. See Villasan, 166 S.W.3d at 758. “The prior statutory language may well have been intended to yield the same result, but court interpretations have read it otherwise so long as the plaintiff was willing to sue the parties in the ‘correct’ order.” Michael D. Morrison, Texas Tort Law—2003; It Was a Very_Year, 56 Baylor L.Rev. 423, 479-80 (2004).

Of the few appellate decisions addressing section 101.106, all involve dismissing the suit against the governmental employees, specifically section 101.106(e). This is because the statute strongly favors dismissal of the governmental employees. Tex. Civ. PRAC. Rem.Code § 101.106(e), (f). Upon the motion of either the government or the employees, a plaintiff is forced to proceed against the government alone in three circumstances: “(1) when the suit is initially filed against the governmental agency alone; (2) when the suit is initially filed against both governmental agency and its employees; and (3) when the suit is initially filed against the government employee when the employee’s conduct is alleged to have been within his scope of employment.” Villasan, 166 S.W.3d at 758. The decisions have held that once the government files a motion to dismiss the employees under section 101.106(e), the trial court must grant the motion and dismiss the employees from the suit. Villasan, 166 S.W.3d at 761-62; Hernandez v. Duncanville Sch. Dist., No. 3:04-CV-2028-BH (B), 2005 WL 723458 at **5-6, 2005 U.S. Dist. LEXIS 5090 at **16-18 (N.D.Tex. Mar. 29, 2005) (not designated for publication); Martinez v. Ctr. for Health Care Servs., No. SA-04-CA-0412RF, 2005 WL 1168433 at *2, 2005 U.S. Dist. LEXIS 9379 at *6 (W.D.Tex. May 12, 2005) (not designated for publication).

The present case concerns the opposite situation. Instead of seeking to dismiss the Defendant Employees under section 101.106(e), WISD argues that 101.106(b) requires the dismissal of Appellees’ case against the governmental unit.

Section 101.106(b) states that the filing of a suit against any employee of a governmental unit forever bars any suit or recovery against the governmental unit involving the “same subject matter.” Because Appellees filed suit against the Defendant Employees for malicious prosecution, WISD argues that Appellees suit against it for unlawful termination of their employment should be dismissed under section 101.106(b). WISD’s arguments in support of dismissal under section 101.106(b) are twofold: (1) under section 101.106(b) the capacity in which the Defendant Employees were sued is irrelevant; and (2) the cause of action against the Defendant Employees and the cause of action against WISD consist of the same subject matter.

Capacity of Employee Irrelevant

First, WISD argues that the simple act of filing a suit against a governmental employee automatically bars a suit against the governmental unit, irrespective of whether the suit is filed against the employee in his official capacity or in his individual capacity. WISD states that it is irrelevant that Appellees sued the Defendant Employees for a common law claim outside the TTCA. They reason that because the language “under this chapter” is omitted from section 101.106(b), the provision is not restricted to TTCA claims alone, but applies to any common law tort claim brought against a governmental employee. Nor, WISD argues, does it matter that Appellees sued the Defendant Employees in their individual capacity because section 101.106(b) does not distinguish between suits filed against government employees in their official capacity and those filed against employees in their individual capacities. • Therefore, WISD argues it is irrelevant that Appellees filed the lawsuit against the Defendant Employees, either as individuals or in their official capacity, because in either instance the lawsuit against WISD is still barred.

Because amended section 101.106 contains similar language to that of former section 101.106, we look to previous interpretations of former section 101.106 for our analysis. See Act of May 17, 1986, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Crv. Prac. & Rem.Code § 101.106). While the former statute did not address it, interpretations of former section 101.106 did not differentiate between whether the government employee was sued in his official or individual capacity in order to determine whether the statute’s bar applied. ‘Whether the plaintiffs claim against the governmental unit falls under the TTCA is relevant, but whether the plaintiffs claim against the employee falls under the TTCA is not.” Hallmark v. City of Fredericksburg, 94 S.W.3d 703, 710 (Tex.App.-San Antonio 2002, pet. denied) (citing Brand v. Savage, 920 S.W.2d 672, 674-75 (Tex.App.-Houston [1st Dist.] 1995, no writ)). This is because the purpose of former section 101.106 was to protect government employees from individual liability when a claim based upon the same facts is also made against their government employers under the TTCA. Hallmark, 94 S.W.3d at 710 (citing Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex.App.-El Paso 1997, no writ)).

The current version of amended-statute section 101.106(b) also does not differentiate between an employee in his official or individual capacity, and a deeper analysis reveals why this is so. Tex. Crv. PRAC. & Rem.Code § 101.106. Filing a suit against an employee in his official capacity is “an attempt to impose liability on the State.” Tex. Parks and Wildlife Dept. v. E.E. Lowrey Realty, Ltd., 155 S.W.3d 456, 458 (Tex.App.-Waco 2004, pet. filed) (citing Vela v. Rocha, 52 S.W.3d 398, 403 (Tex.App.-Corpus Christi 2001, no pet.)). And so, if an employee sued in his official capacity files a motion under section 101.106(f), and the plaintiff dismisses the employee and amends his petition to name the governmental unit, then the suit is considered as a suit against the governmental unit. Tex. Crv. Pkac. & Rem.Code § 101.106(f). However, if the employee makes no such motion, then the government is protected by the irrevocable bar of section 101.106(b). Tex. Crv. PRAC. & Rem. Code § 101.106(b). It is precisely because section 101.106(b) does not address the capacity of the employee, that subsection (b) applies to employees sued in their official capacity who fail to file a motion under section 101.106(f). Tex. Civ. PRAC. & Rem. Code § 101.106(b), (f).

Similarly, because section 101.106(b) omits “under this chapter” it also applies to employees sued in their individual capacities, as employees sued in this capacity are usually sued under the common law. See McGowen v. Huang, 120 S.W.3d 452, 459 (Tex.App.-Texarkana 2003, pet. denied). The governmental unit is protected under both situations. Therefore, construing section 101.106 in the “plain and common meaning of the statute’s words,” the absence of a reference to “under this chapter” or to the capacity under which the employee is sued is intentional. Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 223 (Tex.App.-Dallas 2005, no pet.) (quoting LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.1995)); Villasan, 166 S.W.3d at 762. Accordingly, we agree with WISD that under section 101.106(b) whether the Defendant Employees were sued in their official or individual capacities is irrelevant.

Same Subject Matter

WISD also argues that the lawsuit against WISD and the Defendant Employees involves the same subject matter, as required by the statute. Tex. Crv. PRAC. & Rem.Code § 101.106(b). WISD states that the subject matter of the lawsuit was the unlawful termination of the Appellees employment, and the malicious prosecution claim against the Defendant Employees is connected with the Appel-lees unlawful termination claim. WISD states that, but for the Defendant Employees actions which ultimately led to the termination of Appellees’ employment, there would be no cause of action against WISD. Thus, WISD argues that the actions and occurrences between Appellees, WISD, and the Defendant Employees are so inextricably intertwined that they cannot be separated. Therefore, WISD contends that Appellees’ claim against WISD is forever barred.

Again we look to previous interpretations of former section 101.106 for our analysis. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3305, (amended 2003) (current version at Tex. Crv. Prac. & Rem.Code § 101.106). Under the former statute, whether suits against the government and its employees were based on the same cause of action was irrelevant. Bossley, 968 S.W.2d at 343. The relevant inquiry was whether the two causes of action involved the same subject matter. Id.; Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex.1997); Beasley v. Clark, 986 S.W.2d 256, 257 (Tex.App.-Houston [1st Dist.] 1998, no pet.); McGowen, 120 S.W.3d at 459. In previous cases, “same subject matter” is defined as “arising out of the same actions, transactions, or occurrences.” Bossley, 968 S.W.2d at 343; Newman, 960 S.W.2d at 622. Other courts use the factors of res judicata as relevant in determining same subject matter. See McGowen, 120 S.W.3d at 459. Under the doctrine of res judicata, determining whether suits involve the same transaction are based on a consideration of “whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties’ expectations or business understanding or usage.” Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 386 (Tex.App.-Beaumont 2004, pet. denied) (quoting Restatement (second) of Judgments § 24(2)); McGowen, 120 S.W.3d at 459 (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992)).

Appellees argue that the suit against WISD and the Defendant Employees involves two different set of facts: those involving their unlawful termination and those involving their malicious prosecution. We agree.

The Defendant Employees reported Ap-pellees alleged theft to the police two months after Appellees’ employment had been terminated. WISD claims that the two causes of action are intertwined because the actions of the Defendant Employees led to the Appellees’ termination, and because the accusations against the Appellees were well known to those on the Board the day the Board rejected Appel-lees appeal. However, Appellees state that on the day their administrative appeal was denied, they were unaware that the Defendant Employees had accused them of wrongdoing, much less reported their suspicions to the police. Appellees’ administrative appeal was denied shortly before they were arrested. Also, the actual termination of their employment, the subject of their complaint against WISD, and the facts leading up to their termination, occurred nearly four months before they were arrested. The filing of a grievance claim by Appellees and the subsequent termination of their employment by WISD in alleged retaliation for filing the grievance are the actions that led to the filing of the unlawful termination claim. The alleged false accusations of criminal conduct made to the police and the subsequent arrest of Appellees, none of which occurred before or contributed to the termination of the Appellees’ employment four months prior, are the facts that led to the filing of the malicious prosecution claim.

WISD also argues that Appellees’ petition is proof that the two causes of action consist of the same subject matter because the lawsuit was brought against both WISD and the Defendant Employees and the Appellees in their petition seek to recover from “Defendants, jointly and severally” in their prayer for relief. Though both causes of action are brought in the same lawsuit, Appellees state that this was for the purpose of judicial economy. The facts for each cause of action were separated into different paragraphs in their petition and included in the separate paragraphs was a specific request for damages from each defendant.

We find that the facts giving rise to the different causes of action are sufficiently separated by time and place and do not arise out of the same transactions or occurrences so as to constitute different subject matters under section 101.106(b). See Bossley, 968 S.W.2d at 343; McGowen, 120 S.W.3d at 459. Therefore, 101.106(b) does not apply to WISD as a means by which it should be dismissed from Appellees’ lawsuit. The trial court did not err in denying WISD’s plea to the jurisdiction. Accordingly, we overrule WISD’s only issue.

Conclusion

Having overruled WISD’s only issue, we affirm the judgment of the trial court.

(Chief Justice GRAY dissents with a note: By a separate order issued November 23, 2005, the Appellant’s motion for rehearing is being denied by a majority of the justices who participated in the original decision of this appeal. But the motion for rehearing pointed out sufficient problems with the opinion originally issued on September 7, 2005, that the opinion and judgment of that date are being withdrawn and the majority’s new opinion and judgment dated November 23, 2005, are substituted for them. My dissenting opinion dated September 7, 2005, is not withdrawn but will be reissued on November 23, 2005. For a further discussion of the problems being created by the explosion of withdrawals and substituted opinions, see Kelly v. Games, No. 10-03-00369-CV, 2005 WL 3072838, 2005 Tex.App. LEXIS 9628 (Tex.App.-Waco Nov. 16, 2005). (GRAY, C.J., concurring and dissenting)).

TOM GRAY, Chief Justice,

dissenting.

It is probably the type niceties discussed at length in the majority opinion that caused the legislature to use the equivalent of a meat cleaver to try to prevent a plaintiff from suing everybody in sight when the statute was recently amended. The meat cleaver had only one prerequisite in this section; the bar to suit under section 101.106(b) applied to a “suit or recovery ... regarding the same subject matter_” Tex. Crv. PRAc. RemlCode Ann. § 101.106(b) (Vernon 2005) (emphasis added). The majority has neatly categorized the events leading up to the events as relating to the claim for wrongful termination brought against WISD and the claim for wrongful prosecution brought against the school district employees. If it could stop there, with a decision that the facts give rise to two claims that could have been asserted by the plaintiffs in two separate suits, we might be finished with our analysis.

But we are not finished. We are not finished for two reasons. The first, which I will not belabor, is the use of the term “suit” in section 101.106(b) as contradistin-guished from the term “claim” used elsewhere in the statute, and the second, is the unity of actual damages as pled by the plaintiffs.

The first is simple. The legislature used the broader term “suit” in section 101.106(b) than the term “claim” as used elsewhere in the statute, for example in section 101.106(c). The legislature must have meant something by the use of different terms.

Second, judicial economy not withstanding, I expect real and substantial problems for the plaintiffs in segregating the actual damages caused by the alleged wrongful termination claim from the damages for the malicious prosecution claim. A fact finder in a single suit is probably the only way to sort out the difference in damages, if any. This problem is made evident and persuasively argued by WISD by reference to the plaintiffs’ prayer for relief where the prayer is that plaintiffs recover “jointly and severally, them actual damages” and then goes on to seek punitive damages only against the individual defendants. Based on the pleading, the “recovery” sought must relate to the same actual damages for both “claims.” See Tex. Civ. PRAC. Rem.Code Ann. § 101.106(b) (Vernon 2005). How else could they be jointly and severally liable for any damages?

As currently pled, with the prayer for joint and several liability for damages, there can be little question that the actions are alleged to arise “out of the same transaction, occurrence, or series of transactions or occurrences.” See Tex.R. Civ. P. 40(a). But in this instance, I think the trial court recognized that this may be only a technical issue, overcome with a pleading amendment, to be followed up with appropriate segregation of damages by the evidence and with an instruction limiting the use of damage evidence for only the claim to which it applied. Thus, while I believe the plaintiffs defeated the trial court’s jurisdiction by the manner of their pleading, I believe it is a pleading defect that could be, and must be, remedied. Thus, the appropriate result is to reverse the trial court’s order denying the plea to the jurisdiction and remand the case to the trial court for further proceedings consistent with our opinion. See Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex.2002); Johnson v. Tims, No. 10-05-00006-CV, 2005 WL 1531336, 2005 Tex.App. LEXIS 5053 (Tex.App. — Waco June 29, 2005, no pet. h.). Because the majority does not, I respectfully dissent.