                              Fourth Court of Appeals
                                     San Antonio, Texas
                                  CONCURRING OPINION
                                        No. 04-17-00099-CV

                                          Victor RAMOS,
                                             Appellant

                                                 v.

                                       CITY OF LAREDO,
                                            Appellee

                     From the 111th Judicial District Court, Webb County, Texas
                                Trial Court No. 2015CVT003985 D2
                             Honorable Susan D. Reed, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice
Concurring Opinion by: Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: March 28, 2018

           I write separately to point out my concern about a potential unintended consequence of

section 101.106(e) of the Texas Civil Practice & Remedies Code (“the Code”). The take-nothing

judgment entered in the underlying cause is the “untenable” result this court forecasted could occur

in Franka v. Velasquez, 216 S.W.3d 409, 413 (Tex. App.—San Antonio 2006), rev’d, 332 S.W.3d

367 (Tex. 2011). A governmental entity should not be permitted to demand that its employee be

dismissed from a lawsuit under section 101.106(e) of the Code and then, after the employee is

dismissed from the lawsuit, attempt to assert immunity or otherwise avoid liability by arguing the

employee was not within the course and scope of his employment. Fortunately, the City’s judicial
Concurring Opinion                                                                04-17-00099-CV


admission precludes it from capitalizing on that approach in this case. This case does, however,

demonstrate the need for the Legislature to consider amending the statute to prevent what must be

an unintended consequence.

                                                Marialyn Barnard, Justice




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