Affirmed and Memorandum Opinion filed September 23, 2014.




                                   In The

                   Fourteenth Court of Appeals

                            NO. 14-14-00180-CV

 HARRIS COUNTY COMMUNITY SUPERVISION AND CORRECTIONS
                 DEPARTMENT, Appellant
                                     V.
                         PAULA TREJO, Appellee

                  On Appeal from the 215th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2013-32589

                MEMORANDUM                   OPINION

     The Harris County Community Supervision and Corrections Department
brings this interlocutory appeal from the denial of its motion for summary
judgment based on the election of remedies provision of the Texas Tort Claims
Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106. We affirm.

     Appellee Paula Trejo sued Harris County and an employee of the
Department for personal injuries Trejo sustained as a result of the negligent
operation of a motor vehicle. The employee moved for dismissal under Section
101.106(f).1 After thirty days had passed, Trejo nonsuited her claims against both
defendants. Trejo then sued the Department in this case based on the same claim.
The Department filed a motion for summary judgment contending that Section
101.106(b) 2 barred suit against it because Trejo had made an irrevocable election
to sue the employee and failed to comply with Section 101.106(f)’s thirty-day time
period for substituting the governmental unit (i.e., the Department). 3 The trial
court denied the motion, and the Department appeals.

       The Department is wrong.            The Texas Supreme Court has rejected the
Department’s argument. See Tex. Adjutant Gen. Office v. Ngakoue, 408 S.W.3d
350, 359 (Tex. 2013) (“TAGO contends, and the dissent would hold, that
[subsection (f)] sets out a specific procedure that must be followed by a plaintiff—
dismissal of the employee and addition of the government as defendant within
thirty days of the employee’s filing the motion—to avoid the bar in subsection (b).
We disagree. This portion of subsection (f) simply provides a procedure by which
an employee who is considered to have been sued only in his official capacity will
be dismissed from the suit. . . . TAGO was not entitled to dismissal, however,
because subsection (b) does not apply when an employee is considered to have
       1
          Tex. Civ. Prac. & Rem. Code Ann. § 101.106(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.”).
       2
         Tex. Civ. Prac. & Rem. Code Ann. § 101.106(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.”).
       3
         The Department acknowledged in the trial court and on appeal that the employee was
sued for conduct within the general scope of his employment.

                                                2
been sued in his official capacity only, and because immunity was otherwise
waived under the [Texas Tort Claims Act].”). Similarly, this court has rejected the
Department’s argument in a case involving personal injury resulting from the
negligent use of a motor vehicle, as here, because a governmental unit has
consented to such a lawsuit. See City of Houston v. Rodriguez, 369 S.W.3d 262,
266 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(1); Amadi v. City of Houston, 369 S.W.3d 254 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (en banc)).

       Of the three courts of appeals decisions the Department relies upon in its
brief, 4 this court expressly declined to follow two of them. See id. at 266–67. The
Texas Supreme Court was not persuaded by any of them. See Ngakoue, 408
S.W.3d at 367 n.7 (Boyd, J., dissenting) (citing the Department’s cases as contrary
to the majority).

       For the reasons stated in Ngakoue and Rodriguez, we conclude that the
Department did not meet its summary judgment burden to establish that it is
entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c).

       We overrule the Department’s sole issue on appeal and affirm the trial
court’s order denying the Department’s motion for summary judgment.



                                   /s/            Sharon McCally
                                                  Justice

Panel consists of Justices McCally, Brown, and Wise.

       4
        See Univ. of Tex. Health Sci. Ctr. at San Antonio v. Webber-Eells, 327 S.W.3d 233
(Tex. App.—San Antonio 2010, no pet.); Huntsville Indep. Sch. Dist. v. Briggs, 262 S.W.3d 390
(Tex. App.—Waco 2008, pet. denied); Tex. Dep’t of Agric. v. Calderon, 221 S.W.3d 918 (Tex.
App.—Corpus Christi 2007, no pet.).

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