Memorandum Opinion filed January 5, 2012.




                                              In The

                        Fourteenth Court of Appeals

                                     NO. 14-11-00087-CV

                              CITY OF HOUSTON, Appellant

                                                V.

                         LUIS CRESPO AMAZQUITA, Appellee

                         On Appeal from the 281st District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2010-39139



                           MEMORANDUM OPINION

       In this interlocutory appeal, the City of Houston appeals from the trial court’s
order denying its plea to the jurisdiction on the negligence claims of appellee, Luis
Crespo Amazquita.1 We affirm.

                                         BACKGROUND

       Appellee simultaneously sued the City, the Houston Police Department, and
employee, Ryan Nolen, Jr., alleging that Nolen, a Houston police officer, was driving a
       1
          See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2008) (permitting interlocutory
appeals from a court order that grants or denies a plea to the jurisdiction by a governmental unit).
vehicle owned by the City when he negligently ran a stop sign and struck appellee’s van.
Subsequently, appellee filed a First Amended Petition dropping his claims against the
Houston Police Department and Nolen from the suit. The City later filed a plea to the
jurisdiction, contending that appellee’s claims against it should be dismissed pursuant to
section 101.106(b) of the election-of-remedies provision. See id. § 101.106(b). The trial
court denied the City’s plea to the jurisdiction and this interlocutory appeal followed.

                                  STANDARD OF REVIEW

       Governmental immunity from suit defeats a trial court’s subject matter jurisdiction
and is properly asserted in a plea to the jurisdiction. Gatesco, Inc. Ltd. v. City of
Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). We review the trial court’s
ruling on a plea to the jurisdiction under a de novo standard. City of Dallas v. Carbjal,
324 S.W.3d 537, 538 (Tex. 2010) (per curiam); Miranda, 133 S.W.3d at 228.

                                         ANALYSIS

       The City asserts the trial court erred by denying its plea to the jurisdiction.
Specifically, the City argues it is entitled to the dismissal of appellee’s claims against it
pursuant to section 101.106(b) because appellee made an irrevocable election to sue its
employee, thus barring all claims against the City.

       Section 101.106(e) provides:

       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.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e). If the governmental unit files a
motion to dismiss the claims against its employee under section 101.106(e), the trial court
must grant the motion and dismiss the claims against the employee from the suit.
Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005,
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pet. denied). Appellee dismissed the claims against the City’s employee when appellee
amended his petition.

       The City further sought the dismissal of appellee’s claims against itself pursuant to
section 101.106(b), which provides:

       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.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(b).

       In its sole issue, the City argues that the governmental unit has immunity from suit
under subsection (b) when a plaintiff files suit simultaneously against the governmental
unit and its employee regarding the same subject matter. Specifically, the City relies on
Mission Consolidated Independent School District v. Garcia, which states that ―to the
extent subsection (b) applies, it bars any suit against the governmental unit regarding the
same subject matter, not just suits for which the Tort Claims Act waives immunity or
those that allege common-law claims.‖ 253 S.W.3d 653, 659 (Tex. 2008). However, this
court recently rejected these identical arguments in cases involving the simultaneous
filing of suit against the City and its employee. See Amadi v. City of Houston, No. 14-10-
01216-CV, — S.W.3d —, 2011 WL 5099184, at *8 (Tex. App.—Houston [14th Dist.]
Oct. 27, 2011, no pet. h.) (op. on reh’g en banc); see also City of Houston v. Rodriguez,
No. 14-11-00136-CV, — S.W.3d —, 2011 WL 5244366, at *2–3 (Tex. App.—Houston
[14th Dist.] Nov. 3, 2011, no pet. h.) (op. on reh’g).

       Subsection (b) applies to bar a plaintiff’s recovery against the governmental unit
only when the governmental unit has not consented to suit. Amadi, 2011 WL 5099184, at
*4. Here, as in Amadi and Rodriguez, the City consented to suit based on the alleged
negligent use or operation of a motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021 (West 2011) (providing for a waiver of immunity for property damage
and personal injuries resulting from the negligent operation or use of a motor-driven
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vehicle or motor-driven equipment); see also Rodriguez, 2011 WL 5244366, at *3;
Amadi, 2011 WL 5099184, at *4. Moreover, Garcia is distinguishable because, unlike in
this case, the governmental unit had not waived its immunity to suit for the plaintiffs’ tort
claims. See Amadi, 2011 WL 5099184, at *5.

       Therefore, under the plain language of subsection (b), the simultaneous filing of
suit against the City and Nolen does not bar appellee’s suit against the City because the
City has consented to suit in this case. See Amadi, 2011 WL 5099184, at *8; see also
Rodriguez, 2011 WL 5244366, at *3 (applying Amadi and holding that subsection (b) did
not bar the plaintiff’s claims against the City because the City’s immunity relative to the
claims was waived under the Texas Tort Claims Act). Because the City was not entitled
to dismissal pursuant to section 101.106(b), we overrule its sole issue and affirm the trial
court’s judgment.

                                          PER CURIAM

Panel consists of Justices Frost, Seymore, and Jamison.




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