                           NUMBER 13-09-00205-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

CITY OF CORPUS CHRISTI,                                                  Appellant,

                                          v.

ANTHONY EBY, INDIVIDUALLY AND AS
NEXT FRIEND OF MARY V. EBY, A MINOR,
AND JESSICA FRENCHAK,                                                    Appellees.


               On appeal from the County Court at Law No. 1
                        of Nueces County, Texas.


             CONCURRING MEMORANDUM OPINION
               Before Justices Garza, Vela, and Perkes
           Concurring Memorandum Opinion by Justice Garza
      I recognize that the election of remedies provision in the Texas Tort Claims Act

(the ―Act‖), as interpreted by the Texas Supreme Court, compels the result reached by

the Court today. I write separately, however, to note that the supreme court appears to
have construed the Act without considering that an individual government employee,

such as Vesely, may waive his own immunity by initiating suit.

      Subsection (e) of the Act’s election of remedies provision states that ―[i]f 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) (Vernon 2011) (emphasis added).

In Mission Consolidated Independent School District v. Garcia, the supreme court held:

      Because the Tort Claims Act is the only, albeit limited, avenue for
      common-law recovery against the government, all tort theories alleged
      against a governmental unit, whether it is sued alone or together with its
      employees, are assumed to be ―under the Tort Claims Act‖ for purposes of
      section 101.106.

253 S.W.3d 653, 659 (Tex. 2008).        The result of this assumption is that the Act’s

election scheme applies to ―all tort theories alleged against a governmental unit,‖

regardless of whether the claims at issue were actually brought pursuant to the Act’s

limited waiver of sovereign immunity. Id. Under this assumption, the trial court had no

choice but to dismiss Eby’s counterclaims against Vesely.

      However, I believe the premise underlying the Garcia assumption—that ―the Tort

Claims Act is the only, albeit limited, avenue for common-law recovery against the

government,‖ 253 S.W.3d at 659—is wrong. On the contrary, it is eminently possible

that a governmental unit’s immunity to common-law tort claims may be waived by

means other than the limited waiver provided in the Act. Specifically, a governmental

unit waives its immunity to certain common-law tort claims by initiating suit in the trial

court. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 377 (Tex. 2006). When a

governmental unit initiates a suit for damages, the unit waives its immunity for any



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counterclaims which are ―germane to, connected with, and properly defensive‖ to the

matters on which the government unit based its claim. Id.

       In the instant case, the entity initiating suit was not the City itself, but rather

Vesely individually. Vesely is entitled to immunity from any suit brought against him in

his individual capacity, if the suit arose from the good faith performance of Vesely’s

discretionary duties within the scope of his authority as a City employee.              City of

Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). It is likely that Vesely’s

actions, as alleged by Eby in his countersuit, fall under this definition. See id. Because

Vesely is likely entitled to immunity for his official actions, as the City would be, it follows

that he also must be held to the same standard as the City with respect to waiver by

initiating suit. In other words, if a government employee initiates suit, the employee

waives his immunity with respect to any counterclaims which are ―germane to,

connected with, and properly defensive‖ to the matters on which the employee based

his claim. See Reata, 197 S.W.3d at 377.

       Here, Eby’s counterclaim arose from the very same facts as the defamatory

remarks alleged in Vesely’s petition; and the issue of whether those facts are true would

be ―properly defensive‖ to Vesely’s claims. Randall’s Food Mkts., Inc. v. Johnson, 891

S.W.2d 640, 646 (Tex. 1995) (stating that truth of the alleged defamatory remarks is an

affirmative defense in defamation suits).          Accordingly, by filing suit for defamation,

Vesely waived his immunity to Eby’s counterclaim because the latter suit is ―germane

to, connected with, and properly defensive‖ to the former. Because Vesely waived his

immunity by initiating suit, there is no reason to assume that Eby’s counterclaim was

brought under the Act’s waiver provision. Thus, under these circumstances, the Act’s



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election of remedies provision should not apply. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.106(e) (applying only to suits ―filed under this chapter‖).

       Nevertheless, we are bound to follow the supreme court’s instruction that all

common-law tort claims against the government are subject to the election of remedies

scheme in the Tort Claims Act. See City of Mission v. Cantu, 89 S.W.3d 795, 809 n.21

(Tex. App.–Corpus Christi 2002, no pet.) (―As an intermediate appellate court, we are

bound to follow the expression of the law as stated by the Texas Supreme Court and

leave changes in the law to that court or the legislature.‖)).      Unfortunately, the

assumption can generate unjust results that the high Court may not have anticipated—

such as here, where Vesely is permitted to sue Eby but Eby is forbidden from

countersuing Vesely based on the same underlying facts. I urge the supreme court to

clarify or reconsider the applicability of the assumption mandated in Garcia, which I

submit is inappropriate in the rare case where a counterclaim is brought after a

government official initiates suit against a citizen.



                                                   DORI CONTRERAS GARZA
                                                   Justice

Delivered and filed the
14th day of April, 2011.




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