

Opinion issued October 7, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00046-CV
———————————
City of Houston, Appellant
V.
Gloria Esparza, Appellee

 

 
On Appeal from the 55th District Court
Harris County, Texas

Trial Court Case No. 0966566
 

 
OPINION ON REHEARING
          After
a car wreck, Gloria Esparza sued the City of Houston, alleging that its
employee’s negligence was the cause. She sued the employee, too, but the
employee was dismissed from the suit under the Texas Tort Claims Act’s
election-of-remedies provision. The trial court denied the City’s plea to the
jurisdiction under the same provision, from which the City appeals.[1] We issued an opinion on
June 9, 2011 in favor of the City. Esparza has moved for rehearing, raising new
jurisdictional arguments. We grant rehearing and withdraw our previous opinion.
We conclude that the trial court properly denied the City’s plea to the
jurisdiction. We therefore affirm the trial court’s order. 
Background
          Esparza
sued the City and its employee, Manuel Espinoza, alleging that Espinoza negligently
caused a car accident involving Esparza.[2] The City moved to dismiss
Esparza’s claims against Espinoza individually, pursuant to section 101.106(e)
of the Tort Claims Act.[3] It also filed a plea to the
jurisdiction, asserting that Esparza’s claims against the City are barred by section
101.106(b) of the Act.[4] The trial court granted the motion to
dismiss Espinoza, but it denied the City’s plea to the jurisdiction. The City
challenges the denial of its plea.


 
Standard of Review
A plea to the jurisdiction challenges the trial court’s
subject-matter jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel
v. Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston
[1st Dist.] 2010, no pet.). The existence of subject-matter jurisdiction is a
question of law that we review de novo. State Dep’t of Hwys. & Pub.
Transp. v. Gonzalez, 82
S.W.3d 322, 327 (Tex. 2002); Kamel,
333 S.W.3d at 681. We may not presume the existence of subject-matter
jurisdiction; the burden is on the plaintiff to allege facts affirmatively
demonstrating it. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex.
1993); Kamel, 333 S.W.3d at 681. In deciding a plea to the jurisdiction, a court may not consider
the merit of the case, but only the pleadings and evidence pertinent to the
jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). 
Whether a governmental entity is immune from suit is a question
of subject-matter jurisdiction. Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
Determination
of that issue here turns on construction of the Tort Claims Act’s
election-of-remedies provision. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West 2011). In construing a statute, our primary
objective is to determine and give effect to the Legislature’s intent. State
ex rel. State Dep’t of Hwys. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Alexander v. Walker,
No. 01–10–00147–CV, 2011 WL 2500482, at *2 (Tex. App.—Houston [1st Dist.] Jan.
13, 2011, no pet.); see also Tex. Gov’t Code Ann. § 312.005 (West
2005). We first look to the plain language of the statute. Fitzgerald v.
Adv. Spine Fixation Sys.,
996 S.W.2d 864, 865 (Tex. 1999); Alexander,
2011 WL 2500482, at *2. We may also consider the object the Legislature sought
to attain, the circumstances under which it enacted the statute, legislative
history, former statutory provisions, and the consequences of a particular
construction. See Tex. Gov’t Code Ann. § 311.023(1)–(5)
(West 2005). “We ‘read the statute as a whole and interpret it to give effect
to every part.’” Gonzalez,
82 S.W.3d at 327 (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). With respect to a statutory
waiver of immunity, as in the Tort Claims Act, we interpret the waiver
narrowly, as the Legislature’s intent to waive immunity must be clear and
unambiguous. Mission Consol. Indep. Sch.
Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (West
2005)).
Subject-Matter Jurisdiction
A.      The Evolution
of Section 101.106 of the Tort Claims Act
Governmental immunity protects subdivisions of the State,
such as the City, from lawsuits and liability, which would otherwise “hamper
governmental functions by requiring tax resources to be used for defending
lawsuits and paying judgments rather than using those resources for their
intended purpose.” Garcia,
253 S.W.3d at 655–56 (quoting Reata
Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)). The
State can waive this immunity, and the Legislature has enacted statutes that
create limited waivers with respect to specific types of claims. E.g., Tex.
Civ. Prac. & Rem. Code Ann. § 101.001–.109 (West 2011) [Tort Claims Act]; Tex. Lab. Code Ann. § 21.001–.556 (West
2011) [Texas Commission on Human Rights Act (TCHRA)]. The Tort Claims Act “is
the only, albeit limited, avenue for common-law recovery against the
government,” and governs all tort claims asserted against a governmental
entity. Garcia, 253 S.W.3d at 659. 
Historically, in an effort to avoid
the Tort Claims Act’s restrictions, claimants under the Act sometimes chose to
sue the employee of a governmental entity, rather than the entity itself. Id. at 656. Thus, in 1985, the Legislature added to the Act a
provision that prevented claimants from suing government employees after
settlement or adjudication of claims against the government employer when the
claims involved the same underlying conduct. Act of May 17, 1985, 69th Leg., R.
S. ch. 959, § 1, 1985 Tex. Gen. Laws 3242 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 101.106). Claimants nonetheless
continued to sue both the governmental entity and its employee, often alleging
that the employee acted within the scope of his employment or, in the
alternative, that the employee was outside the scope of his employment. Garcia, 253 S.W.3d at 656. This
resulted in increased litigation costs for the government. Id. To alleviate this problem, the
Legislature amended section 101.106 in 2003 to force claimants to “decide at
the outset whether an employee acted independently and is thus solely liable,
or acted within the general scope of his or her employment such that the
governmental unit is vicariously liable, thereby reducing the resources that
the government and its employees must use in defending redundant litigation and
alternative theories of recovery.” Id.
at 657. 
Under the amended provision,
entitled “Election of Remedies,” a claimant’s filing of suit operates as a
binding election between pursuing her tort claims against a governmental entity
or pursuing them against its employees individually. Tex. Civ. Prac. & Rem. Code Ann. § 101.106. The provision
states:
(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.
Id. 
          The Supreme Court of Texas has
recognized that the Tort Claims Act’s election-of-remedies provision imposes
“irrevocable consequences” on a claimant’s decision regarding whom to sue, such
that a claimant “must proceed cautiously before filing suit and carefully
consider whether to seek relief from the governmental unit or from the employee
individually.” Garcia, 253 S.W.3d at 657.
          B.      The Parties’ Contentions
The City contends that Esparza has
failed to comply with the election-of-remedies provision because she sued both the City and its
employee. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106. The City
asserts that the provision requires a claimant to choose between suing either
the City or its employee, and a claimant who instead sues both loses the
opportunity to sue either—the
employee is dismissed under subsection (e) and the government is immune under
subsection (b). See id. §§ 101.106(b),
101.106(e).
Esparza responds on several
grounds. First, Esparza asserts that she did not sue the City’s employee,
Espinoza, because he was not served and did not appear in the case, and thus
the trial court never acquired personal jurisdiction over him. Because the trial
court did not acquire personal jurisdiction over Espinoza, Esparza contends
that he was never a party and that subsection (b) does not apply to her suit.
Second, she contends that if her suit was, at least initially, against both the
City and Espinoza, then section 101.106(e), and not section 101.106(b), applies
to her suit. Finally, she contends that, even if subsection (b) applies to her suit,
she falls within a “consent” exception to that provision because her claims
against the City fall within the limited waiver of immunity in section 101.021,
for claims arising out of a government employee’s negligent operation of a
motor vehicle. See Tex. Civ. Prac. & Rem. Code Ann. §
101.021(1) (West 2011); id. §
101.106(b) (barring suit against a governmental unit, when applicable, “unless the governmental unit
consents.”). Esparza contends that this is all that is necessary to satisfy section
101.106(b)’s “consent” exception. 
The City does not challenge
Esparza’s contention that her claims fall within the scope of section 101.021’s
limited waiver of immunity for claims involving a government employee’s
negligent operation of a motor vehicle. Instead, the City responds that
“consent” within the meaning of subsection (b) cannot be found within the Tort
Claims Act itself, because to do so would render subsection (b) meaningless. The
City contends that “consent” must be found in an independent statutory waiver
of immunity outside the Act, and no such independent waiver of immunity is pled
here. We address the parties’ contentions in turn.
C.      Esparza’s Claim that She Did Not Sue a
Government Employee
We reject Esparza’s contention that
she did not sue the City’s employee, Espinoza, within the meaning of the
election-of-remedies provision. Under the plain language of the statute, the bar to suit or
recovery against a governmental employer stems from the claimant’s “filing of a
suit against” its employee, not the trial court’s acquiring personal
jurisdiction over the employee, and it is triggered “immediately.” Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (b). As this Court
has previously noted, “the plain language of [sections 101.106(a) and (b)]
suggests that the legislature intended for the plaintiff’s election to occur
when the plaintiff first files suit.”[5] Alexander, 2011
WL 2500482, at *4. Thus, when Esparza filed her petition naming Espinoza and
the City as defendants, she filed suit against both of them within the meaning
of the election-of-remedies provision.

D.      The City’s
Construction of Section 101.106(b) and Esparza’s Alternative Constructions
 
The City contends that section
101.106(b) operates as a complete bar to claimants who sue both it and its
employees, even if the government has waived its immunity for the type of claim
the claimant alleges. Esparza contends that subsection (b) does not bar her
suit because it does not apply to her suit or because the government has
“consented” to her suit within the meaning of that subsection. For the reasons
detailed below, we reject Esparza’s contention that alleging facts that fall within the subject matter of one of the
Tort Claims Act’s waivers of immunity is, alone, sufficient to establish the
government’s consent to suit under section 101.106(b), without also showing
that a claimant has met the Act’s other jurisdictional requirements, including
the election-of-remedies provision. But we conclude that Esparza has complied
with the jurisdictional requirements of the election-of-remedies provision. She
elected her remedy—not by
choice, but by operation of the statute. When a claimant fails to elect between
defendants and instead sues both, subsection (e) forces an election upon the
claimant: the governmental unit is the proper defendant and the employee must
be dismissed. See Tex. Civ. Prac. & Rem. Code Ann. §
101.106(e). We therefore reject the City’s contention that Esparza’s claims
against it are barred by section 101.106(b). 



 
1.       Overview of
Section 101.106 of the Tort Claims Act
Since its enactment, there has been
considerable litigation over the election-of-remedies provision in the Tort
Claims Act, section 101.106. Giving effect to its plain language[6] and its provisions as a
whole,[7] section 101.106 operates in
two ways with respect to a claimant’s filing of suit: 
·       
Voluntary Election: A claimant may choose whether to pursue her common law tort claims
against a governmental unit or its employees by filing suit against one or the
other.
o   If the claimant elects to
bring common law tort claims against a governmental unit instead of its
employee, 101.106(a) forever bars the claimant’s common law tort claims against
the employee arising out of the same subject matter.[8]
o   If the claimant elects to
bring claims against a government employee instead of his employer, section
101.106(b) forever bars the claimant’s common law tort claims against the
governmental unit arising out of the same subject matter. Section 101.106(b)
also forever bars any other claims against the governmental unit arising out of
the same subject matter unless authorized by an independent statute, the
jurisdictional requirements of which the claimant has satisfied.[9]
·       
Involuntary Election: If a claimant fails to make an election or, under certain
circumstances, if the claimant elects incorrectly, the election-of-remedies
provision operates to elect the governmental unit as the party against which
she may pursue her claims.
o   If a claimant attempts to
bring common law tort claims against both the governmental unit and its
employee, on the government’s motion,[10] section 101.106(e) forces
the claimant to elect the governmental unit as the claimant’s chosen defendant,
requiring dismissal of the government employee and endowing the employee with
immunity under section 101.106(a).
o   If a claimant elects to
bring common law tort claims against a government employee instead of his
employer, but the employee establishes that his actions were within the scope
of his employment and the suit could have been brought against the governmental
unit, subsection 101.106(f) allows the claimant to switch her election to the
governmental unit if she amends her
pleadings to dismiss the employee and name the governmental unit as a defendant
within thirty days. The government employee then has immunity under section 101.106(a).[11] If the claimant fails to
timely amend, her election to sue the employee stands, giving the governmental
unit immunity under (b),[12] and leaving as defendant
the employee who, having demonstrated that he acted within the scope of his
employment, is entitled to dismissal of the claimant’s common law tort claims
against him.[13]
See Tex. Civ. Prac. & Rem. Code Ann. § 101.106; See also Garcia, 253 S.W.3d at 657 (“Under
the Tort Claims Act’s election scheme, recovery against an individual employee
is barred and may be sought against the governmental unit only in three
instances: (1) when suit is filed against the governmental unit only, id.
§ 101.106(a); (2) when suit is filed against both the governmental unit and its
employee, id. § 101.106(e); or (3) when suit is filed against an
employee whose conduct was within the scope of his or her employment and the
suit could have been brought against the governmental unit, id. §
101.106(f).”).
2.       Interaction Among
Subsections (a), (b), and (e)
We reject the City’s contention that subsections (b) and (e)
apply without reference to each other when a claimant sues both the government
and its employee together, thus requiring the dismissal of both defendants.
Instead, the statutory scheme requires that the trial court dismiss the employee
upon the governmental unit’s motion, leaving the governmental unit to defend
suits that otherwise comport with the Tort Claims Act’s jurisdictional
constraints. This construction is compelled by the statute’s plain language and
structure and is consistent with the Texas Supreme Court’s jurisprudence. See Tex. Civ.
Prac. & Rem. Code Ann. § 101.106(e) (“If suit is filed under this chapter against
both a governmental unit and any of its employees . . .”); Garcia, 253
S.W.3d at 657 (stating that, under section 101.106, suit may be brought against
governmental unit but not its employees in three situations, including “when
suit is filed against both the governmental unit and its employee”). If, as the
City argues, subsections (a) and (b) apply independently to any suit brought
against a governmental unit and its employee simultaneously and mandate dismissal
of both the governmental unit and its employee in such cases, then subsection
(e), which dictates the dismissal of the employee in such cases, would be
superfluous, and its language, which does not mention dismissal of the
governmental unit, would be incongruent. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). 
A construction that applies subsection (e) to force an
election of the governmental unit as the exclusive defendant in suits like this
one accomplishes the Legislature’s recognized goals for the statute. The
statute forces an election between defendants—whether by the claimant’s choice
or by operation of the statute—and gives that election “irrevocable
consequences.” In doing so, section 101.106 eliminates the redundancy and delay
associated with alternative theories of liability against a governmental unit
and its employee. Garcia, 253
S.W.3d at 657; see Alexander, 2011 WL
2500482, at *3. It
likewise discourages a claimant from attempting to circumvent the Act by suing
a government employee individually, because a claimant who does so is
foreclosed from any future recovery against the governmental unit, whether she
prevails against the employee or not. Garcia, 253
S.W.3d at 657; see also Alexander,
2011 WL 2500482, at *3. Finally, while a claimant who erroneously fails to make
an election has an election foisted upon her by operation of the statute, her
inartful drafting does not, alone, bar her claims against both the employee and the employer. It is
this construction that we adopt in rejecting the City’s contention that section
101.106(b) operates as a bar to a suit against it that otherwise comports with
the Act’s jurisdictional constraints. Because our sister court has adopted
Esparza’s alternative interpretation—a broad “consent” exception—in rejecting the City’s argument, we next discuss its statutory
implications.
3.       Consent
to Suit Under Subsection 101.106(b)
Subsection 101.106(b) of the Tort Claims Act is qualified by
a “consent” exception: when applicable, subsection (b) bars suit against a
governmental unit “unless the governmental unit consents.” See Tex. Civ. Prac. & Rem.
Code Ann. § 101.106(b). Unlike
some of our sister courts, we do not read this exception as creating a blanket
waiver of the very immunity established by subsection (b). Cf., e.g., Amadi v. City of
Houston, No. 14-10-01216-CV, 2011 WL 2638221, at *4–5 (Tex.
App.—Houston [14th Dist.] July 7, 2011, no pet. h.); Barnum v. Ngakoue,
No. 03-09-00086-CV, 2011 WL 1642179, at *11 (Tex. App.—Austin April 29, 2011, pet.
filed); City of N. Richland Hills v.
Friend, 337 S.W.3d 387, 392–93 (Tex. App.—Fort Worth 2011, pet. filed). Rather,
subsection (b)’s “consent” exception permits a claimant to bring suit against a
governmental unit only if the claimant has complied with all of the authorizing
statute’s jurisdictional requirements for bringing suit. See Garcia, 253 S.W.3d at 660 (“[T]he Legislature, on behalf of
[the school district], has consented to suits brought under the TCHRA, provided
the procedures outlined in the statute have been met.”) For claims brought
under the Tort Claims Act, the claimant must meet all of the Act’s jurisdictional
constraints.[14] 
By its plain language and very nature,[15]
the election-of-remedies provision is such a jurisdictional constraint. See Franka v. Velasquez, 332
S.W.3d 367, 371 n.9 (Tex. 2011);
Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells, 327
S.W.3d 233, 239–240 (Tex. App.—San
Antonio 2010, no pet.) (observing that, although it has procedural aspects,
section 101.106 is jurisdictional in nature). Although the Act waives immunity for certain
claims,[16]
the election-of-remedies provision expressly confers immunity on the un-elected
defendant for all claims brought under the Act, regardless of whether the Act
otherwise waives immunity for the sorts of claims at issue. See Garcia, 253 S.W.3d at 659–60 (noting
that, when applicable, 101.106(b) bars claims outside of the Tort Claims Act,
“not just suits for which the [Act] waives immunity or those that allege common
law claims.”); see also Franka, 332 S.W.3d at 371 n.9 (describing
the character of the election-of-remedies provision as “conferring immunity”).
Once a claimant has made an election under the statute—whether voluntarily or by operation of the
statute—the claimant may never
satisfy the Act’s jurisdictional prerequisites for bringing suit against the
un-elected defendant. 
We recognize that this construction
of the “consent” exception may conflict with the analysis in recent cases out
of the Fort Worth, Houston Fourteenth and Austin Courts of Appeals. See
Friend, 337 S.W.3d at
392–93; City of Houston v. Johnson,
No. 14-11-00220-CV, 2011 WL 3207964, at *2 (Tex. App.—Houston [14th Dist.] July
28, 2011, no pet. h.); City of Houston v.
Cooper, No. 14-11-00092-CV, 2011 WL 3207958, at *2 (Tex. App.—Houston [14th
Dist.] July 28, 2011, no pet. h.); City of Houston v. Rodriguez, No.
14-11-00136-CV, 2011 WL 2683557, at *3–5 (Tex. App.—Houston [14th Dist.] July
12, 2011, no pet. h.); Amadi, 2011 WL 2638221, at *4–5; Barnum,
2011 WL 1642179, at *10–12. Relying on the Texas Supreme Court’s opinion in Garcia, these courts have relied
exclusively on the Tort Claims Act’s waivers of immunity for particular kinds
of claims—claims arising out of the negligent operation of a motor-vehicle,[17]
premise defects,[18]
or the condition or use of tangible personal or real property[19]—to
hold that the government “consents” to suit in those kinds of cases, without
reference to whether the claimant has complied with the Act’s other
jurisdictional requirements. See Friend,
337 S.W.3d at 392–97 (finding consent as to claim pled within a limited waiver
of immunity but not those outside the limited waivers); Johnson, 2011 WL 3207964, at *2 (holding that city consented to
claims based on negligent operation of motor-driven vehicle); Cooper, 2011 WL 3207958, at *2 (same); Rodriguez,
2011 WL 2683557, at *3–4 (same); Amadi, 2011 WL 2638221, at *4 (same); Barnum,
2011 WL 1642179, at *10–12 (same). We disagree that these limited waivers of
immunity, alone, establish a government’s consent to suit.
First, we do not read Garcia
as holding that the “consent” exception in subsection (b) is nonetheless
satisfied even absent compliance with all of the jurisdictional requirements of
the Tort Claims Act or some independent statutory waiver of immunity. The Garcia Court stated its holding on
“consent” in these words: [T]he
Legislature, on behalf of [the school district], has consented to suits brought
under the TCHRA, provided the procedures
outlined in the statute have been met.” Garcia, 253
S.W.3d at 660 (emphasis added). Like the TCHRA, the Tort Claims Act prescribes
certain procedures with which a claimant must comply in order to fall within
the Act’s waivers of immunity. E.g., Tex. Civ.
Prac. & Rem. Code Ann. § 101.101 (West 2011) (prescribing a pre-suit
notice requirement). A claimant who fails to comply with the Act’s
jurisdictional requirements falls outside the Act’s limited waivers of
immunity, regardless of whether the claim is one for which immunity is
otherwise waived under the Act. See Univ.
of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia ex rel.
Vasquez-Arancibia, 324 S.W.3d 544, 546 (Tex. 2010) (“The Texas Tort Claims
Act waives immunity from suit
‘to the extent of liability created by [the Act].’ To take advantage of this
waiver, the plaintiff must notify the government of a claim within six
months.”) (citations omitted); see also Tex. Gov’t Code Ann. § 31.034 (West Supp.
2010) (“Statutory prerequisites to a suit, including the provision of notice,
are jurisdictional requirements in all suits against a governmental entity.”). The
election-of-remedies provision is such a jurisdictional requirement.
Second, if the Tort Claims Act’s limited waivers of immunity
constituted “consent” in and of themselves, as some courts of appeals have
indicated, then the “consent” exception appears to swallow the rule
entirely. Cf.  Franka, 332 S.W.3d at 393 (“Statutory
language should not be read as pointless if it is reasonably susceptible to
another construction.”). The Austin Court of Appeals recognized this problem:
“[T]his construction
of the term ‘consents’ in subsection 101.106(b) seems to eliminate any real
effect to the provision because plaintiffs have always been prohibited from
suing governmental employers when immunity has not been waived. Stated
differently, subsection 101.106(b) only bars subsequent suits against
governmental employers that were already barred through the doctrine of
sovereign immunity.” Barnum, 2011 WL 1642179, at *10. 
Barnum itself
demonstrates the problematic effect of a construction of section 101.106(b)
that finds “consent” in the Act’s limited waivers of immunity alone. In that
case, Ngakoue elected to sue a government employee, Barnum, after they were
involved in a car accident. Id. at
*2. Barnum filed a motion for dismissal under section 101.106(f), demonstrating
that he was acting within the scope of his employment with the Texas Adjutant General’s Office (AGO) at the time of
the accident. Id.; see Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f). Ngakoue failed to
timely amend his pleadings under subsection (f), as required to treat Ngakoue’s
suit as an election to sue the AGO, rather than Barnum, under that subsection. Barnum, 2011 WL 1642179, at *6. Under our construction of the
election-of-remedies provision, the result would be that Ngakoue’s election to
sue Barnum would stand, such that the AGO would be immune under subsection (b). Under the construction adopted by
the Austin Court of Appeals and others, subsection (b) did not bar Ngakoue’s
claims against the AGO, even
though Ngakoue failed to comply with the procedures of subsection (f) because
he did not timely amend his pleadings to sue the AGO and dismiss Barnum. Id. at *11. Instead, the court held that,
because those claims fell within the Tort Claims Act’s limited waiver of
immunity for negligent operation of a motor-vehicle, the AGO had “consented” to
the suit against it. Id. Under that construction, a claimant has no
incentive to comply with subsection (f)’s procedures—whether he complies or does not comply, the
outcome will be that an employee is dismissed, but the claimant may still bring
claims against the governmental unit. See
id. 
Similarly, if the Act’s limited
waivers of immunity were, alone, sufficient to constitute “consent” to suit
under section 101.106(b), a car-accident claimant could avoid electing between
defendants by first suing the government employee individually and then suing
the employer if she were unsuccessful in obtaining a judgment against the
employee. This result neither discourages claimants from suing government
employees in an effort to circumvent the restrictions of the Act nor “reduc[es]
the resources that the government and its employees must use in defending
redundant litigation and alternative theories of recovery.” Garcia, 253 S.W.3d at 657 (identifying
the legislative purposes of the election-of-remedies provision); see also Barnum, 2011 WL 1642179, at *11; Alexander, 2011 WL 2500482, at *4.
By contrast, under our construction
of the election-of-remedies provision, subsections (a) and (b) operate as mirror provisions with
respect to claims brought under the Act. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (b); see also Alexander, 2011 WL 2500482, at *3 (describing subsection
(b) as a “parallel provision” to subsection (a)); cf. Barnum, 2011 WL
1642179, at *11 (noting that subsections (a) and (b), like subsections (c) and
(d), are “mirror provision[s]” evidencing an intent to prevent a claimant from
suing or recovering against either a governmental employer or its employee and
then subsequently suing or recovering against the other). Specifically, once a
claimant elects to sue a governmental unit instead of its employee, subsection
(a) immediately and forever bars the claimant from bringing common law tort
claims regarding that subject matter against its employees. See Kamel
v. Univ. of Tex. Health Ctr.,
333 S.W.3d 676, 688 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied); Hintz v. Lally,
305 S.W.3d 761, 771 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
Concordantly, under our construction of subsection (b), once a claimant elects
to sue a government employee instead of its governmental employer, [20]
subsection (b) immediately and forever bars the claimant from bringing common
law tort claims regarding that subject matter against the employer.[21]

Our construction of section 101.106(b) is consistent with
previous decisions issued by the San Antonio, El Paso, Corpus Christi, and Waco
Courts of Appeals. See Tex. Tech Univ.
Health Sci. Ctr. v. Williams, 344 S.W.3d 508, 513–14 (Tex. App.—El Paso
2011, no pet.); Webber-Eells, 327 S.W.3d at 236; Huntsville Indep.
Sch. Dist. v. Briggs, 262 S.W.3d 390, 394 (Tex. App.—Waco 2008, pet.
denied); Tex. Dept. of Agri. v. Calderon, 221 S.W.3d 918, 924 (Tex.
App.—Corpus Christi 2007, no pet.), disapproved of on other grounds by Franka
v. Velasquez, 332 S.W.3d 367 (Tex. 2011). In these cases, courts of appeals
applied section 101.106(b) to bar common law tort claims against a governmental
unit when the claimant brought claims regarding the same subject matter against
a government employee and failed to comply with section 101.106(f)’s procedures
for dismissing the employee and suing the governmental unit, even though the
claims were pled as falling within the Act’s limited waivers of immunity. See Williams, 344 S.W.3d at 514
(dismissing claims against governmental employer based on alleged negligent
operation of motor vehicle); Webber-Eells, 327 S.W.3d at 236 (dismissing
claims against governmental employer based on alleged misuse of tangible
property); Briggs, 262 S.W.3d at 394 (dismissing claims against
governmental employer based on alleged negligent operation of motor vehicle); Calderon,
221 S.W.3d at 924 (dismissing claims against governmental employer based on
alleged negligent operation of motor vehicle). 
For these reasons, we conclude that a claimant may find
“consent” to suit within the Tort Claims Act’s limited waivers of immunity only
if the claimant has satisfied the Act’s other jurisdictional requirements,
including those set forth in the election-of-remedies provision. A claimant
satisfies the provision by electing—voluntarily or involuntarily—whether she
will prosecute her claims against a governmental unit or its employee, forever
forgoing prosecution against the other. 


 
4.       Application of
the Election-of-Remedies Provision to Esparza’s Claims Against the City
 
Under section 101.106, Esparza’s filing of suit against both
Espinoza and the City invoked subsection (e). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). By operation of subsection (e), Esparza’s
filing of suit and the City’s motion to dismiss Espinoza resulted in a forced
election: whether she intended to or not, Esparza elected to pursue her claims
against the City rather than Espinoza. Id.; see also Garcia, 253 S.W.3d
at 657 (“recovery against an
individual employee is barred and may be sought against the governmental unit
only . . . when suit is filed against both the governmental unit and its
employee, [Tex. Civ. Prac. & Rem. Code Ann.] § 101.106(e)”). The trial court
therefore properly dismissed her claims against Espinoza, and she is forever
barred from bringing common law tort claims against him arising out the
accident at issue here. Id. §
101.106(a), (e). But, so long as she has otherwise complied with the
jurisdictional requisites of the Tort Claims Act,[22]
subsection (b) does not bar Esparza from pursuing her claims against the City,
her elected defendant. See id. § 101.106(b),
(e).


 
Conclusion
We hold that the trial court properly denied the City’s plea
to the jurisdiction under section 101.106(b) of the Tort Claims Act. We therefore
affirm the trial court’s order.
 
 
Jane
Bland
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley and Bland.




[1]           See Tex. Civ. Prac.
& Rem. Code Ann. §
51.014(a)(8) (West 2008) (authorizing interlocutory appeal from denial of
governmental unit’s plea to the jurisdiction).


[2]           Esparza did not plead that her claims
against Espinoza were brought against him in his official capacity, nor did she
limit her claims against him to conduct within the scope of his employment.
Instead, she asserted negligence claims against Espinoza and claims against the
City “[a]dditionally, and/or in the alternative.”


[3]
          See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (West 2011).


[4]
          See id. § 101.106(b).


[5]
          A claimant’s initial election remains subject to the provisions of the
statute itself, which may alter the elected defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e), (f).


[6]           See
Ojo v. Farmers Group,
Inc., No. 10-0245, 2011
WL 2112778 (Tex. May 27, 2011) (stating that a statute’s text is the best
indication of the Legislature’s intent); Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 901 (Tex. 2010)
(“Our ultimate purpose when construing statutes is to discover the
Legislature’s intent. Presuming that lawmakers intended what they enacted, we
begin with the statute’s text, relying whenever possible on the plain meaning
of the words chosen.”) (citations and quotations omitted). 


[7]           See
LTTS Charter Sch.,
Inc. v. C2 Constr., Inc.,
No. 09-0794, 2011 WL 2420204 (Tex. June 17, 2011) (“We thus give unambiguous
text its ordinary meaning, aided by the interpretive context provided by ‘the
surrounding statutory landscape.’”).


[8]           See
Zimmerman v. Anaya, 2011 WL 1234685, at *2–3 (Tex. App.—Houston [1st Dist.]
Mar. 31, 2011, pet. denied) (when claimant originally sued governmental unit
and later added employee as defendant, employee was entitled to dismissal under
subsection (a)).


[9]           See Garcia, 253 S.W.3d at 659–60 (holding that,
when subsection (b) applies, it bars any suit brought against a governmental
unit unless the governmental unit has consented to suit and that such consent
may be found in a statutory waiver of immunity).


[10]         We note that dismissal of a government
employee under subsection (e) and immunity under subsection (a) may be
dependent upon the governmental unit’s decision to file a motion to dismiss the
employee. See Hernandez v. City of
Lubbock, 253 S.W.3d 750, 754–57 (Tex. App.—Amarillo 2007, no pet.) (holding
that government employee was not entitled to dismissal under subsection (e)
when government unit did not file subsection (e) motion but instead sought only
summary judgment on basis of governmental immunity). Because the City filed a
subsection (e) motion here, we do not reach the issue of what effect, if any,
subsection (e) has when the governmental unit does not file such a motion.


[11]         See
Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379 (Tex.
App.—Fort Worth 2008, no pet.) (affirming dismissal of claims against
government employee under subsection (e) when claimant filed tort claims
against both governmental unit and its employee); Davis v. Blankenship, 2010 WL 5419021, at *1, *3 (Tex. App.—Waco
Dec. 29, 2010, no pet.) (when claimant sued employees in both individual and
official capacities, trial court dismissed claims against employees in
individual capacities under subsection (e) and court of appeals held that
employees were entitled to dismissal of claims against them in official capacities
on basis of governmental immunity); see
also Kelemen v. Elliott, 260 S.W.3d 518, 522–23 (Tex. App.—Houston [1st
Dist.] 2008, no pet.) (holding that when claimant brought tort claims against
government employee only, though claimant also brought statutory claims against
employer only, subsection (e) did not apply because claimant did not bring any
tort claims against both governmental unit and its employer).


[12]         See, e.g., Tex. Tech Univ. Health Sci.
Ctr. v. Williams, 344 S.W.3d 508,
513–14 (Tex. App.—El Paso 2011, no pet.) (“When a plaintiff decides to amend
and substitute under Subsection (f), but fails to do so timely, . . . the
governmental unit’s immunity protections arising from a plaintiff’s original
election to file suit against an employee defendant under Subsection (b) remain
intact.”); Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells,
327 S.W.3d 233, 236 (Tex. App.—San Antonio 2010, no pet.) (dismissing claims
against governmental unit after claimant failed to comply with procedures in
subsection (f)).


[13]         See Franka v. Velasquez,
332 S.W.3d 367, 381 (Tex. 2011) (observing that subsection (f), as interpreted
by the Court, changed the rule in previous case law that allowed malpractice
suits against physicians employed by the government even though they acted
within the scope of their employment). 


[14]         By
comparison, for claims brought
under other statutes, such as the Texas Commission on Human Rights Act (TCHRA),
the claimant must meet all of the jurisdictional constraints of that act, which
may or may not require an election between suing a governmental unit or its
employees. See Garcia, 253 S.W.3d at
660.


[15]         Our
Legislature is tasked with “weigh[ing] the conflicting public policies
associated with waiving immunity,” which expose the government to “liability
that may hamper governmental functions by shifting tax resources away from
their intended purposes toward defending lawsuits and paying judgments.” Tex. Natural Res. Conservation Comm’n v.
IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). The Legislature has determined
that the common practice of tort claimants to prosecute their claims against
both a governmental unit and its employee individually on alternative theories
of liability resulted in duplicative litigation expenses, which was burdensome
for public employees and not the highest and best use of tax dollars. See Garcia, 253
S.W.3d at 657. When previous efforts to address this issue did not eliminate
the problem, the Legislature enacted the election-of-remedies provision, which
forces a claimant to decide at the outset whether to pursue the governmental
employer or the employee in his individual capacity and makes that decision
irrevocable. Id. Under the statute,
the effect of a claimant’s choice (whether made intentionally or by operation
of the statute) is immunity for the other party. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.106; see also
Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997); Webber-Eells, 327 S.W.3d at 239–240. 


[16]         Tex.
Civ. Prac. & Rem. Code Ann. §§ 101.021(1) (waiving immunity for
certain claims arising out of negligent operation or use of motor-driven
vehicle or equipment); 101.021(2) (waiving immunity for certain claims arising
out of condition or use of tangible property); 101.022 (waiving immunity for certain
claims arising out of premises defects).


[17]         Id. § 101.021(1).


[18]         Id. § 101.022.


[19]         Id. § 101.021(2).


[20]         This election may be subject to the
effect of subsection (f), where it applies.


[21]
        While subsection (a) applies only
to claims brought under the Tort Claims Act, subsection (b) applies to all suits
against a governmental unit, including claims outside the Act. See
Garcia, 253 S.W.3d at 659; Franka,
332 S.W.3d at 378. With respect to claims outside the Act, application of the
bar depends on whether the claimant has satisfied the jurisdictional
requirements of the statutory waiver of immunity under which the claimant
asserts her claims. The election-of-remedies provision thus precludes a claimant
from proceeding against both a governmental unit and its employee under the Act
but does not bar a claimant from proceeding against both a governmental unit
and its employee pursuant to waivers of immunity in other statutes that do not
require an election between defendants. See
Garcia, 253 S.W.3d at 660
(holding that claims under TCHRA were not barred by section 101.106(b) as long
as claimant complied with its procedures for bringing suit).


[22]
        The City does not challenge
Esparza’s compliance with any of the Tort Claims Act’s jurisdictional
requirements other than the election-of-remedies provision.


