

Opinion issued
October 27, 2011

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO. 01-10-01015-CV
———————————
CITY OF WEBSTER, TEXAS, Appellant
V.
DAVID
R. MYERS,
Appellee

 

 
On Appeal from the 127th
District Court
Harris County, Texas

Trial Court Case No. 2010-28620
 

 
 
O P I N I O N
          The
City of Webster (“the City”) appeals the trial court’s denial of the City’s
motion to dismiss David R. Myers’ claims against city employees, Darrell
Kelemen, Jr., Tiffany Swanson, Leslie Folk, Christina Garza, Sue Gallagher, Wayne
Sabo, and Ray Smiley.  In one issue, appellant
contends that Myers’ claims against the city employees must be dismissed
pursuant to section 101.106(e) of the Texas Tort Claims Act.[1]
          We reverse
and render.
Background
          David
R. Myers became a peace officer with the City of Webster police
department in 1985.  In 2004, Myers was
promoted to the position of captain.  After
three female subordinates filed complaints alleging that Myers had sexually
harassed them, the City terminated Myers’ employment in 2008. 
          Myers
filed suit against the City and eight individuals, including seven city
employees.  In his Original Petition, Myers
denied the allegations of sexual harassment. 
He asserted that the allegations arose from a plan formulated by fellow
police officer, Darrell J. Kelemen, Jr. 
Myers averred that Kelemen had a grudge against him and coveted his captain’s
position.  Myers claimed that Kelemen recruited
three female police department employees, Tiffany Swanson, Leslie Folk, and
Christina Garza, to allege that Myers had sexually harassed them.  
Myers asserted that the
department’s police chief, Ray Smiley, and the city manager, Wayne Sabo, also participated,
“for personal reasons,” in the conspiracy “to cause the separation of Myers
from the department and ruin his peace officer’s career.”  Two weeks after the police department first
became aware of the allegations of sexual harassment, the City’s human
resources manager, Sue Gallagher, suspended Myers.  Myers alleged that Gallagher did not follow proper
procedure in handling the employment matter. 
He asserts that Gallagher also participated in the conspiracy to terminate
his employment and to ruin his law enforcement career. 
          The
City ultimately terminated Myers as a result of the sexual harassment
complaints.  Myers unsuccessfully contested
his termination through the City’s internal grievance process.  
Myers also appeared at a
hearing before the city council to tell his side of the story.  Myers alleged in his Original Petition, “With
full knowledge of the facts, the [city council] acquiesced and effectively
ratified the action of the City Manager, thus delegating to the City Manager
the ultimate authority to decide the action taken against Myers.”  
          Myers
further alleged in his Original Petition, “In further pursuit of the continuing
conspiracy against Myers, the City of Webster, through its officials,
unlawfully released information regarding sexual harassment allegations against
Myers.”  He alleged that the information
had been shared with James Michael Baird, who was not a city employee.  Myers averred that “Baird was contacted and
enlisted to join in the continuing conspiracy to interfere with Myers’
employment as a peace officer and to ruin Myers’ career as a peace
officer.”  Myers alleged that Baird used
the information to have Myers ejected from two professional organizations.  
          Myers
named the City and city employees Darrell Kelemen, Jr., Tiffany Swanson,
Leslie Folk, Christina Garza, Sue Gallagher, Wayne Sabo, and Ray Smiley (hereinafter,
“the Employees”) as defendants.  Myers
also sued non-city employee, James Michael Baird. 
          Toward
the end of his Original Petition, Myers asserted,
4.46   The acts of
the individual defendants, individually and in continuing conspiracy one with
the others, have caused considerable loss and damage to Myers, including loss
of employment, damage to his personal reputation, damage to his professional
reputation, damage to his earning capacity, humiliation, emotional distress,
and loss of the enjoyment of life, in an amount within the jurisdictional
authority of this court.
 
          4.47   The acts of the individual defendants,
individually and in continuing conspiracy one with the other, were accomplished
maliciously, wantonly, in bad faith and in reckless disregard of the rights and
welfare of the plaintiff, Myers.
 
4.48   The City of Webster, acting through its officers and officials,
terminated Myers’ employment in violation of the provisions of the Texas
Constitution securing to Myers his liberty and property without deprivation by
due course of law, and consequently the termination of Myers’ employment is
void and of no effect.
 
4.49    The City of Webster adopted and ratified the wrongful actions of
the individual defendants at a time that the officers and officials of the City
knew or should have known that the treatment of Myers and the action taken
against Myers violated the provisions of the Equal Rights Amendment to the
Texas Constitution, entitling Myers to a declaration and provision of
appropriate remedies by this Court.
 
In his prayer for relief, Myers requested, inter alia, (1)
“restoration to his rightful place in the City of Webster Police Department,” (2)
“an award of damages from the individual defendants, jointly and severally,”
(3) “an award of damages from the City of Webster to the full extent allowed by
law,” and (4) an award of “punitive damages against each of the individual
defendants . . . .”
          The City filed
a motion to dismiss Myers’ claims against the Employees pursuant to Texas Tort
Claims Act section 101.106(e).[2]  The trial court denied the City’s motion, and
this interlocutory appeal followed.  In
one issue, the City contends that the trial court erred when it denied its
motion to dismiss.  
Jurisdiction over Interlocutory Appeal
          As a
threshold matter, we address Myers’s contention that this interlocutory appeal
should be dismissed for lack of subject-matter jurisdiction.  
Appellate courts have jurisdiction
to consider immediate appeals of interlocutory orders only when a statute
explicitly confers such jurisdiction.  Tex. A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835, 840 (Tex. 2007).  Section
51.014(a) of the Civil Practice and Remedies Code allows an appeal from an
interlocutory order that
(5) denies a motion for summary judgment that is based on
an assertion of immunity by an individual who is an officer or employee of the
state or a political subdivision of the state . . . .
 
Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a)(5) (Vernon 2008).  The City asserts that this provision permits it
to appeal the order denying its motion to dismiss.  We agree.
As it relates to the issue of
appellate jurisdiction, it is not significant that the City sought dismissal of
Myers’s claims against the Employees by filing a motion to dismiss rather than
by filing a motion for summary judgment, as referenced in section 51.014(a)(5).  The Supreme Court of Texas held recently held
in Austin State Hospital v. Graham
that “an appeal may be taken from orders denying an assertion of immunity, as
provided in section 51.014(a)(5), regardless of the procedural vehicle used,”
including a motion to dismiss filed under Tort Claims Act section 101.106(e).  Austin
State Hosp. v. Graham, No. 10–0674, 2011 WL 3796619, at *2 (Tex. Aug. 26,
2011).
          We recognize
that, under its language, section 51.014(a)(5) applies only if the City’s
motion to dismiss was based on an assertion of immunity.  Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(5).  Courts have indicated that when a
governmental unit seeks dismissal of the claims against an employee under subsection
101.106(e), such action is based on an assertion of immunity.  See Univ.
of Texas Health Sci. Ctr. at Houston v. Crowder, No. 14–10–00092–CV, 2011
WL 1413306, at *2 (Tex. App.—Houston [14th Dist.] Apr. 14, 2011, no pet.); Singleton v. Casteel, 267 S.W.3d 547,
549–50 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied); see also
Franka v. Velasquez, 332 S.W.3d 367, 371 n.9 (Tex. 2011) (stating that
section 101.106 confers immunity in some instances to employees of governmental
units).
          In his brief,
Myers intimates that the City does not have standing to appeal the order
denying the motion to dismiss.  Myers
suggests that the Employees should have appealed the order, not the City.  
Tort Claims Act 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.”  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2011) (emphasis
added).  Thus, the governmental unit
moves for dismissal of the claims against its employee; the employee does not
move for dismissal under subsection (e).  See id.;
see also Hernandez v. City of Lubbock,
253 S.W.3d 750, 753–56
(Tex. App.—Amarillo 2007, no pet.) (holding that motion to dismiss employee
filed under section 101.106(e) must be filed by governmental unit, not employee).  In line with this provision, the City moved
to dismiss Myers’s claims against the Employees, and it is the only party
seeking to appeal the order denying the motion. 

Under section 51.014(a)(5), a party
appeals the denial of a motion “that is based on an assertion of immunity by an
individual . . .”  See Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(a).  The
plain language of that section does not require that the underlying motion be
filed by the individual asserting immunity. 
See id.  The Supreme Court of Texas has held that
if an entity has standing to seek dismissal in the trial court based on the
assertion of immunity of its employees, then it also had standing to appeal
under of section 51.014(a)(5).  City of Beverly Hills v. Guevara, 904
S.W.2d 655, 656 (Tex. 1995) (holding that city could appeal denial of its
summary-judgment motion under section 51.014(a)(5), even though its employee
did not file any summary-judgment motion, because the city sought dismissal
based on the employee’s official immunity); see
Crowder, 2011 WL 1413306, at *2. 
Thus, because the City was authorized to file the section 101.106(e)
motion to dismiss to assert the Employees’ immunity claims, it was likewise
authorized to appeal the denial order under of section 51.014(a)(5).  See
Guevara, 904 S.W.2d at 656; Crowder, 2011 WL 1413306, at *2.  
For the reasons discussed, we hold
that this Court has appellate jurisdiction to review the trial court’s order
denying the City’s motion to dismiss.  See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(5).  We overrule Myers’s contention disputing appellate
jurisdiction.


 
Motion to Dismiss Pursuant to Tort Claims Act Subsection 101.106(e)
          The City presents
one issue on appeal asserting that the trial court erred when it denied its
motion to dismiss Myers’s claims against the Employees.  The City asserts that Myers’s claims against
the Employees are barred and must be dismissed under subsection 101.106(e) of
the Tort Claims Act.  
A.      Standard of Review
Generally, we review a trial court’s
order on a motion to dismiss under an abuse of discretion standard.  Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.
2001); Kanlic v. Meyer, 230 S.W.3d
889, 892 (Tex. App.—El
Paso 2007, pet. denied).  However, the
proper standard of review is not necessarily determined by the type of motion
to which the order relates, rather it is determined by the substance of the
issue to be reviewed.  Singleton, 267 S.W.3d at 550 (citing In re Doe, 19 S.W.3d 249, 253 (Tex. 2000)).
 
Here, the City’s motion to dismiss raised
an issue of immunity as conferred by section 101.106 of the Tort Claims Act.  See id.;
see also Franka, 332 S.W.3d at 371
n.9 (stating that section 101.106 confers immunity in some instances to
employees of governmental units).  If
immunity applies, the trial court lacks subject matter jurisdiction over the
case.  See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
224 (Tex. 2004); see also Univ. of Tex. Health
Sci. Ctr. at San Antonio v. Webber-Eells, 327 S.W.3d 233, 240 (Tex.
App.—San Antonio 2010, no pet.) (stating that section 101.106 is a jurisdictional statute involving the waiver
of immunity).  Subject matter jurisdiction
is a question of law which we review de novo.  Id.
at 226.  Likewise, matters of statutory
construction are reviewed under a de novo standard.  City of
San Antonio v. Boerne, 111 S.W.3d 22, 25 (Tex. 2003); see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.
2009).
B.      Tort Claims Act: Election of Remedies 
The Texas Tort Claims Act
establishes a limited waiver of immunity and caps damages for certain suits
against governmental entities.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.023 (Vernon 2011).  To avoid the act’s damages cap and other
strictures, plaintiffs began suing individual governmental employees.  Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 656 (Tex. 2008).  The state legislature responded by creating an
election-of-remedies provision.  Id.  As first enacted, section 101.106 barred any
action against governmental employees after claims against the governmental
unit were reduced to a judgment or settled.[3]
 However, it did not preclude a plaintiff
from pursuing alternative theories against both the employee and the
governmental employer before judgment was signed.  Id.  
In 2003, the legislature amended
section 101.106.  Id.  Currently, the section,
entitled “Election of Remedies,” provides as follows:
(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.
 
Tex. Civ. Prac. &
Rem. Code Ann. § 101.106.
          The legislature’s
apparent purpose in revising section 101.106 was “to force a plaintiff 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.”  Garcia,
253 S.W.3d at 657.  “By requiring a
plaintiff to make an irrevocable election at the time suit is filed between
suing the governmental unit under the Tort Claims Act or proceeding against the
employee alone, section 101.106 narrows the issues for trial and reduces delay
and duplicative litigation costs.”  Id.
C.      Subsection 101.106(e) and the Parties’
Contentions
          To reiterate,
subsection 101.106(e)—the provision under which the City moved to dismiss the
Employees from this case—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).  In Garcia, the supreme court explained that
“under this chapter” does not limit section 101.106(e)’s reach to tort claims
for which the Tort Claim Act waives immunity. 
Garcia, 253 S.W.3d at 658
(“[W]e have never interpreted ‘under this chapter’ to only encompass tort
claims for which the Tort Claims Act waives immunity.”).  The court reasoned that, because the Tort
Claims Act was the only avenue for common-law recovery against a governmental
unit, all tort claims against such entities were assumed to be “under this
chapter” for purposes of section 101.106. 
Id. at 659.  This includes intentional torts.  Id.  Accordingly, if a plaintiff brings any
state common law tort claim against both a governmental unit and its employees,
subsection 101.106(e) will allow the employee defendants to be dismissed on the
motion of the governmental unit.  See id. 

The Garcia court also held that claims against the government brought
pursuant to waivers of sovereign immunity that exist apart from the Tort Claims
Act are not brought “under [the Tort Claims Act].”  Id.;
see Kelemen v. Elliott, 260 S.W.3d
518, 523 (Tex. App.—Houston [1st Dist.] 2008, no pet.).  The court held that the
plaintiffs’ claim against the governmental unit for violating Texas Commission
on Human Rights Act (“TCHRA”) was not a suit filed “under” the Tort Claims Act.
 Garcia,
253 S.W.3d at 659.  The Garcia
court explained that the Tort Claims Act provides that the remedies it
authorizes “are in addition to any other legal remedies.”  Tex.
Civ. Prac. & Rem. Code § 101.003 (Vernon 2011).  The court stated that the TCHRA claim “would
not come within subsection (e)’s purview because the Tort Claims Act expressly
provides that the remedies it authorizes are in addition to any other legal
remedies, and the TCHRA provides a statutory remedy for unlawful
discrimination.”  Garcia, 253 S.W.3d at 659; see
Kelemen, 260 S.W.3d at 523 (holding that plaintiff’s claim under TCHRA and
Whistleblower Act were not claims “under” the Tort Claims Act); Swain v. Hutson, No. 02-09-00038-CV, 2009
WL 3246750, at *6 (Tex. App.—Fort
Worth 2009, pet. denied) (mem. op.) (holding that a federal section 1983 claim
is not a claim brought under the Tort Claims Act).
          Here, the
City contends that subsection (e) bars Myers’s claims against the Employees
because, in his Original Petition, Myers
sued both the City and the Employees for the common-law tort of conspiracy.  Myers does not dispute that conspiracy
qualifies as a claim “under” the act for section 101.106 purposes.  Instead, he asserts that he has sued only the
Employees in their individual capacities for conspiracy.  Myers contends that he alleged only
constitutional claims against the City seeking equitable relief, claims that do
not fall under the Tort Claims Act.  See City of Elsa v. M.A.L., 226 S.W.3d
390, 392 (Tex. 2007) (holding that governmental entity could be sued for
equitable and injunctive relief based on alleged constitutional violations); Brand v. Savage, 920 S.W.2d 672, 674
(Tex. App.—Houston [1st Dist.] 1995, no writ) (“[S]tate and federal
constitutional claims are not barred by immunity.”).  
Thus, we are tasked with determining
whether Myers asserted a common law tort claim against both the Employees and
the City in his Original Petition.[4]  If he has, then Myers’s claims against the
Employees are barred by subsection 101.106(e), and the Employees must be
dismissed from the suit.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.106(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.”).   
D.      Analysis
          Myers contends
that the acts he attributed to the individual employees to support his
conspiracy claim against them are separate and distinct from the acts he
attributed to the City to support his constitutional claims against it.  See Kelemen,
260 S.W.3d at 522 (holding, in a case in which plaintiff sued governmental unit
only for statutory claims and sued employee only for common law tort claims,
that subsection (e) did not require dismissal of employee because plaintiff’s
statutory claims against governmental unit were based on conduct distinct from
that conduct on which tort claims against employee were based).  Myers asserts that, in his Original Petition, the
facts and allegations supporting his conspiracy claim against the Employees are
found in separate paragraphs from his constitutional claims against the
City.  He contends that the language of
the petition makes clear that his conspiracy claims against the Employees arise
from the autonomous acts of the individual employees.  Myers asserts that it is clear from the
petition that his constitutional claims arise from the City’s act of
terminating him only after the completion of the acts constituting the
conspiracy.  He points out that his
damages request from the Employees is separate from his damages request from
the City.  
          A
review of Myers’s petition reveals that he set forth the acts of each
individual employee that he contends supports his conspiracy claim against the
Employees in their individual capacities. 
Nonetheless, Myers’s Original Petition also explicitly identifies the
City as a participant in the conspiracy and details the City’s acts which furthered
the conspiracy.  Specifically, in
Paragraph 4.43 of the Original Petition, Myers asserted: “In
further pursuit of the continuing
conspiracy against Myers, the City of
Webster, through its officials, unlawfully released information regarding
sexual harassment allegations against Myers.” 
(Emphasis added.)  This was an
express allegation of an act of conspiracy against the City.  It was not conduct related to the City’s
later act of termination; it was alleged to be part and parcel of the alleged
conspiracy to damage Myers’s law enforcement career aside from his termination
of employment.
As he points
out, Myers’s emphasized in his Original Petition that he was suing the
Employees in their individual capacity. 
More particularly, Paragraphs 4.46 and 4.47 provide as follows:
4.46   The acts of
the individual defendants, individually and in continuing conspiracy one with
the others, have caused considerable loss and damage to Myers, including loss
of employment, damage to his personal reputation, damage to his professional
reputation, damage to his earning capacity, humiliation, emotional distress,
and loss of the enjoyment of life, in an amount within the jurisdictional
authority of this court.
 
4.47   The acts of
the individual defendants, individually and in continuing conspiracy one with
the other, were accomplished maliciously, wantonly, in bad faith and in reckless
disregard of the rights and welfare of the plaintiff, Myers.
 
Myers also points out that he pled
a constitutional claim against the City based on the City’s act of terminating
his employment, which he alleges occurred post-conspiracy.  In this regard, he pled,
4.48   The City of
Webster, acting through its officers and officials, terminated Myers’
employment in violation of the provisions of the Texas Constitution securing to
Myers his liberty and property without deprivation by due course of law, and
consequently the termination of Myers’ employment is void and of no effect.
 
          In addition
to these allegations, Myers asserted in Paragraph 4.49: 
4.49    The City of
Webster adopted and ratified the wrongful actions of the individual defendants
at a time that the officers and officials of the City knew or should have known
that the treatment of Myers and the action taken against Myers violated the
provisions of the Equal Rights Amendment to the Texas Constitution, entitling
Myers to a declaration and provision of appropriate remedies by this Court.
 
In his brief, Myers asserts, “No
act of conspiracy is asserted with respect to the claim of denial of equal protection
in the Texas Constitution.  Mere
ratification of an action of employees, as alleged in Paragraph 4.49, after the
conspiratorial acts have been accomplished, cannot constitute joining a
conspiracy.”  However, as pointed out by
the City, Myers does more than allege that the City has ratified and adopted
the alleged tortious acts of the individual employees.  Myers also requested damages against the City
in addition to his request for equitable relief.  In his prayer for relief, Myers sought “an
award of damages from the City of Webster to the full extent allowed by
law.”  
          Texas courts
have held that a claim seeking damages for alleged constitutional violations is
brought under the Tort Claims Act for purposes of section 101.106.  See,
e.g., Nkansah v. Univ. of Tex. at Arlington, No. 02–10–00322–CV, 2011 WL 4916355, at *2 (Tex. App.—Fort Worth Oct.
13, 2011, no pet. h.) (mem. op.); City of
Arlington v. Randall, 301 S.W.3d 896, 903 (Tex. App.—Fort Worth 2009, pet. denied); Burdett v. Doe, No. 03–06–00198–CV, 2008 WL 5264913, at *3 (Tex. App.—Austin Dec. 17, 2008, no
pet.) (mem. op.).  Although he framed his
claims against the City as constitutional, Myers supported those claims with
allegations that the City had adopted and ratified the tortious acts of the
Employees.  By seeking damages from the
City, Myers was advancing his claims against the City based either on the tortious
conduct of the Employees adopted and ratified by the City or on the City’s own
acts of conspiracy as alleged by Myers in the Original Petition.  See Burdett,
2008 WL 5264913, at *3; see also City of
Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (holding that money damages cannot be awarded for violations of
the Texas Constitution but that injunctive relief is available).  In
short, the Original Petition demonstrates that Myers filed suit under the Tort
Claims Act against both the City and the Employees.  See Tex. Civ. Prac. & Rem. Code Ann. §
101.106(e).  
For the foregoing reasons, we
conclude that Myers has filed suit under the Tort Claims Act against the
Employees within the meaning of section 101.106(e).  See
id.  We hold that the trial court reversibly
erred when it denied the City’s motion to dismiss the claims against the
Employees.  
          We sustain
the City’s sole issue.


 
Conclusion
          We reverse
the order of the trial court denying the City’s motion to dismiss and render
judgment dismissing the Employees from the pending suit in the trial court.  See id.
(providing that employees shall immediately be dismissed on the filing of a
motion by the governmental unit).
 
 
                                                          Laura
Carter Higley
                                                                   Justice

 
Panel consists of Justices
Keyes, Higley, and Massengale.




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


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


[3]           Former section 101.106 provided as
follows: “A judgment in an action or a settlement of a claim under this chapter
bars any action involving the same subject matter by the claimant against the
employee of the governmental unit whose act or omission gave rise to the
claim.” Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen.
Laws 3242, 3305 (current version at Tex.
Civ. Prac. & Rem. Code Ann. §
101.106).


[4]           Myers has filed an amended petition;
however, we must look to Myers’s Original Petition, rather than his amended
petition, in deciding whether a tort claim was brought against the City for
purposes of the section 101.106(e) analysis.  See
Brown v. Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (concluding that
plaintiff’s original petition, not amended petition, is proper pleading to
scrutinize in determining whether dismissal under section 101.106(e) is
appropriate); Villasan v. O’Rourke,
166 S.W.3d 752, 762 (Tex. App.—Beaumont
2005, pet. denied) (holding that amending petition does not avoid mandatory
language of section 101.106(e) when dismissal of government employee is
appropriate based on original petition).


