Sonia Janeth Espinoza v. Texas Tech University

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00332-CV

SONIA JANETH ESPINOZA, APPELLANT

V.

TEXAS TECH UNIVERSITY, APPELLEE

On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. DC-2023-CV-1507, Honorable John C. Grace, Presiding

July 21, 2025
CONCURRING OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

I concur in the opinion of Justice Yarbrough but write separately to clarify a matter.

Texas Tech University argues that only complying with the terms of § 101.106(f) of the

Civil Practice and Remedies Code permits a plaintiff to name the governmental entity as

the appropriate defendant after the statute of limitations expires. Reading the very case

it cites to support the proposition, i.e., University of Texas Health Science Center at San

Antonio v. Bailey, 332 S.W.3d 395, 401–02 (Tex. 2011), reveals the error within the

University’s position.
For purposes of limitations, a suit against the employee in that employee’s official

capacity is a suit against the governmental employer. Indeed, as noted in Bailey, the

governmental employer is actually the “real party in interest.” In quoting Texas A & M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007), the Bailey court said “[a] suit

against a state official in his official capacity ‘is not a suit against the official personally,

for the real party in interest is the entity.’ Such a suit actually seeks to impose liability

against the governmental unit rather than on the individual specifically named and ‘is, in

all respects other than name, . . . a suit against the entity.’” Bailey, 332 S.W.3d at 401.

So, continued the Bailey court, “[w]hen the Center was substituted as the defendant in

Sanders’ place, there was no change in the real party in interest.” Id. at 402.

“Consequently, the Center cannot prevail on its defense of limitations.” Id. And, this was

so despite the Bailey plaintiffs amending their pleading to add the Center long after

limitation expired. Notably absent from the foregoing is any mention by the Supreme

Court that § 101.106(f) of the Texas Civil Practice and Remedies Code somehow tolls

limitations. One reading the opinion will find nowhere within it reference to tolling of

limitations. Rather, the Supreme Court relied solely on the identity of the governmental

entity being the “‘real party in interest’” or the actual party sued “‘in all respects other than

name’” as reason for rejecting the claim of limitations. So, the University’s contention that

Bailey construes the statute as a 30-day tolling provision lacks foundation.

Rather, Bailey lends itself to only one reasonable interpretation, at least when it

comes to the effect of § 101.106(f) and limitations. When the plaintiff sues a governmental

employee in his or her official capacity, “‘the suit is, for all practical purposes, against the

[governmental entity],’” Bailey, 332 S.W.3d at 401 (quoting City of El Paso v. Heinrich,

2
284 S.W.3d 366, 380 (Tex. 2009)), when calculating limitations. It matters not whether

the plaintiff amended his complaint to add the governmental entity within 30 days of the

date the employee invoked § 101.106(f).

Brian Quinn
Chief Justice

3