Supreme Court of Texas.
FORT WORTH TRANSPORTATION AUTHORITY, McDonald Transit Associates, Inc., McDonald Transit, Inc., and Leshawn Vaughn, Petitioners,
Michele RODRIGUEZ and New Hampshire Insurance Company, Respondents
Argued November 8, 2017
OPINION DELIVERED: April 27, 2018
Rehearing Denied June 22, 2018
*833 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
Attorneys & Firms
Mark G. Creighton, Fort Worth, TX, for Fort Worth Transportation Authority, McDonald Transit Associates, Inc., McDonald Transit, Inc., and Leshawn Vaughn
J. Mark Sudderth, for Michele Rodriguez and New Hampshire Insurance Company
Janith Lewis-Bryant and John Scott Carlson, Dallas, TX, for Amicus Curiae Dallas Area Rapid Transit.
Justice Brown joined.
In this statutory-construction case, we must interpret the damages-cap and election-of-remedies provisions of the Texas Tort Claims Act (TTCA) with respect to independent contractors performing essential governmental functions. After a pedestrian was struck and killed by a public bus in Fort Worth, her daughter sued the Fort *834 Worth Transportation Authority (FWTA), its two independent contractors, and the bus driver under the TTCA. We must decide three issues: (1) whether the TTCA’s damages cap applies individually or cumulatively for independent contractors performing essential governmental functions; (2) whether an employee of an independent contractor performing essential governmental functions is protected by the TTCA’s election-of-remedies provision; and (3) whether the transit defendants should have been awarded attorney’s fees arising out of interpleader. We hold that the damages cap applies cumulatively when, as here, an independent contractor performed essential governmental functions of a transportation authority. We also hold that the TTCA’s election-of-remedies provision extends to cover an employee of an independent contractor performing essential governmental functions. Finally, we hold that the transit defendants are not entitled to attorney’s fees. Accordingly, we reverse the judgment of the court of appeals and reinstate the trial court’s judgment in favor of FWTA with respect to issues one and two. We affirm the court of appeals’ denial of attorney’s fees and remand of the case for a trial on the merits.
Judith Peterson was walking across a street in downtown Fort Worth when she was struck and killed by a public bus driven by Leshawn Vaughn. Vaughn was an employee of McDonald Transit, Inc. (MTI), a subsidiary of McDonald Transit Associates, Inc. (MTA). Both MTA and MTI are independent contractors that operate Fort Worth’s bus transportation system. Peterson’s daughter, Michele Rodriguez, brought a wrongful death suit against Vaughn, FWTA, MTA, and MTI (collectively, the “Transit Defendants”). Rodriguez pled a single count of negligence against all defendants collectively, asserting a variety of acts or omissions, including: “making an improper and unsafe turn,” “driving at an unsafe and excessive speed,” “negligently hiring ... Defendant Vaughn,” and “[f]ailing to establish and maintain safe and appropriate bus routes.” These allegations are not allocated among or attributed to particular defendants, and with the exception of those allegations that clearly refer to the actions of the bus driver, discerning which defendants are alleged to have committed which acts or omissions is difficult.
FWTA is a regional transportation authority under Texas Transportation Code chapter 452, and it provides public transportation services, including bus routes, to areas under its control. Id. § 452.056(d).
Under the contract, MTA agreed to furnish a Director of Transportation Services *835 of FWTA’s Operating Functions, who would be “responsible for the overall management and operation of all components of the FWTA’s Operating Functions.” MTI, a wholly owned subsidiary of MTA, agreed to carry out FWTA’s operating functions and “employ all necessary and appropriate personnel ... including drivers.” The contract also provided that MTI would “procure all other goods and services reasonably necessary and useful to manage and operate the FWTA’s public transportation system in accordance with the policies, procedures, budgets and other directives of the President of the FWTA”; that “[a]ll contractual obligations which are to be entered into or assumed by MTI personnel on behalf of the FWTA shall be in the name of the FWTA”; and that “[a]ll contractual obligations and related liability entered into on behalf of the FWTA in accordance with this paragraph shall become and remain valid obligations of FWTA.”
Rodriguez alleged in her pleadings that the Transit Defendants operated as a joint venture. Accordingly, she asserted that FWTA, MTA, and MTI were vicariously liable for Vaughn’s negligence, if proven, under respondeat superior. Specifically, her pleadings included the following:
3.06 Hereinafter in this Petition, all Defendants other than Vaughn may be collectively referred to as “The [Transit] Defendants.”
3.07 At all material times and in all material respects, The [Transit] Defendants owned, operated, managed, and/or controlled the bus transportation system operating in Fort Worth, Texas, commonly known as The T.
3.08 Upon current information and belief, The [Transit] Defendants were engaged in a joint enterprise or joint venture to operate and/or maintain such bus transportation system, and each had the actual right to control the business operations, policies, procedures, and activities of such system. Additionally and/or alternatively, they comprised and constituted a single business enterprise in such regard. Additionally and/or alternatively, they were managers, vice principals, agents, mere tools, instrumentalities, departments, and/or alter egos of each other or of one or another of them with regard to operation of such system. They are vicariously and/or jointly and/or severally liable for the conduct of one another in such regard.
3.09 Additionally and/or alternatively, at all material times, Defendant Vaughn was an agent, servant, and employee of MTA and/or MTI and was acting within the course and scope of her authority as such agent, servant and employee. Accordingly, MTA and MTI are liable to [Rodriguez] for her conduct under the doctrine of Respondeat Superior.
Rodriguez sought declaratory relief that (1) FWTA was liable for the conduct of MTA, MTI, and Vaughn; and (2) pursuant to the Transit Defendants’ contract, “whatever liability may be incurred by Vaughn—as an employee of [MTI] and/or [MTA]—constitutes part of the operating expenses of FWTA and shall be paid by FWTA, and that Vaughn is a third-party-beneficiary of such contract in such regard.”
As an authority under the Transportation Code, FWTA is considered a “governmental unit” for purposes of the TTCA. TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). However, the liability arising out of this waiver of immunity is “limited to money damages in a maximum amount of $100,000 for each person.” Id. § 101.023(b). Recognizing that a regional transportation authority might delegate some or all of the operation of its public transportation system to one or more independent contractors, the Legislature contemplated liability for such a situation:
A private operator who contracts with an authority under this chapter is not a public entity for purposes of any law of this state except that an independent contractor of the authority that ... performs a function of the authority ... is liable for damages only to the extent that the authority or entity would be liable if the authority or entity itself were performing the function ....
TEX. TRANSP. CODE § 452.056(d). Rodriguez seeks the statutory maximum of $100,000 from each entity separately—FWTA, MTA, and MTI—for a total of $300,000. The Transit Defendants counter that their liability is cumulatively limited to $100,000 by the TTCA’s damages cap.
The TTCA also contains an election-of-remedies provision that protects government employees: “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.” TEX. CIV. PRAC. & REM. CODE § 101.106(a). Rodriguez seeks to recover $5 million from Vaughn individually, arguing that she is not protected by this provision because she is an employee of an independent contractor (MTI), and not of a governmental unit (FWTA).
Rodriguez filed her claim against the Transit Defendants on July 11, 2012. At that time, a separate lawsuit brought by New Hampshire Insurance Company against FWTA and Vaughn arising out of the same incident was already on file. TEX. R. CIV. P. 43. In its interpleader petition, MTI stated that it would not deny liability for Rodriguez’s injuries.
Shortly thereafter, New Hampshire Insurance nonsuited its claim and the two suits were consolidated. This time, all of the Transit Defendants filed an amended interpleader petition, stating that though the claims were defensible, they would not raise a defense if the court determined that their total exposure was limited to $100,000. After consolidation, the Transit Defendants filed a motion for partial summary judgment seeking dismissal of all claims, or in the alternative, a declaration that the $100,000 tendered into the court’s registry was the maximum amount owed under the TTCA for all claims against all defendants. Rodriguez also filed a motion *837 for summary judgment, seeking a declaration that the damages cap applied to each defendant separately, and that the potential liability of Vaughn, as the employee of a private contractor, was not capped.
The trial court denied Rodriguez’s motion and granted summary judgment in favor of the Transit Defendants, ruling that FWTA, MTI, and MTA should be treated as a single governmental unit under the TTCA, limiting Rodriguez’s claim to a maximum recovery of $100,000. Further, the trial court dismissed Vaughn under the TTCA’s election-of-remedies provision and denied the Transit Defendants’ request for attorney’s fees. See Id. at 198. We granted the petition for review. 60 Tex. Sup. Ct. J. 1230 (June 19, 2017).
II. Standard of Review
We review the trial court’s summary judgment de novo. Provident Life, 128 S.W.3d at 215–16.
On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009).
III. TTCA’s Damages Cap
The parties ask us to interpret two separate provisions of the TTCA—TEX. TRANSP. CODE § 452.056(d).
The Transit Defendants argue that the plain language of these statutes does not allow the imposition of liability above $100,000. For the reasons explained below, we agree. If FWTA operated its bus transportation system and employed its bus drivers directly, this case would not be before us. FWTA’s liability would be limited *838 to $100,000 and Vaughn would be dismissed under the election-of-remedies provision. The fact that FWTA delegated its transportation-related governmental functions to independent contractors, as it is statutorily authorized to do, does not somehow expand the potential liability arising from those governmental functions. Rodriguez argues that the TTCA allows her to sue different entities for different causes of action arising from the same event, and each is liable to its own, respective $100,000 cap. However, this argument does not comport with the language of the TTCA.
A. Statutory Construction
In construing statutes, our primary objective is to give effect to the Legislature’s intent. TEX. GOV’T CODE § 311.023 (permitting courts to consider legislative history and other construction aids regardless of ambiguity).
We read statutes contextually to give effect to every word, clause, and sentence, Tex. State Bd. of Exam’rs of Marriage & Family Therapists, 511 S.W.3d at 35. We analyze the statutes at issue in this case no differently, paying close attention to each word the Legislature has chosen.
The plain language of Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518 S.W.3d 318, 326 (Tex. 2017). Therefore, our analysis seeks to harmonize the two statutes at issue in this case, giving effect to both within the context of the TTCA and reflecting legislative intent.
“Sovereign immunity protects the State from lawsuits for money damages.” TEX. CIV. PRAC. & REM. CODE § 101.023(b).
Policy justifications for immunity—and by extension, for limitations on waivers of immunity—revolve around protecting the public treasury. Id. (internal quotations marks omitted).
This Court has historically taken a function-based approach to governmental immunity—when the parameters of whether an entity is a “governmental unit” are unclear, we distinguish between an entity performing a governmental function and one performing a proprietary function, affording immunity to the former but not the latter. E.g., Turvey v. City of Houston, 602 S.W.2d 517, 519 (Tex. 1980) (noting that the TTCA expressly waived governmental immunity to the extent expressed in the statute but “preserved the claimant’s common law remedy to seek unlimited damages for the negligent acts of a municipality while engaged in a proprietary function”).
Furthermore, while granting immunity has traditionally been the province of the judiciary, the Legislature has the power to change the common law classifications of certain functions as proprietary or governmental, even when doing so has the effect of extending immunity from suits that could have been maintained at common law. TEX. TRANSP. CODE § 452.052(c) (“An authority is a governmental unit under Chapter 101, Civil Practice and Remedies Code, and the operations of the authority are not proprietary functions for any purpose including the application of Chapter 101, Civil Practice and Remedies Code.”).
C. Section 101.023
In Texas, governmental immunity has two components: immunity from liability, which bars enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit against the entity altogether. section 101.023 in favor of limiting liability under the damages cap.
Of course, these principles alone do not resolve the issue at hand. Rodriguez argues that applying the $100,000 damages cap to separate defendants individually does not expand the liability of a regional transportation authority, because the authority’s liability remains capped at $100,000 regardless of the number of defendants sued. We turn next to Transportation Code section 452.056 to analyze the two statutes in conjunction with one another.
D. Section 452.056(d)
The 1987 amendments to the TTCA reclassified public transportation systems, which were previously proprietary functions, as governmental functions, thereby placing them within the bounds of governmental immunity, but also subjecting them to the limited waiver of immunity in TTCA TEX. CIV. PRAC. & REM. CODE § 101.023.
The Transportation Code explicitly allows a transportation authority to contract with private operators for functions involved in operation of its public transportation system. TEX. TRANSP. CODE § 452.056(a)(3). It also addresses the liability consequences for the private operator:
A private operator who contracts with an authority under this chapter is not a public entity for purposes of any law of this state except that an independent contractor of the authority that ... performs a function of the authority ... is liable for damages only to the extent that the authority or entity would be liable if the authority or entity itself were performing the function.
Id. section 452.056(d) puts an independent contractor in the shoes of the transportation authority such that the $100,000 cap applies cumulatively to all entities performing functions involved in operating a public transportation system, or makes each entity separately liable for up to $100,000.
As a preliminary matter, we note that the Legislature has not purported to grant immunity or extend it to independent contractors under chapter 452. Indeed, neither “governmental status” nor “immunity” appears in the statute. See TEX. TRANSP. CODE § 452.056(d) (“ ... an independent contractor of the authority that ... performs a function of the authority ... is liable for damages only to the extent that the authority or entity would be liable ....”); see also Liability, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The quality, state, or condition of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.”).
With respect to liability, the Legislature has created a limited exception to the general rule that an independent contractor is not a public entity for any purpose. See TEX. TRANSP. CODE § 452.056(d) (“ ... except that an independent contractor of the authority that ... performs a function of the authority ... is liable for damages ....”) (emphasis added). Thus, the Legislature has instructed that, for the purpose of liability, an independent contractor performing the function of an authority under this chapter should be treated as if it were the governmental unit performing that function.
Our construction is consistent with our recent decision in Id.
We address that question now, and we hold that section 452.056’s limit on liability.
While the statute does use the singular “a private operator” performing “a function,” this language designates who is entitled to the statute’s protection. Id. § 452.056(d). The subsequent language then describes what protection those private contractors are afforded. The plain language of the statute defines the bounds of the limit on liability—an independent contractor that is subject to section 452.056(d) is liable for damages “only to the extent that the authority or entity would be liable if the authority or entity itself were performing the function.” Id. Therefore, we consider the extent to which FWTA would be liable if it were performing the functions that MTA and MTI performed.
FWTA’s liability is limited by section 452.056(d)’s liability limits apply when independent contractors act jointly in operating a public transportation system. Here, if FWTA had itself performed each function involved in the operation of the bus transportation system, its liability would still be limited to a maximum of $100,000.4 Thus, “the extent that [FWTA] would be liable if [FWTA] itself were performing the function” is $100,000, regardless of *844 whether FWTA performed a discrete part of the operation of its bus transportation system (e.g., employing the necessary personnel) or all functions necessary for such operation.
The inclusion of the word “only” reinforces our understanding of how the Legislature intended to limit the liability of independent contractors under Chapter 452 when they are performing functions of the government. See U.S. v. Diaz–Gomez, 680 F.3d 477, 480 (5th Cir. 2012).
Although we always presume that the Legislature chooses each word intentionally, TEX. TRANSP. CODE § 452.056(d).
We interpret statutes according to the language the Legislature used, absent a context indicating a different meaning and unless the plain meaning yields absurd or nonsensiscal results. Brown & Gay Eng’g, 461 S.W.3d at 129–31 (Hecht, C.J., concurring) (distinguishing between an independent contractor acting as the government and one acting for the government: “An independent contractor may act as the government, in effect becoming the government for limited purposes ....”).
Rodriguez argues that while MTA and MTI are each entitled to limited liability, the statute allows a plaintiff to sue different entities for different causes of action arising from the same event and collect damages from each entity separately, up to their respective cap.7 We disagree. This construction would effectively multiply the TTCA’s statutory damages cap by the number of independent contractors performing a single governmental function, even when, as here, the independent contractors are alleged to have engaged in a joint enterprise with the authority that constitutes a single business enterprise. Such a result would be inconsistent with the statute’s plain language, which limits liability to what the transportation authority would incur—a maximum of $100,000 for all functions involved in operating a public transportation system. Moreover, it cannot be that the Legislature’s intent in enacting the TTCA—which operates through the relevant provisions to limit the government’s liability and to encourage and facilitate a transportation authority’s use of independent contractors—was to allow an authority’s use of independent contractors to result in a significant increase in the amount of the TTCA’s damages cap.
We hold that the liability of any number of independent contractors performing essential governmental functions for an authority under chapter 452 is limited to a single damages cap under the TTCA. Thus, FWTA, MTA, and MTI are cumulatively liable up to a single $100,000 damages cap.8
IV. Election of Remedies
Rodriguez seeks to collect $5 million in damages from the bus driver, Vaughn, arguing that as an employee of a private contractor, she is not protected by the TTCA’s election-of-remedies provision. We disagree. As discussed above, we concluded that MTA and MTI can be liable “only to the extent that [FWTA] would be liable” if FWTA itself operated its own bus transportation system. See *846 TEX. TRANSP. CODE § 452.056(d). Therefore, we consider FWTA’s potential liability with respect to an employee acting within the scope of her employment.
Under the TTCA, a governmental unit is liable for injuries caused by “the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the [injury] arises from the operation or use of a motor-driven vehicle ... ; and (B) the employee would be personally liable to the claimant according to Texas law.” § 101.106(a).
This provision was incorporated into the TTCA to prevent plaintiffs from circumventing the TTCA’s damages cap by suing government employees, who were, at that time, not protected. Id. at 657.
Notably, Rodriguez has not alleged that Vaughn acted independently and is thus solely liable. Instead, she has asserted that Vaughn acted within the scope of her employment such that the Transit Defendants collectively are vicariously liable for her alleged negligence, if proven, under the doctrine of respondeat superior. Under our law, the doctrine of respondeat superior makes a principal liable for the conduct of its employee or agent. Marange v. Marshall, 402 S.W.2d 236, 239 (Tex. Civ. App.—Corpus Christi. 1966) ). And whether a governmental unit’s liability is direct or indirect, it is still “liability” for the purpose of the TTCA, and it is therefore limited both by the TTCA’s damages cap and by the election-of-remedies provision.
TEX. TRANSP. CODE § 452.056(d). In her pleadings, Rodriguez alleged that MTA and MTI acted jointly as the government in performing an essential governmental function—the operation of Fort Worth’s bus transportation system. MTA’s and MTI’s liability is thus limited under the TTCA to the extent that FWTA’s liability would be if FWTA had performed the same function. See id. FWTA’s vicarious liability for the conduct of its employee would be limited by the election-of-remedies provision. The same principles therefore extend to the vicarious liability of MTA and MTI with respect to Vaughn—an employee of an entity acting as the government, when she acted within the scope of her employment.
This is not the first time we have, for the purpose of the TTCA, treated an employee of a private entity as an employee of the government when that employee was performing a governmental function. See, e.g., Id.
The same reasoning applies equally in this case. We have already explained that the Legislature intended to encourage and facilitate transportation authorities’ contracting with independent contractors for the operation of all or part of their public transportation systems, and that the use of such independent contractors does not change the liability exposure for the performance of those services. See Garcia, 253 S.W.3d at 656. It is clear from pleadings that Rodriguez did not sue Vaughn in her individual capacity and had no intention of collecting any judgment from Vaughn herself. Instead, Rodriguez pled that (1) MTA and MTI were vicariously liable for Vaughn’s conduct under respondeat superior; and (2) FWTA, MTA, and MTI were vicariously and jointly liable *848 for the conduct of one another. She specifically requested declaratory relief that FWTA was obligated to pay the costs of any liability incurred by Vaughn. This is precisely the type of legal maneuvering that the election-of-remedies provision was enacted to prevent.
The extent of FWTA’s liability is limited by the damages-cap provision and by the election-of-remedies provision. Under TEX. TRANSP. CODE § 452.056. Thus, we hold that an employee of an independent contractor performing an essential governmental function under Transportation Code chapter 452, who is acting within the scope of her employment, is afforded protection under the TTCA’s election-of-remedies provision as if she were an employee of the government.9
Finally, we address Rodriguez’s argument that Vaughn was not acting within the scope of her employment because she was driving negligently. The purpose of TTCA Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 565 (Tex. 2016) (“[W]hen an employee acts negligently within the course and scope of employment, respondeat superior permits a person injured by that action to sue the employee’s employer directly to recover all damages caused by the employee’s negligence.”).
The scope-of-employment analysis, therefore, remains fundamentally objective: Is there a connection between the employee’s job duties and the alleged tortious conduct? The answer may be yes even if the employee performs negligently or is motivated by ulterior motives or personal animus so long as the conduct itself was pursuant to her job responsibilities.
*849 section 101.106 for an employee acting within the scope of her employment. As it stands, Vaughn’s negligence has not been evaluated by a trier of fact; however, the record is clear that she was acting within the scope of her employment because she was driving the bus on its regular route when the accident occurred.
Certainly, there might be a different result if Vaughn had been acting outside the scope of her employment (for example, by driving a route other than what was prescribed). E.g., Fink v. Anderson, 477 S.W.3d 460, 467 n.3 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (outlining this Court’s holdings on whether an employer can escape liability under respondeat superior by arguing that intentional torts do not fall within the scope of employment). However, neither scenario is at issue here, and we need not decide them in this case. Vaughn’s job was to drive the bus along a prescribed route, and she acted within the scope of her employment by doing exactly that. Therefore, we hold that she is entitled to the protection of the TTCA’s election-of-remedies provision.
V. Attorney’s Fees
Rodriguez and New Hampshire Insurance both argue that the Transit Defendants waived the issue of attorney’s fees by not preserving it in their petition for review. We disagree. A petition for review must state all issues or points presented for review, and issues not presented in the petition for review are waived. TEX. R. APP. P. 55.2(f).
The Transit Defendants raised the issue of attorney’s fees in their petition for review briefly in the prayer:
Petitioners ask this Court to reverse the judgment of the court of appeals and render an award of reasonable and necessary attorneys fees which have been established as a matter of law or ... to reverse the judgment of the court of appeals and remand this case to the trial court on the sole issue of Petitioners’ attorneys fees.
“We liberally construe issues presented to obtain a just, fair, and equitable adjudication of the rights of the litigants.” Id. Here too, although the issue was presented only briefly in the petition for review, it was nonetheless presented and is therefore properly before us.
Having determined that the issue was not waived, we turn to the merits *850 of the Transit Defendants’ request for attorney’s fees. The Transit Defendants argue that they are entitled to reasonable attorney’s fees on the basis of their interpleader action. We review a trial court’s award of attorney’s fees for an abuse of discretion. Broesche v. Jacobson, 218 S.W.3d 267, 277 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
Texas law recognizes that disinterested stakeholders should be afforded a method by which they are able to proceed when they are subjected to conflicting claims. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 523 (Tex. App.—Fort Worth 2009, no pet.).
In Rodriguez’s motion for partial summary judgment, she asserted that there was no evidence that MTI had unconditionally tendered funds into the registry of the court, that it was exposed to double or multiple liability, or that it was an innocent, disinterested stakeholder. The Transit Defendants alleged that the interpleader was filed with the belief that the statutory limit under the TTCA applied cumulatively, such that $100,000 was the maximum liability for all of the defendants combined. Thus, the two separate lawsuits filed by New Hampshire Insurance and Rodriguez potentially subjected MTI to double liability. The Transit Defendants explain the year-long gap between the filing of Rodriguez’s suit and the filing of the interpleader by pointing to continued settlement efforts with New Hampshire Insurance and Rodriguez.
The fact that the two cases were consolidated and New Hampshire Insurance ultimately nonsuited its claims is irrelevant to our determination of whether the interpleader was proper. On this question, we are persuaded by federal cases holding that interpleader jurisdiction is determined at the time the interpleader complaint is filed. See Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 799 (7th Cir. 1980) (holding that, in a statutory interpleader action, “[i]f jurisdiction exists at the outset of a suit, subsequent events will not divest the court of jurisdiction”). Thus, we limit our inquiry to the initial interpleader petition and the amended petition.
A proper interpleader action requires that the interpleading party has *851 unconditionally tendered the fund or property at issue into the court’s registry. S.W.3d at 197. We hold that, in this regard, the Transit Defendants failed to satisfy the required interpleader element of unconditional tender.
Moreover, even if the Transit Defendants’ tender had been unconditional, we have held that attorney’s fees in an interpleader are available only to an innocent, disinterested stakeholder. Wolf v. Horton, 322 So.2d 71, 73 (Fla. Dist. Ct. App. 1975) (“In order to be entitled to such an award, a plaintiff must prove his total disinterest in the stake he holds other than that of bringing it into court so that conflicting claims thereto can be judicially determined.”). Rodriguez argues that the Transit Defendants are not innocent, disinterested stakeholders because (1) MTI voluntarily subjected itself to double or multiple liability by intervening in New Hampshire Insurance’s suit, and (2) the Transit Defendants were the negligent parties that caused the damages sought by Rodriguez and New Hampshire Insurance.
“When the interpleading party is responsible for the conflicting claims to the funds or property, that party is not entitled to attorney’s fees incurred in interpleading the claimants.” Rule 43.
However, we agree with Rodriguez’s argument that the Transit Defendants—as the parties who are alleged to *852 have negligently caused the damage—are not innocent, disinterested stakeholders. Although this Court has not defined “innocent, disinterested stakeholder,” Black’s Law Dictionary defines each of these terms. See Innocent, BLACK’S LAW DICTIONARY (10th ed. 2014) (“free from legal fault”); Disinterested, id. (“not having a pecuniary interest in the matter at hand”); Stakeholder, id. (“[a] disinterested third party who holds money or property, the right to which is disputed between two or more other parties.”). “Under the unambiguous meaning of term ‘disinterested stakeholder,’ a party who asserts a claim to the interpleaded funds is not a disinterested stakeholder.” FinServ Cas. Corp. v. Transamerica Life Ins. Co., 523 S.W.3d 129, 141 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). The Transit Defendants’ assertion that the claims against them were defensible and that they would put up a defense if their interpleader terms were not accepted necessarily defeats their proposed status as a disinterested stakeholder.10
Even absent the defensibility assertion, the Transit Defendants’ position as the alleged tortfeasors prevents them from being a “disinterested stakeholder.” Texas courts have held, for example, that interpleader is proper to protect an insurance company facing competing claims over benefits. See, e.g., Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26 (Tex. 1998) ). But we find no precedent to support extending the protection of interpleader—and the accompanying attorney’s fees—to an alleged tortfeasor/defendant. Moreover, the allowance of attorney’s fees for an alleged tortfeasor/defendant attempting to interplead the extent of his liability is adverse to public policy. Counsel for New Hampshire Insurance offered a simplified explanation during the hearing on attorney’s fees:
[It’s] the same thing as if I’m driving down the street on the way home today and I hit a car with two people in it and I injure the driver and I injure the passenger. And they turn around to me and they say [“]We’re both going to sue you for money.[”] I’ve only got [ ] $1,000. I can’t give you more than [$]1,000. That’s all I have, and I have no insurance. Okay. [“]Well,[”] driver says, [“]I want $1,000[”]; passenger says [“]I want $1,000.[”] I’m like, [“]conflicting claims. I’m going to interplead this to the court. Judge, I’m interpleading it. I’m an attorney. It costs me [ ] $1,000 to do that, so I’ll take the $1,000 back. Sorry, guys, you get nothing.[”]
Interpleader is not a vehicle to allow an interested party—an alleged tortfeasor/defendant—to escape the burdens of litigation. We therefore affirm the part of the court of appeals’ judgment that the Transit Defendants are not entitled to attorney’s fees, but on different grounds.11 Moreover, *853 because the interpleader was improper, the interpleaded funds should be returned to the party that deposited them if they remain in the court’s registry, and any judgment rendered as a result of the proceedings on remand will be separate and distinct from those funds. Because the interpleader was improper and the merits of Rodriguez’s negligence claim have not yet been tried, we affirm the court of appeals’ remand to the trial court for further proceedings, but consistent with this opinion.
We hold that the TTCA’s damages cap applies cumulatively when independent contractors perform essential governmental functions for a transportation authority under Transportation Code chapter 452. See TEX. CIV. PRAC. & REM. CODE § 101.106. Finally, we hold that the Transit Defendants’ interpleader was improper. They were not innocent, disinterested stakeholders in the litigation, and therefore are not entitled to attorney’s fees based on their attempted interpleader. For the reasons expressed above, we reverse the judgment of the court of appeals in part and reinstate the judgment of the trial court as to the damages-cap and election-of-remedies issues. We affirm the court of appeals’ denial of attorney’s fees but on different grounds, and we affirm the remand to the trial court for further proceedings, but consistent with this Court’s opinion.
Justice Boyd joined.
Justice Blacklock did not participate in the decision.
JOHNSON, joined by JUSTICE BOYD, dissenting.
Assuming McDonald Transit Associates, Inc. (MTA) and McDonald Transit, Inc. (MTI) are governmental entities for purposes of liability as the Court says they are, in my view, Rodriguez is correct that under the Texas Tort Claims Act (1) her damages are not cumulative as to Fort Worth Transportation Authority (FWTA), MTA, and MTI, so her potential recovery against all three is not limited to $100,000; and (2) her suit against Vaughn is not *854 barred. I respectfully dissent from the Court’s conclusions otherwise and its judgment based on those erroneous conclusions.
I. The Statutes
Under the Texas Tort Claims Act (TTCA), the Legislature has, in part, waived a governmental unit’s immunity as to injuries or death arising from the operation or use of a motor-driven vehicle. § 101.106(a).
The Transportation Code purports to limit the liability of certain private operators who contract with and perform functions of regional transportation authorities:
A private operator who contracts with an authority under this chapter is not a public entity for purposes of any law of this state except that an independent contractor ... that ... performs a function of the authority ... is liable for damages only to the extent that the authority or entity would be liable if the authority or entity itself were performing the function ....
TEX. TRANSP. CODE § 452.056(d) (emphasis added).
A. The Entities
I agree with the Court that by enacting section 452.056 limits her potential recovery from the three entities involved—FWTA, MTA, and MTI—to a cumulative total of $100,000. The Court concludes otherwise. It says that because of the statute, “the liability of independent contractors performing essential governmental functions is limited to a single damages cap under the TTCA.” Ante at 845. However, the statutory text does not support that conclusion.
The Court looks to the functions performed by MTA and MTI and concludes that they acted jointly in operating the public transportation system. The Court then concludes that the damages cap applies cumulatively because FWTA’s liability would be limited to $100,000 if it had performed all of the functions necessary to operate the transportation system, including those performed by MTA, MTI, and their employees. And while the Court may be correct regarding the extent of FWTA’s liability if it itself had performed all the activities relevant to Rodriguez’s claim, TEX. TRANSP. CODE § 452.056(d) (emphasis added). MTA is an independent contractor performing functions of FWTA. So is MTI. Applying the statute to each as “an independent contractor” yields the result that each is liable for damages to the extent FWTA would be liable had it performed “the function.” Nothing in the statute provides *855 that if multiple private operators have contracted with an authority, then either their functions must be considered to determine whether those functions are joint or the total of their liabilities is in any way combined.
The Court concludes that “the Legislature has instructed that, for the purpose of liability, an independent contractor performing the function of an authority ... should be treated as if it were the governmental unit performing that function.” Ante at 846. Contrary to the Court’s statement, though, nothing in the language of section 452.056(d) either explicitly or implicitly “instructs” that such an independent contractor should be treated as a governmental entity.
In construing statutes, we strive to give effect to the Legislature’s intent, looking for that intent first and foremost in the plain language of the statute. TEX. TRANSP. CODE § 452.056(d) (emphasis added).
The Court continues by concluding that applying the TTCA damages cap to each individual contractor would essentially multiply the cap and run counter to the Legislature’s intent to limit the government’s liability and encourage the use of independent contractors. Ante at 845. But as explained above, the Legislature explicitly chose not to treat private operators as governmental entities. TEX. TRANSP. CODE § 452.056(d). And limiting the liability of each individual contractor to $100,000, the amount for which FWTA could be liable under the TTCA, will still result in limited liability for FWTA. Moreover, there is nothing in this record hinting that limiting the liability of independent contractors to $100,000 each will discourage contractors from bidding on government contracts or discourage governmental entities from using contractors when appropriate. To the contrary, experience and common sense instruct otherwise. There is no shortage of independent contractors willing to bid on and perform government contracts.
In Id. at 124.
*856 In this case, we should follow the principles we expressed in Brown & Gay Engineering, 461 S.W.3d at 122. But where the liability of a governmental entity such as FWTA is limited regarding injuries caused by independent contractors such as MTI and MTA, both the purpose underlying governmental immunity—protection of the public fisc—and the purpose underlying the tort system—requiring wrongdoers to compensate those they have injured—are fulfilled. Moreover, private entities assume the risks of defending against, and potential liability for, tort claims on a daily basis. That is so whether they are performing governmental functions under contracts with the government or performing nongovernmental functions under contracts with private parties: it is part of doing business. Indeed, those risks are part of every nongovernmental entity’s daily existence.
B. The Bus Driver Employee
The Court next concludes that “for the purpose of liability, an independent contractor performing essential governmental functions under chapter 452 of the Transportation Code shall be treated as the government; therefore, the employees of such an independent contractor are to be treated as employees of the government for purposes of liability.” Ante at 847. Of course, the TTCA would not apply to Leshawn Vaughn and would not even be part of the discussion if she were not employed by a governmental unit. And as noted above, I disagree with the Court that MTA and MTI either are, or should be treated as, governmental units. But, even given the Court’s mistaken conclusion regarding their status and treatment, the Court errs in its analysis regarding whether the TTCA’s election of remedies provision applies to Vaughn.
The TTCA provides that “[t]he 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.” TEX. CIV. PRAC. & REM. CODE § 101.001(2).
In disregarding the plain statutory language as to Vaughn, the Court relies on Klein supports the Court’s conclusion that Rodriguez’s claim is barred.
This appeal does not present the question of constitutionality of TEX. CONST. art. III, § 66. The effect of that provision’s adoption and its language is an important issue that will at some point have to be addressed.
I would affirm the judgment of the court of appeals holding that (1) Rodriguez’s claim is not limited to a single cumulative total recovery of $100,000 from defendants FWTA, MTA, and MTI; and (2) Rodriguez’s claim as to Vaughn is neither subject to dismissal under, nor limited in amount by, the TTCA.
The original damages-cap language read, “Liability hereunder shall be limited to $100,000 per person ....” TEX. CIV. PRAC. & REM. CODE § 101.023(b).
We do not answer the broader question of whether the Legislature in fact has authority to confer (as opposed to waive) immunity. See LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 78 n. 44 (Tex. 2011) (reserving judgment on that question). Here, the Legislature did not purport to do so.
In this way, TEX. CONST. art. III, § 66 (“[T]he legislature by statute may determine the limit of liability for all damages and losses, however characterized, other than economic damages, of a provider of medical or health care with respect to treatment, lack of treatment, or other claimed departure from an accepted standard of medical or health care.”).
To provide a concrete example: If FWTA handled all functions involved in operating the Fort Worth bus transportation system—including route design, scheduling, hiring and supervision of drivers, bus maintenance, accounting and budgeting, marketing, public relations, etc.—its liability would be limited to $100,000. If FWTA performed only one function—route design, for example—and outsourced the rest, its liability would still be limited to $100,000. Thus, FWTA’s liability is collective as to all functions. The liability limit for independent contractors is likewise collective because damages are capped at the amount FWTA would incur, and under section 101.023, FWTA’s liability for any number of functions cannot exceed $100,000.
The bill that was adopted read, in relevant part: “If an independent contractor of the authority is performing a function of the authority, the contractor is liable for damages to the extent that the authority would be liable if the authority itself were performing the function.” H.B. 1453, 70th Leg., R.S. (1987). The rejected version included “only”: “Insofar as any independent contractor of the authority is performing any function of the authority, such contractor shall be liable for damages only to the extent the authority would be liable were the authority itself performing such action.” H.B. 2400, 70th Leg., R.S. (1987) (emphasis added).
Of course, our general rule is that extrinsic aids, including legislative history, are inappropriate “to construe” an unambiguous statute. E.g., id. at 436–48 (Jefferson, C.J., concurring) (observing that the court’s use of legislative history did not depart from the general rule: “When used in this contextual manner, there is little reason to think legislative history inappropriate for citation.”). Here too, the legislative history of the statute offers some context for our understanding of the Legislature’s intentional use of “only.”
Both parties support their proposed construction of the relevant statutes with Id. The facts of that case implicate multiple government units, which are not at issue in this case. Our holding in this case limits the application of the TTCA damages cap to independent contractors performing essential government functions.
Of course, the cumulative application of the damages cap requires the defendants to sort out their respective shares of liability and damages; thus it is akin to joint and several liability. Cf. Am. Star Energy & Minerals Corp. v. Stowers, 457 S.W.3d 427, 432 (Tex. 2015) (describing joint and several liability in the partnership context).
Rodriguez argues that this reasoning is inconsistent with Castro to the extent that it is contrary to our opinion here.
Because the Transit Defendants are not disinterested stakeholders, we need not decide here what “innocent” means in this context.
The court of appeals held that the Transit Defendants did not provide sufficient evidence of the legal work they had done to support their requested attorney’s fees under the lodestar method. 546Id. We doubt that “I assume so” amounts to a request. However, because our conclusion that the Transit Defendants are not disinterested stakeholders is dispositive on the issue of attorney’s fees, we do not reach this question. Nor do we reach the question of whether the Transit Defendants’ evidence, which did not include billing records, was sufficient to support their requested fees.