Reversed and Remanded and Memorandum Opinion filed December 22, 2011.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00413-CV


       CEDRIC AUTHORLEE AND KENNETH PATTERSON, Appellants

                                           V.

  METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, Appellee


                      On Appeal from the 164th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2010-24026


                  MEMORANDUM                        OPINION


      In this appeal, appellants Cedric Authorlee and Kenneth Patterson appeal from the
trial court’s order granting the plea to the jurisdiction filed by appellee Metropolitan
Transit Authority of Harris County (Metro). We reverse and remand.

                                        BACKGROUND

      Appellants simultaneously sued Metro and its employee, Steve Johnson, who was
driving a Metro-owned bus, which collided with a vehicle occupied by appellants
resulting in personal injury to appellants. Metro filed a motion to dismiss its employee,
Johnson, pursuant to the election-of-remedies provision of the Texas Tort Claims Act
(TTCA). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). The trial court granted
Metro’s motion to dismiss Johnson. Metro subsequently filed a plea to the jurisdiction,
contending that appellants’ claims against it should be dismissed pursuant to section
101.106(b) of the election-of-remedies provision. See id. § 101.106(b). The trial court
granted Metro’s plea to the jurisdiction and this appeal followed.

                                      STANDARD OF REVIEW

       Governmental immunity from suit defeats a trial court’s subject matter jurisdiction
and is properly asserted in a plea to the jurisdiction. Gatesco, Inc. Ltd. v. City of
Rosenberg, 312 S.W.3d 140, 144 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)). We review the trial court’s
ruling on a plea to the jurisdiction under a de novo standard. City of Dallas v. Carbjal,
324 S.W.3d 537, 538 (Tex. 2010); Miranda, 133 S.W.3d at 228.

                                             ANALYSIS

       In its first issue, appellants assert that, following this court’s decisions in Amadi v.
City of Houston,1 and City of Houston v. Rodriguez,2 the trial court erred in granting
Metro’s plea to the jurisdiction. In the trial court, Metro argued that it was entitled to the
dismissal of appellants’ claims against it pursuant to section 101.106(b).

       Section 101.106(e)—the provision under which Metro moved to dismiss Johnson
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.


       1
          No. 14-10-01216-CV, — S.W.3d —, 2011 WL 5099184, at *8 (Tex. App.—Houston [14th
Dist.] Oct. 27, 2011, no pet. h.) (op. on reh’g en banc).
       2
         No. 14-11-00136-CV, — S.W.3d —, 2011 WL 5244366, at *2–3 (Tex. App.—Houston [14th
Dist.] Nov. 3, 2011, no pet. h.) (op. on reh’g).

                                              2
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). Once the governmental unit files a
motion to dismiss the claims against its employee under section 101.106(e), the trial court
must grant the motion and dismiss the claims against the employee from the suit.
Waxahachie Indep. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex. App.—Waco 2005,
pet. denied). In this case, the trial court granted the motion to dismiss Johnson.

       After Johnson was dismissed, Metro further sought the dismissal of appellants’
claims against itself pursuant to section 101.106(b), which provides:

       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.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(b).

       Metro argues that the governmental unit has immunity from suit under subsection
(b) when a plaintiff files suit simultaneously against the governmental unit and its
employee regarding the same subject matter.         Specifically, Metro relies on Mission
Consolidated Independent School District v. Garcia, which states that ―to the extent
subsection (b) applies, it bars any suit against the governmental unit regarding the same
subject matter, not just suits for which the Tort Claims Act waives immunity or those that
allege common-law claims.‖ 253 S.W.3d 653, 659 (Tex. 2008). However, this court
recently rejected these identical arguments in cases involving the simultaneous filing of
suit against the City of Houston and its employee. See Amadi, 2011 WL 5099184, at *8;
Rodriguez, 2011 WL 5244366, at *2–3.

       Subsection (b) applies to bar a plaintiff’s recovery against the governmental unit
only when the governmental unit has not consented to suit. Amadi, 2011 WL 5099184, at
*4. In this case, as in Amadi and Rodriguez, Metro consented to suit based on the alleged
negligent use or operation of a motor-driven vehicle. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.021 (providing for a waiver of immunity for property damage and personal
injuries resulting from the negligent operation or use of a motor-driven vehicle or motor-
driven equipment); see also Rodriguez, 2011 WL 5244366, at *3; Amadi, 2011 WL

                                             3
5099184, at *4.

       Therefore, under the plain language of subsection (b), the simultaneous filing of
suit against Metro and Johnson does not bar appellants’ suit against Metro because Metro
has consented to suit in this case. See Amadi, 2011 WL 5099184, at *8; see also
Rodriguez, 2011 WL 5244366, at *3 (applying Amadi and holding that subsection (b) did
not bar the plaintiff’s claims against the City because the City’s immunity relative to the
claims was waived under the TTCA). Because Metro was not entitled to dismissal
pursuant to section 101.106(b), we sustain appellants’ first issue.

       Accordingly, we reverse the trial court’s judgment and remand for proceedings
consistent with this opinion.



                                                  PER CURIAM



Panel consists of Justices Frost, Seymore, and Jamison.




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