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The issue presented is whether an employee of a governmental unit may take an interlocutory appeal from an order denying his motion to dismiss based on section 101.106(e) of the Texas Civil Practice and Remedies Code. We hold that he can and reverse the judgment of the court of appeals. 319 S.W.3d 905 (Tex. App.–Dallas 2010).

Joel Graham sued Austin State Hospital, a governmental unit, and two of its employees, Dr. Vikar Nuzhath and Dr. Erik Lindfors (“the Doctors”), on health care liability claims. The Hospital moved to dismiss the claims against the Doctors under section 101.106(e) of the Texas Tort Claims Act, which states: “If a suit is filed under [the Act] 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.” TEX. CIV. PRAC. & REM. CODE § 101.106(e). The Doctors also moved to dismiss under section 101.106(a) and (e). Graham then nonsuited the Hospital, asserting that its motion to dismiss was thereby mooted. The Hospital and the Doctors objected, arguing that the non-suit could not be used to defeat its statutory right to the immediate dismissal of its employees, and, in support of their objections and motions, later filed an affidavit in which a Hospital assistant superintendent asserted that the Doctors were Hospital employees. The trial court denied the Doctors’ motions and did not rule on the Hospital’s.

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